Coerced Consent to Breath Test Consequences
What is the validity of consent given after hearing consequences of passing and failing a breath test ?
In State v. Serrano, 894 S.W.2d 74 (Tex. App.--Houston [14th Dist.] 1995, no pet.) Serrano was stopped for erratic driving, arrested for DWI, and asked if he would consent to taking an intoxilyzer test. See Serrano, 894 S.W.2d at 75.
He was told "if he passed the test he would be free to go but if he failed the test he would be put in jail for D.W.I.," and thereafter consented to the test. Id. at 75.
Serrano argued that his consent was coerced and the trial court granted his motion for new trial. See id.
The State appealed, arguing the trial court had abused its discretion in granting the new trial. See id.
The appellate court disagreed, holding that the trial court's decision to grant a new trial "was within the zone within which reasonable persons might disagree." Id. at 76.