Consequences of Refusing a Breathalyzer In Texas

The implied consent statute provides that a person arrested for an offense alleged to have arisen out of acts committed while operating a motor vehicle while intoxicated is deemed to have consented to the taking of samples for a breath or blood test. See Tex. Transp. Code Ann. 724.011 (West. 1999). Before an officer may request a breath specimen from a person arrested for DWI, the officer must inform the person of two consequences of refusing to submit a specimen: (1) the refusal may be admissible in a subsequent prosecution; (2) the person's driver's license will be automatically suspended. See id. 724.015(1)-(2) (West 1999). These warnings emphasize the importance of ensuring that the consent is given "freely and with a correct understanding of the actual statutory consequences of refusal." Erdman, 861 S.W.2d at 893 (discussing former article 6701l-5, 2 of Texas Revised Civil Statutes, since repealed and re-codified as 724.015 of Transportation Code). A person's consent to a breath test is voluntary only if it is not the result of physical or psychological pressures. See id. If the officer requesting a breath sample misstates the law and includes extra-statutory consequences of a refusal to submit to the breath test, the consent may be considered to have been involuntarily given. See Erdman, 861 S.W.2d at 893-94; Texas Dep't of Public Safety v. Rolfe, 986 S.W.2d 823, 827 (Tex. App.--Austin 1999, no pet.); State v. Sells, 798 S.W.2d 865, 867 (Tex. App.--Austin 1990, no pet.). Case law generally focuses only on extra-statutory warnings of consequences of refusing a breath test. See, e.g., Erdman, 861 S.W.2d at 893-94; Rolfe, 986 S.W.2d at 826; see also Ewerokeh, 835 S.W.2d at 796; Sells, 798 S.W.2d at 866 (pre-Erdman cases also considering extra-statutory warnings of refusal to take test). It is true, as appellant states, that Erdman was told of the consequences of passing and failing the intoxilyzer test. See Erdman, 861 S.W.2d at 891. He was also told, however, of the consequences of refusing the test. See id. The court of criminal appeals focused its analysis exclusively on the extra-statutory warnings concerning the consequences of refusing the test. See Erdman, 861 S.W.2d at 893-94. The court stated: A person arrested for DWI must be warned that two specific consequences--only two--will definitely and directly result from a refusal to submit to a breath test . . . . the Legislature has provided that only these two sanctions will directly result from a refusal to submit to a breath test. . . . If law enforcement officials were permitted to "warn" D.W.I. suspects--even correctly--that a refusal to submit would result in consequences not contemplated by the implied consent statute, then suspects could easily be coerced into submission, and the protection afforded by this statutory section would be undermined. Erdman, 861 S.W.2d at 893. The Erdman court indicated that the warning of additional, non-statutory consequences of refusal was inherently coercive and would give rise to the inference that the consent was coerced, requiring the State to present evidence that the consent was in fact voluntary. See Erdman, 861 S.W.2d at 894. In other words, because the warnings were conclusively coercive and the State presented no evidence showing the consent was voluntary, whether the defendant was actually coerced was not a fact question at the suppression hearing. See id. (no rational fact finder could conclude consent was voluntary). However, it is not enough simply to show extra-statutory warnings of any kind were given; in the absence of an extra-statutory warning that is inherently and necessarily coercive, the defendant must also show "a causal connection between the improper warning and the decision to submit to a breath test." Rolfe, 986 S.W.2d at 827.