Page 179 - Texas police Association Peace Officer Guide 2017

minor under Texas Penal Code § 33.021(b) and were sentenced to terms 1 of confinement in
2008 and 2011, respectively.

Although the State had a compelling interest in protecting children from sexual predators, §
33.021(b) was not narrowly drawn “because there are narrower means of achieving the State
interests advanced here, at least some of which are already covered by other statutes.”

Ex Parte Fournier, Tex. Ct. Crim. App. No. WR-82,102-01, Oct. 28, 2015.

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DUI – Implied Consent Statute Unconstitutional.

All States have laws that prohibit motorists from driving with a blood alcohol concentration
(BAC) exceeding a specified level. BAC is typically determined through a direct analysis of a
blood sample or by using a machine to measure the amount of alcohol in a person’s breath. To
help secure drivers’ cooperation with such testing, the States have also enacted “implied
consent” laws that require drivers to submit to BAC tests. Originally, the penalty for refusing a
test was suspension of the motorist’s license. Over time, however, States have toughened their
drunk-driving laws, imposing harsher penalties on recidivists and drivers with particularly high
BAC levels. Because motorists who fear these increased punishments have strong incentives to
reject testing, some States, including North Dakota and Minnesota, now make it a crime to refuse
to undergo testing.

Held:
1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving
but not warrantless blood tests.

Over time, improved breath test machines were developed. Today, such devices can detect the
presence of alcohol more quickly and accurately than before, typically using infrared technology
rather than a chemical reaction. These machines are generally regarded as very reliable because
the federal standards require that the devices produce accurate and reproducible test results at a
variety of BAC levels, from the very low to the very high. Measurement of BAC based on a
breath test requires the cooperation of the person being tested. The subject must take a deep
breath and exhale through a mouthpiece that connects to the machine. Typically the test subject
must blow air into the device “‘for a period of several seconds’” to produce an adequate breath
sample, and the process is sometimes repeated so that analysts can compare multiple samples to
ensure the device’s accuracy. When a standard infrared device is used, the whole process takes
only a few minutes from start to finish. Most evidentiary breath tests do not occur next to the
vehicle, at the side of the road, but in a police station, where the controlled environment is
especially conducive to reliable testing, or in some cases in the officer’s patrol vehicle or in
special mobile testing facilities.

A Peace Officer’s Guide to Texas Law 174 2017 Edition