breath or blood test in Texas

2025F. CONSENT TO BLOOD DRAW In his sixth issue, Bwondara contends that the State violated his rights by using “a forged DIC-24 form to obtain a warrantless blood draw.” We disagree. 11 “Any person who is arrested for DWI is deemed to have given consent to submit to providing a specimen for a breath or blood test for the purpose of determining alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance.” Fienen v. State, 390 S.W.3d 328, 332 (Tex. Crim.

2023“Any person who is arrested for DWI is deemed to have given consent to submit to providing a specimen for a breath or blood test for the purpose of determining alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance.” Id.

2015Leija v. State, No. 04-08-00679-CR, 2009 WL 331897 , at *3 (Tex. App.--San Antonio Feb.11, 2009, no pet.) (mem. op., not designated for publication) (concluding that a prosecutor may still comment on a refusal to submit to a breath or blood test in light of Bartlett); Vargas v. State, 271 S.W.3d 338, 341 (Tex. App.--San Antonio 2008, no pet.) (same).

2012A comment by the prosecutor on the refusal is permissible, Leija v. State, No. 04-08-00679-CR, 2009 Tex. App. LEXIS 923 , 2009 WL 331897 , at *3 (Tex. App.--San Antonio Feb.11, 2009, no pet.) (mem. op., not designated for publication) (concluding that a prosecutor may comment on a refusal to submit to a breath or blood test); Vargas v. State, 271 S.W.3d 338, 340 (Tex.App. -- San Antonio 2008, no pet.) (same), and the State may summarize evidence as part of its jury argument, which includes the failure to submit to a breath or blood test and that such failure is evidence of intoxication.

2021See Freeman v. State, 413 S.W.3d 198 , 203 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). (“These warnings explain among other things, some of the potential consequences of refusing or submitting to a breath or blood test.”).

2019See Freeman v. State, 413 S.W.3d 198 , 203 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Tex. Transp.

2014See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim.

2010Bartlett, 270 S.W.3d at 154 . 5 The decision in Bartlett simply states that the trial court should not instruct the jury as to how to use evidence that a defendant refused a breath or blood test; it did not rule that such evidence was inadmissible or that a jury could not consider it.

2011Erdman, 861 S.W.2d at 893 .

2010Erdman v. State , 861 S.W.2d 890, 893 (Tex. Crim.

2016See Neville, 459 U.S. at 560 ; see also McNeely, 133 S. Ct. at 1566 .

1990Consistent with the Supreme Court’s holding in South Dakota v. Neville, id., the Legislature authorized as admissible evidence of a defendant’s refusal to take a breath or blood test.

2003Santellan v. State , 939 S.W.2d 155, 169 (Tex. Crim.

2003Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997); Mody v. State, 2 S.W.3d 652, 654 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Moore, 981 S.W.2d at 708 ; see Tex.R.

1997Thomas v. State , 723 S.W.2d 696, 704 (Tex. Crim.

1997South Dakota v. Neville , 459 U.S. 553 (1983); Schmerber , 384 U.S. at 764 ; see also Thomas v. State , 723 S.W.2d 696, 704 (Tex. Crim.

1996Id.; Trombetta, 467 U.S. at 489 , 104 S.Ct. at 2534 ; McDonald, 863 S.W.2d at 543 .

1986See California v. Trombetta, 467 U.S., at 489, n. 10, 104 S.Ct., at 2534, n. 10 (evidence might be insufficient if State's case based solely on unreliable intoxilyzer machine). [11] We agree with appellant's argument that the new definition of "intoxication" provided by Article 6701 l -1(a)(2)(B), supra, in conjunction with a defendant's implied consent to the taking of a breath or blood test, see V.A.C.S., art. 6701 l -5 (Supp.1986), may remove much of the opinion testimony formerly necessary to prove intoxication.

2016See Neville, 459 U.S. at 560 ; see also McNeely, 133 S. Ct. at 1566 .

2014Relying on Section 724.012 of the Texas Transportation Code, Officer McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood draw. … Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that ‘is not what you do according to law or policy.’”).  Weems, --- S.W.3d at ---, 2014 WL 2532299, at *1, 3 (“No warrant was procured for the blood draw. … In this case, Officer Bustamante testified that the blood draw was administered because a person other than

2013See State v. Marrs, 104 S.W.3d 914, 919 (Tex. App.—Corpus Christi 2003, no pet.) (―A refusal or purported refusal to take a breath or blood test, like any other evidence, can be admitted as relevant evidence.‖).

2009Safety v. Vasquez, 225 S.W.3d 47, 52 (Tex. App.—El Paso 2005, no pet.). 3 reasonableness. 3 If there is evidence to support the ALJ’s findings, the ALJ’s decision must be upheld. 4 Any evidentiary ambiguities should be resolved in favor of the ALJ’s findings. 5 The burden for overturning an agency ruling is formidable.6 At a license suspension hearing, the Department bears the burden of proving: (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated;

2008Tex.Transp.Code Ann. § 724.012(c)(Vernon Supp. 2007); Aguirre v. State , 948 S.W.2d 377, 379 (Tex.App.--Houston [14th Dist.] 1997, pet. ref'd)(no law exists authorizing the officer to allow an accused to furnish a blood sample instead of taking a breath test).

2003Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997); Mody v. State, 2 S.W.3d 652, 654 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Moore, 981 S.W.2d at 708 ; see Tex.R.

1999Jamail v. State, 787 S.W.2d at 383 ; Gaddis v. State, 753 S.W.2d 396, 398-400 (Tex.Crim.App. 1988).

1999Jamail v. State, 787 S.W.2d at 383 ; Gaddis v. State, 753 S.W.2d 396, 398-400 (Tex.Crim.App.1988).

1999Jamail v. State, 787 S.W.2d at 383 ; Gaddis v. State, 753 S.W.2d 396, 398-400 (Tex.Crim.App. 1988).

1999A defendant has the right to introduce the reason he refused the breath test if it is relevant, Jamail v. State, 787 S.W.2d 380, 383 (Tex.Crim.App.1990), but our Court of Criminal Appeals has clearly held that the State is not required to introduce the reason the defendant refused to take a breath or blood test before it introduces evidence of the refusal.

1998Tex.Penal Code § 49.04(a) (1998); Tex.TraNSp.Code § 724.015(1-3) (1997); 2 Lane v. State, 951 S.W.2d 242, 243 (Tex.App.—Austin 1997, no pet.).

1998“When an objection to evidence is properly made, the subsequent presentation of essentially the same evidence without objection waives any complaint regarding the admission of the evidence.” Marling v. Maillard, 826 S.W.2d 735, 739 (Tex.App.—Houston [14th Dist.] 1992, no writ).

1991Tex.Rev.Civ.Stat.Ann. art. 6701l-5, § 1 (Vernon Supp.1991); Nebes v. State, 743 S.W.2d 729, 730 (Tex. App.—Houston [1st Dist.] 1987, no pet.).