Erdman v. State

861 S.W.2d 890, 1993 Tex. Crim. App. LEXIS 106, 1993 WL 160029

• Court: Court of Criminal Appeals of Texas
• Decided: May 19, 1993
• Docket: 1175-90
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant, Daniel Gig Erdman, was arrested and charged with the offense of driving while intoxicated (D.W.I.). See Tex.Rev.Civ. Stat. art. 6701Z — 1(b). He later filed a motion to suppress the results of an intoxilyzer test administered to him shortly after his arrest. The trial court overruled the motion, however, after an evidentiary hearing. Appellant then pled nolo contendere but reserved the right to appeal the suppression question. See Tex.Code Crim.Proc. art. 44.02.. The trial court assessed appellant’s punishment at incarceration for one year (probated for two years) and a fine of $600. The Fourteenth Court of Appeals subsequently affirmed the trial court’s judgment. Erdman v. State, 796 S.W.2d 243 (Tex.App.—Houston [14th Dist.] 1990). We granted appellant’s petition for discretionary review¹ to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion in refusing to suppress the intoxilyzer test results. We now reverse.

I

The relevant facts are not in dispute. At approximately 12:20 a.m., March 27, 1989, a Harris County deputy sheriff observed a Mercedes automobile “weaving” from lane to lane on a Harris County highway. Although the deputy activated his patrol unit’s siren, overhead lights, and spotlight, the Mercedes continued down the highway almost a mile before pulling over and stopping. The deputy then approached the Mercedes on foot and asked the driver (appellant) to step out. Appellant stumbled out of his automobile, and the deputy, who smelled alcohol on appellant’s breath and believed him to be “highly intoxicated,” arrested him immediately. The deputy then radioed for another patrol unit to take appellant to the county jail.

A Department of Public Safety (D.P.S.) trooper responded to the deputy’s radio call and arrived at the scene at 12:30 a.m. The trooper took appellant into custody and proceeded to a county jail annex in Humble, arriving there at around 1:00 a.m. Upon arriving at the annex, the trooper asked appellant to submit to an intoxilyzer test. The trooper explained to appellant that if he took the test and “passed” it, he would not be charged with D.W.I. that night, but that if he took the test and “failed” it, he would be charged with D.W.I. that night. The trooper also warned appellant that if he refused to take the test, then (1) evidence of his refusal would be admissible against him in a subsequent prosecution, (2) his driver’s license would be suspended for 90 days, (3) D.W.I. charges would be filed against him, and (4) he would be placed in jail that night. After receiving this extensive warning, appellant consented to the intoxilyzer test. The test results indicated appellant was legally intoxicated.

In his written pretrial motion to suppress the intoxilyzer test results, appellant contended generally that his consent to the test was obtained involuntarily, in violation of Texas Revised Civil Statutes article 67011-5, § 2, and that the test results were therefore inadmissible under Texas Code of Criminal Procedure article 38.23. Article 6701Z-5 provides in pertinent part:

Sec. 1 Any person who operates a motor vehicle upon the public highways or upon a public beach in this state shall be deemed to have given consent, subject to the provisions of this Act, to submit to the taking of one or more specimens of his breath or blood for the purpose of analysis to determine the alcohol concentration or the presence in his body of a controlled substance or drug if arrested for any offense arising out of acts alleged to have been committed while a person was driving or in actual physical control of a motor vehicle while intoxicated_ The specimen, or specimens, shall be taken at the request of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways or upon a public beach in this state while intoxicated.

Sec. 2 (a) [With an exception not applicable here], if a person under arrest refuses, upon request of a peace officer, to give a specimen designated by the peace officer as provided in Section 1, none shall be taken.

(b) Before requesting a person to give a specimen, the officer shall inform the person orally and in writing that if the person refuses to give the specimen, that refusal may be admissible in a subsequent prosecution, and that the person’s license, permit, or privilege to operate a motor vehicle will be automatically suspended for 90 days ..., whether or not the person is subsequently prosecuted as a result of the arrest.

(Emphasis added.) Article 38.23 provides in pertinent part:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted against the accused on the trial of any criminal case.

At the hearing on the suppression motion, defense counsel argued more specifically that appellant’s consent to the intoxilyzer test was involuntary because it was psychologically coerced:

I think that the court needs to be very sensitive about what a [peace officer] can tell a defendant with respect to the sanctions provided by the statute and what he can’t tell a defendant. As far as sanctions under the statute, if you refuse a breath test under Texas law, only two things can happen by statute. One, that you lose your license for ninety days.... And two, a jury can be told the fact that the person refused. Well, [the D.P.S. trooper here] addresse[d] something more. He indicate[d] that — and I believe this goes to the issue of coercion — that if you don’t take the test, you are, in effect, volunteering to go to jail. If you don’t take the test, you are volunteering to have D.W.I. charges filed against you. Those are pretty severe sanctions....

The State counterargued that “the defendant made the decision [to] take that breath test without any real coercion. The [trooper] simply stated the facts.”

At the end of the suppression hearing, the trial court concluded, “I do not think that [the trooper’s warning] was coercive in nature. I think that [it] was explanatory and reasonably accurate in light of the situation there.... I will not suppress the breath test.”

The court of appeals upheld the trial court’s ruling, explaining that it discerned no abuse of discretion on the part of the trial court. Although the court of appeals conceded that the D.P.S. trooper warned appellant erroneously with regard to the direct consequences of a refusal to submit to a breath test, the court of appeals concluded that the erroneous warning was not “so coercive as to render the consent involuntary.” Erdman v. State, 796 S.W.2d at 244.

In his brief before this Court, appellant argues that Article 6701 Z-5, § 2(b), “provides that the consequences [of] refusal to furnish a ... breath sample are limited to the suspension of the [motorist’s] driver’s license for 90 days and the admissibility of [that] refusal [in evidence] if the [motorist] is subsequently prosecuted;” that the statute implicitly prohibits peace officers from “threatening] motorists with sanctions ... not permitted by the statute;” that the D.P.S. trooper’s misstatement of the direct consequences of refusal “was more than enough to render ... appellant’s consent involuntary;” that the results of the intoxilyzer test were thus obtained in violation of Article 6701 ¿ — 5, § 2, and were inadmissible under Article 38.23; and that, therefore, the trial court abused its discretion in refusing to suppress the intoxilyzer test results.

In its reply brief, the State argues that it carried its burden of proving that appellant’s consent to the intoxilyzer test was voluntary² and that, therefore, the trial court did not abuse its discretion in refusing to suppress the breath test results. In particular, the State argues that “[w]hat [the trooper] said about a refusal [to submit to an intoxilyzer test] was true, as a practical matter,” because “[i]t was virtually certain that a prosecutor would file a D.W.I. case in the event of a refusal.” The State argues further that, as a matter of law, “[f]actually true statements are neither coercive nor deceptive.”

II.

A trial court’s ruling concerning the admission or exclusion of evidence may not be disturbed on appeal unless an abuse of discretion is shown. Rivera v. State, 808 S.W.2d 80, 96 (Tex.Cr.App.1991). Of course, a trial court necessarily abuses its discretion if it refuses to suppress evidence that was obtained in violation of state statutory law and is, therefore, inadmissible under Article 38.23.

Article 6701Z — 5, § 2, provides (with an exception not applicable here) that if a person under arrest for D.W.I. refuses to submit to a breath test, “none shall be taken.” The same section provides that a person so arrested must be warned that two specific consequences — only two — will definitely and directly result from a refusal to submit to a breath test: the person’s driver’s license will be suspended for 90 days and evidence of her refusal will be admissible against her in court. The Legislature has provided that only these two sanctions will directly result from a refusal to submit to a breath test.

We have recognized previously that, under Article 67012-5, § 2, a suspect’s consent to a breath test must be “voluntary,” Turpin v. State, 606 S.W.2d 907, 914 (Tex.Cr.App.1980), and that the section “requires that a suspect’s refusal to provide a breath sample be strictly honored.” McCambridge v. State, 712 S.W.2d 499, 504 fn. 16 (Tex.Cr.App.1986). Thus, it is implicit in Article 6701 Ir-5, § 2, that a suspect’s decision to submit to a breath test must truly be her own, made freely and with a correct understanding of the actual statutory consequences of refusal. To be “voluntary” and thus consistent with the statutory scheme, a suspect’s decision to submit must not be the result of physical or psychological pressures brought to bear by law enforcement officials. Forte v. State, 759 S.W.2d 128, 138 (Tex.Cr.App.1988) (consent to breath test involuntary if induced by physical force); Hall v. State, 649 S.W.2d 627, 628 (Tex.Cr.App.1983) (consent to breath test involuntary if induced by misstatement of direct statutory consequences arising from refusal). 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 Article 67012-5, § 2, then suspects could easily be coerced into submission, and the protection afforded by this statutory section would be undermined.

Here, appellant consented to the in-toxilyzer test only after the trooper gave him warnings, both contemplated and not contemplated by Article 67012-5, concerning the consequences of refusal. The non-statutory information conveyed to appellant (that he would be jailed and charged with D.W.I.) was of the type that would normally result in considerable psychological pressure upon a D.W.I. suspect to consent to the taking of a breath sample. Given the complete absence of any record evidence showing that this non-statutory information given to appellant had no bearing on his decision to consent, no rational factfinder could conclude that the State carried its burden of showing that appellant’s consent was voluntary. Thus, appellant’s consent to the intoxilyzer test was obtained in violation of Article 67011-5, § 2, and, therefore, the test results were inadmissible under Article 38.23. The trial court abused its discretion in refusing to suppress those test results.

It should not be gleaned from this opinion that we are concluding that the trooper necessarily acted in bad faith by warning appellant of sanctions not included in Article 6701 1-5, § 2. We are holding only that law enforcement officials must take care to warn D.W.I. suspects correctly about the actual, direct, statutory consequences of refusal. Any other information conveyed to D.W.I. suspects may have the effect — either intended or unintended — of undermining their resolve and effectively coercing them to consent.³

The judgment of the court of appeals is REVERSED and the case REMANDED to the trial court for further proceedings.

CLINTON, J.,

agreeing with the theory of inducement advanced in State v. Sells, 798 S.W.2d 865 (Tex.App.—Austin 1990), concurs in the judgment of the Court.

WHITE, J., concurs in the result.

1 . Appellant's ground for review reads as follows: "Whether the court of appeals utilized an incorrect standard of review in rejecting the contention that the appellant’s purported consent to submit to the intoxilyzer test was involuntarily obtained in violation of Article 38.23 [of the Texas Code of Criminal Procedure].’’ A complete reading of appellant's petition for discretionary review makes clear, however, that his complaint has nothing whatsoever to do with the appropriate appellate "standard of review.” Rather, appellant's true complaint is that the undisputed record evidence shows that his consent to the intoxilyzer test was involuntary and that the Fourteenth Court's holding to the contrary conflicted with State v. Sells, 798 S.W.2d 865 (Tex.App.—Austin 1990, no pet.). Indeed, the reason we granted review in this case was that the decisions of the two courts of appeals conflicted. See Tex.R.App.P. 200(c)(1).

2 . In its brief, the State forthrightly “agrees with the general proposition that [it] has a burden of showing voluntary consent to an intoxilyzer test.” We will assume without deciding, therefore, that under Article 6701 l-5, § 2, the State has the burden of showing voluntary consent to a breath test. For reasons that will become clear later in this opinion, we need not determine today the applicable standard of proof. See W. LaFave, Search and Seizure §§ 11.2(b) — (c) (1987).

3 . In State v. Sells, 798 S.W.2d 865 (Tex.App.—Austin 1990, no pet.), the Third Court of Appeals reached the same conclusion we do today on almost identical facts. There, a D.W.I. suspect was warned by a police officer shortly after his arrest that if he refused to submit to a breath test, he "would automatically be charged and incarcerated.” The suspect consented to the test but later contended that his consent had been psychologically coerced. The trial court agreed and suppressed the results of the breath test. The Third Court, citing our opinion in Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.1983), upheld the trial court’s ruling, explaining that "[i]f a driver’s consent [to a breath test] is induced by an officer’s misstatement of the consequences flowing from a refusal to take the test, the consent is not voluntary.” State v. Sells, 798 S.W.2d at 867.