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Taking A Breath or Blood Specimen

When it comes to driving while intoxicated, a law enforcement officer can take a child into custody under the same laws and circumstances as an adult. The same elements that must be proved to convict an adult in adult court would be required to adjudicate a juvenile in juvenile court. But for a law enforcement officer, how he or she obtains the evidence may be quite different than it is for an adult. In the usual child custody situation, the Family Code establishes strict restrictions on law enforcement interactions with children. It delineates exactly what an officer can do with a child once he or she is in custody, where he or she can be taken, the amount of time he or she can spend with an officer, as well as who must be notified and when. But the Code also contains certain special provisions just for children involved in operating a motor vehicle under the influence. These special provisions don’t do away with the strict Family Code requirements of juvenile arrest; they only postpone them.

The term “child” or “children” apply to persons between the ages of 10 and 17. The Texas Alcoholic Beverage Code Section 106.041 provides that a minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor’s system. This is not a DWI or an OWl-related offense. This offense is committed by a minor who operates a motor vehicle in a public place while having “any detectable amount of alcohol” in his or her system. Thus, all the elements are identical to a DWI offense except that any detectable amount of alcohol constitutes an offense rather than needing the alcohol consumption to rise to the level of intoxication.

The Texas Transportation Code Section 724.012(a) authorizes the taking of a person’s breath or blood if they are arrested for operating a motor vehicle while intoxicated or if a minor operates a motor vehicle with any detectable amount of alcohol in their system.

AUTHORIZATION FOR A CHILD’S BREATH OR BLOOD SPECIMEN

The Texas Family Code Section 52.02(c) provides that: “A person who takes a child into custody and who has reasonable grounds to believe that the child has been operating a motor vehicle in a public place while having any detectable amount of alcohol in their system may, before complying with Subsection (a):
(1) take the child to a place to obtain a specimen of the child’s breath or blood as
provided by Chapter 724, Transportation Code; and
(2) perform intoxilyzer processing and videotaping of the child in an adult processing office of a law enforcement agency.”

This provision provides directions to an officer as to where he or she can take a child when there has been a determination that the child has been operating a motor vehicle in a public place with “any detectable amount of alcohol” in his or her system (which would also include an OWl). This provision authorizes a child to be taken to a place to obtain a specimen of the child’s breath or blood as provided by Chapter 724, Transportation Code, and that the child may be videotaped in an adult processing office as opposed to a juvenile processing office. This provision does not dispense with the strict requirements of Section 52.02(a). To take a statement from a child, the officer would still need to comply with Texas Family Code Sections 52.02 and 51 .095. Section 52.02(c) simply allows a procedure for the collection of a breath or blood specimen prior to compliance with Section 52.02(a).

BREATH SPECIMEN: CHILD CAN SUBMIT OR REFUSE WITHOUT ATTORNEY

The Transportation Code Section 724.013 states: “Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”

The Texas Family Code addresses a child’s consent to a specimen in Section
52.02(d) which states: “(d) Notwithstanding Section 51.09(a), a child taken into custody as provided by Subsection (c) may submit to the taking of a breath specimen or refuse to submit to the taking of a breath specimen without the concurrence of an attorney, but only if the request made of the child to give the specimen and the child’s response to that request is videotaped. A videotape made under this subsection must be maintained until the disposition of any proceeding against the child relating to the arrest is final and be made available to an attorney representing the child during that period.”

The first phase of this provision, notwithstanding Section 51 .09(a), creates a special exception to the strict lawyer requirement as set out in Section 51 .09(a). As a result, the provision allows a child to submit to the taking of a breath specimen or refuse the taking of a breath specimen without an attorney if the request and response is videotaped. While the provision clearly makes an exception to the attorney requirement for a breath specimen, no such exception in the statute is made for a blood specimen.

BLOOD SPECIMEN: CHILD CAN SUBMIT OR REFUSE WITH ATTORNEY ONLY
Clearly, without a similar provision creating an exception to the strict requirement of Section 51 .09(a), the requirements of Section 51 .09(a) must be met. This would mean that before a child could voluntarily submit to a blood specimen, the child and his or her attorney would have to agree to give up the child’s rights.

We can then conclude that a child can submit or refuse to submit to the taking of breath test without an attorney [under the requirements of Texas Family Code Section 52.02(d)] and that a child can submit to a blood specimen only with the acquiescence of an attorney [under the requirements of Section 51.09 (a)].