holding that refusal to submit to breathalyzer test did not result from custodial interrogation
How later courts described this case
- holding that refusal to submit to breathalyzer test did not result from custodial interrogation
- also holding that the refusal to submit to the breathalyzer test did not result from a custodial interrogation for purposes of Tex.Code Crim. Proc. art. 38.22
- officer’s request that a defendant submit to a blood-alcohol test is not an interrogation
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
In my judgment the majority is sorely wrong in its treatment of the first ground for review, that error attends a defining “reasonable doubt” in a jury charge over objection by an accused. To say that this Court “will not condone” giving a jury an enlightening benefit of a fair definition on grounds that the Court has opined “reasonable doubt” does not need amplification or explanation ignores our own experiences here, and will serve to prohibit a conscientious trial judge from exercising discretion in redressing the reality of circumstances arising in a given case indicating a definition is appropriate, e.g., utter confusion engendered during voir dire examination of prospective jurors. The supreme irony comes when the majority unwittingly exposes unwritten rationale for its obdurate edict in explaining that such “error” is harmless “because it would impose a greater burden of proof upon the State to prove the guilt of the appellant.” P. 721. If a criminal trial is, as heralded, “a search for truth,” the majority should at least reveal how a fair explication of the constitutional standard for finding ultimate truth of guilt will put society’s achieving justice in harm’s way.
As to the second ground for review, while refusal to submit to taking a blood or breath sample is not a product of “custodial interrogation” for purposes of Article 38.22,V.A.C.C.P., for reasons stated in Bass v. State, 723 S.W.2d 687 (Tex.Cr.App.1986), in my view, refusal to comply with an official request to submit to such test is a product of compulsion and a “communication” for purposes of Article I, § 10, for reasons stated in my dissenting opinion in Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986).
For those reasons, I dissent.