
Opinion issued September 16, 2004











In The
Court of Appeals
For The
First District of Texas




NO. 01-02-01263-CR




THE STATE OF TEXAS, Appellant

V.

MEREDITH CAROL WOEHST, Appellee




On Appeal from County Court at Law No. 2
Brazos County, Texas
Trial Court Cause No. 013432-CCL2




DISSENTING  OPINION

          Because I believe appellant did not meet her burden of proof for exclusion of
her refusal to take a breath test, I respectfully dissent.
          Woehst argued that, because she was not provided with the correct statutory
warnings, in violation of section 724.015 of the Transportation Code, her refusal to
provide a breath specimen was involuntary and, therefore, inadmissible under the
self-incriminatory provisions of the federal and state constitutions
 and under Texas’s
exclusionary rule, article 38.23 of the Texas Code of Criminal Procedure.
 When
reviewing a trial court’s ruling on a motion to suppress, we must consider whether the
trial court improperly applied the law to the facts.  Porter v. State, 938 S.W.2d 725,
727 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).  While we give almost total
deference to the trial court’s determination of historical facts, we conduct a de novo
review of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.
App. 2000); see also Guzman v. State, 955 S.W.2d 85, 87, 89 (Tex. Crim. App.
1997); Bachick v. State, 30 S.W.3d 549, 551 (Tex. App.—Fort Worth 2000, pet.
ref’d).  The majority concludes that Woehst’s testimony that the officer’s recitation
of a superseded version of section 724.015 “influenced” her decision to refuse the test
establishes not only factual causation, as the trial court found, but also legal
causation.  I disagree.
          Admissibility of Refusal Under Federal and State Constitutions
          The Supreme Court has held that a DWI suspect’s refusal to take a blood-alcohol test lawfully requested by an officer is not an act coerced by the officer and,
therefore, is not protected by the Fifth Amendment and is admissible in a subsequent
DWI prosecution.  South Dakota v. Neville, 459 U.S. 553, 566, 103 S. Ct. 916, 923
(1983) (upholding use at trial of defendant’s refusal to provide blood sample for DWI
testing where defendant was not warned refusal could be used against him at trial as
required by state statute).  Id. 563-64, 103 S. Ct. at 922 (citations omitted). 
          In Thomas v. State, the Texas Court of Criminal Appeals, likewise, held that
the admission in a DWI prosecution of a defendant’s uncompelled refusal to submit
to a breath test does not violate the state constitutional privilege against self-incrimination.  723 S.W.2d 696, 704-05 (Tex. Crim. App. 1986) (expressly adopting
the reasoning in Neville and finding no constitutional violation where defendant was
warned his driver’s license and driver’s privileges could be suspended if he refused
breath test, but was not warned his refusal could be used at trial); see also Miffleton
v. State, 777 S.W.2d 76, 79-80(Tex. Crim. App. 1989).  Thomas defined physical
compulsion for purposes of self-incrimination in the DWI context as including “such
obvious force as physical torture or extended deprivation of food and water.” 
Thomas, 723 S.W.2d at 704.  It defined mental compulsion as including “the more
subtle force associated with offering a defendant two choices, one of which results
in a penalty, punishment or detriment from which the defendant is entitled to be free.”
Id.  Both types of compulsion, it stated,  “remove the element of voluntariness from
a defendant’s decision to incriminate himself.”  Id. (emphasis in original).
          The court reasoned that the State could have legitimately relieved the defendant
of having to choose between refusing and submitting to the test by compelling him
to provide physical evidence of intoxication; instead, it attempted to influence him
to provide the evidence using the threat of a penalty for refusing; by refusing, the
defendant avoided what might have been compelled, but “accepted those
consequences the State could legitimately apply.”  Thomas, 723 S.W.2d at 705.  The
Court concluded, “Such difficult options do not necessarily create compulsion for a
particular choice.”  Id.  It held that Article 1, section 10 of the Texas constitution was
not violated by the State’s failure to warn the defendant that his refusal could be used
against him at trial where the other statutory warnings were correct and no
compulsion was used to obtain the refusal.  Id.  
          Here, Woehst expressly admitted that she did not feel coerced by the officer to
refuse to provide a specimen and that she understood the form as it was explained to
her.
 Nor is there any evidence that the officer used physical or mental compulsion
as defined in Thomas to obtain her refusal.  I would hold, therefore, that Woehst’s
refusal to take a breath test is admissible under both federal and state anti-self-incrimination provisions.
          Admissibility of Refusal Under Texas’ Exclusionary Rule
          The State also contends that Woehst’s refusal should not have been suppressed
under Texas’ exclusionary statute, article 38.23 of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2004).  It
argues that (1) article 38.23 requires the exclusion only of illegally obtained evidence;
(2) the refusal to give a breath specimen would be illegally obtained only if the
refusal were involuntary; (3) a refusal to give a breath specimen cannot be
involuntary unless it is coerced by the officer; and (4) Woehst’s refusal was not
coerced; therefore, it is admissible. 
          Woehst responds that, just as “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 a refusal,” so a refusal to submit to a blood-alcohol test
must likewise be voluntary, i.e., “based on a correct understanding of the
consequences.”  She contends that the officer’s misstatement of the law caused her
refusal to consent to a breath test to be involuntary by depriving her of a full
understanding of the consequences of her choice. 
          Here, as below, Woehst relies primarily on argument by inverse analogy to 
Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993).  In Erdman, the Court of
Criminal Appeals held that a driver’s consent to a breath test was coerced, and
therefore improperly obtained and properly excluded from the evidence under article
38.23 when, in addition to providing the general statutory warnings contained in the
Transportation Code, the officer incorrectly warned the driver of extra-statutory
consequences of a refusal—namely, that the driver would be jailed and charged with
DWI if he refused consent.  Id. at 891. The Court of Criminal Appeals stated that
consent to a breath test “must not be the result of physical or psychological pressures
brought to bear by law enforcement officials.” Erdman, 861 S.W.2d at 893.  The test
for admissibility of a DWI suspect’s blood test results in a DWI prosecution,
therefore—like the test for admissibility of a refusal under constitutional
standards—is whether the defendant’s consent was coerced by warnings that included
extra-statutory consequences of a refusal. 
          Woehst argues that the record of her testimony at the pre-trial hearing
demonstrates that the officer’s incorrect statement of the law caused her decision to
refuse the test.  The trial court, as fact finder, found Woehst’s testimony to be credible
and suppressed the refusal, deciding that it was “required by logic in Erdman to
exclude the evidence of the warning and of the refusal” and that because the “statute’s
[section 724.015] not followed, then the results should not go in front of the jury.” 
Like the majority, I defer to the trial court’s factual determination that the officer’s
incorrect warning influenced Woehst’s decision to refuse a breath test.  However, I
would conclude that the court incorrectly applied the law to the facts in determining
that Woehst’s refusal should be excluded.  I do not believe that the logic in Erdman
requires exclusion of Woehst’s refusal, nor do I believe that the mere recitation of an
incorrect statutory warning as to a minimum license suspension requires exclusion. 
          Texas’ exclusionary rule provides, “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 in
evidence against the accused on the trial of any criminal case.”  Tex. Code Crim.
Proc. Ann. art. 38.23.  Evidence is “obtained . . . in violation of a provision of law,”
as required by article 38.23, only if there is a causal connection between the illegal
conduct and the acquisition of the evidence.  Gonzales v. State, 67 S.W.3d 910, 912
(Tex. Crim. App. 2002) (citing  Roquemore v. State, 60 S.W.3d 862 (Tex. Crim. App.
2001)); Schafer v. State, 95 S.W.3d 452, 455 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d).  Evidence is not obtained in violation of law if an ordinary person would
not consider the evidence to have been obtained by that illegality.  See State v.
Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 1996).  The defendant, therefore,
must establish a causal connection between the refusal and the officer’s violation of
law.  See Schafer, 95 S.W.3d at 455; Jessup, 935 S.W.2d at 511(causal connection not
established between officer’s failure to give statutory written warnings prior to
defendant’s refusal to take breath test where warnings were given immediately after
refusal); Harrison v. State, 766 S.W.2d 600, 605 (Tex. App.—Fort Worth 1989, pet.
ref’d) (no error in admitting evidence of refusal where no causal connection
established between refusal and fact that civilian had given warnings instead of peace
officer).  The question, therefore, is what constitutes a causal connection such that the
defendant’s refusal must be said to have been obtained by the illegality.
          Although the plain language of section 724.015 requires that a peace officer
give the statutory warnings, the failure to do so does not render a refusal
automatically inadmissible under article 38.23.  Jessup v. State, 935 S.W.2d 508, 511
(Tex. App.—Houston [14th Dist.] 1997, pet. ref’d); see also Bachick, 30 S.W.3d at
552 (not every violation of a Texas law invokes the exclusionary rule).  Specifically,
“[a]rticle 38.23(a) may not be invoked for statutory violations unrelated to the
purpose of the exclusionary rule.” Id.; see Lane v. State, 951 S.W.2d 242, 243 (Tex.
App.—Austin 1997, no pet.).  The purpose of the exclusionary rule is to deter police
conduct that could not have reasonably been believed to be lawful by the officers
committing the conduct.  Bachick, 30 S.W.3d at 552-53; see also Owens v. State, 861
S.W.2d 419, 420 (Tex. App.—Dallas 1993, no pet.).  Therefore, to establish that a
DWI suspect’s refusal to submit to a breath test was caused by an “illegality,” the
defendant must show that the police officer who obtained the refusal could not have
reasonably believed his conduct to be lawful.
          The purpose of section 724.015 in relation to the gathering of evidence for use
in a prosecution for DWI is to ensure that a suspect’s decision to take or refuse a
blood alcohol test is knowing and voluntary.  Lane, 951. S.W.2d at 243; Erdman, 861
S.W.2d at 893 (purpose of statutory warnings is to ensure that defendant’s refusal to
submit specimen is an informed choice).  The statutory warnings “emphasize the
importance of ensuring that the consent is given ‘freely and with a correct
understanding of the actual statutory consequences of refusal.’”  Sandoval v. State,
17 S.W.3d 792, 795 (Tex. App.—Austin 2000, pet. ref’d) (citing Erdman, 861
S.W.2d at 893).  The warnings required by section 724.015 “ensure that a person who
refuses to give a requested specimen does so with a full understanding of the
consequences.”  Nebes v. State, 743 S.W.2d 729, 730 (Tex. App.—Houston [1st
Dist.] 1987, no pet.) (construing predecessor statute).  It follows that the officer could
not have reasonably believed his conduct to be lawful if he obtained Woehst’s refusal
by depriving her of a knowing and voluntary choice between consenting to the test
and refusing.  The question, therefore, is what constitutes a knowing and voluntary
choice for purposes of Texas’ exclusionary statute.
          Since Woehst admitted that her refusal to consent to a breath test was not
coerced as that term is defined in Erdman, i.e., obtained by coercive extra-statutory
warnings, her refusal was not involuntary under Erdman and her inverse Erdman
argument necessarily fails.  However, even if Woehst had not admitted that her
refusal to submit to a breath test was not coerced, there is no evidence that her refusal
to take the test was involuntary as that term has been defined either in Erdman or in
similar contexts, i.e., obtained by physical or mental coercion.  See Thomas, 723
S.W.2d at 704 (coercion of refusal under Texas Constitution); see also Sandoval v.
State, 17 S.W.3d 792, 795 (Tex. App.—Austin 2000, pet ref’d) (“A person’s consent
to a breath test is voluntary only if it is not the result of physical or psychological
pressure.  If the officer misstates the law and includes extra-statutory consequences
of a refusal to submit to the breath test, the consent may be considered to have been
involuntarily given.”) (italics in original; bold added). 
          I disagree with Woehst and the majority that the incorrect statutory warning in
this case was legally sufficient to justify exclusion of her refusal as unknowing and
involuntary.  The statutory warnings given Woehst were substantially correct.  Most
importantly, the officer expressly informed Woehst that her refusal to take the test
would be admissible; that is, he correctly informed her about the consequences of her
refusal for criminal proceedings.  In addition, although the statutory warning
regarding the minimum license suspension period was outdated and incorrectly
warned Woehst about the minimum suspension, it did not misinform her that there
would be no suspension; nor did the officer assure her that her suspension would be
no longer than 90 days—a fact she acknowledged she understood and accepted. 
Moreover, the outdated statute not only understated the minimum period of
suspension for a refusal to submit to a breath test; it understated the minimum period
of suspension for consent to the test as well, maintaining the statutory balance
between penalties, i.e., a substantially longer license suspension for a refusal than for
consent.
          When section 724.015 warnings given were either incomplete, imprecise, or
incorrect, but substantially correct, our sister courts—and this court as well—have
found a DWI defendant’s refusal to be admissible.  See Mody v. State, 2 S.W.3d 652,
655 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (refusal to submit to breath
test admissible where oral and written warnings regarding refusal sufficiently
complied with section 724.015, even though warnings referred to blood alcohol level
of .10 at time of testing, rather than at time of driving); Moore v. State, 981 S.W.2d
701, 706 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (refusal admissible where
defendant was informed license would be suspended if he had blood alcohol level of
0.10 at time of testing, rather than at time of driving); Gonzalez v. State, 967 S.W.2d
457, 459 (Tex. App.—Fort Worth 1998, no pet.) (fact that DWI defendant was
advised only that his refusal could be used against him “in the future” was broad
enough to advise him of the statutory consequences of refusing a breath test.); Nebes,
743 S.W.2d at 731 (proof of statutory written warnings not required as predicate to
admissibility “of a voluntarily taken breath test” under predecessor to section
724.015) (emphasis in original); but see Texas Dept. of Pub. Safety v. Thomas, 985
S.W.2d 567, 570 (Tex. App.—Waco 1998, no pet.) (in appeal of license suspension,
because police did not adequately warn defendant of all actual, direct, and statutory
consequences—specifically, loss of commercial license—substantial statutory right
of defendant was violated; thus trial court properly reversed suspension of driver’s
license).
  In these cases, as here, although the officer deviated from the statutory
warnings, his statement of the warnings was substantially correct, and the officer
made no extra-statutory coercive statements. 
          Moreover, in similar contexts, the Texas courts—including this one—have held
that the DWI defendant failed to prove a causal connection between a violation of
section 724.015 of the Transportation Code and the obtaining of a defendant’s refusal
or consent to a blood test.  See Schafer, 95 S.W.3d at 456-57 (trial court did not err
in concluding no causal connection between appellant’s failure to receive DWI
warnings in writing and his decision to submit to breath test where appellant testified
oral warnings given at time were “confused all together,” he did not understand them,
he did not think he had any choice but to consent, but evidence showed he had blood
alcohol concentration of .185); Rowland, 983 S.W.2d 58, 50 (Tex. App.—Houston
[1st Dist.] 1998, pet. ref’d) (appellant failed to show causal connection between
evidence obtained, i.e., refusal to take breath test, and failure of peace officer to give
timely written warning before refusal where appellant continued to refuse test after
oral warnings were provided and he had read and signed written warnings); Lane, 951
S.W.2d at 243-44 (appellant failed to demonstrate results of breath test were obtained
by violation of section 724.015 where there was no evidence that officer’s failure to
timely hand him printed DIC-24 warning had any impact on decision to take test). 
          Under the foregoing law, when the statutory warnings given a DWI suspect are
substantially correct, the suspect’s refusal to consent to a breath test—like consent
itself—is involuntary only if it is coerced, i.e., that is, only if the officer made extra-statutory coercive statements or otherwise physically or mentally compelled the
refusal; the officer’s coercion of the suspect’s refusal to consent to the test establishes
the causal link between the officer’s unlawful conduct and his obtaining the refusal
by a violation of law that subjects the refusal to exclusion under article 38.23.
          Here, the statutory warning given Woehst correctly informed her that her
license would be suspended for at least 90 days if she refused a breath test, but less
if she consented, and, most importantly, that her refusal might be used against her in
a subsequent DWI prosecution; and her refusal was not coerced. Under these
circumstances, it is to me a misapprehension of the intent of section 724.015 and of
the exclusionary rule to relieve Woehst of the precise risk she knowingly assumed by
refusing a breath test—the admissibility of her refusal.  I can find no legislative intent
to accord greater protection to a DWI defendant’s refusal to consent to a breath test
than Erdman affords to a DWI defendant’s consent to the test.  
          I would hold that Woehst failed as a matter of law to establish a causal
connection between the incorrect statutory warning given her regarding the minimum
period for suspension of her license and her refusal to consent to a breath test;
therefore, her refusal should have been admitted into evidence. Accordingly, I would
reverse and remand.


                                                                        Evelyn V. Keyes
                                                                        Justice
Panel consists of Justices Taft, Keyes, and Bland.
Justice Keyes, dissenting.
Publish.  Tex. R. App. P. 47.4.
