Can police take a Texas juvenile’s 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 that for an adult.
In the usual child custody situation, the Texas 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 Texas Penal Code provides certain special provision 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.
For our discussions, the term child or children apply to a person between the ages of 10 and 17.
The Texas Alcoholic Beverage Code Section 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 a DWI-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 having the alcohol consumption rising to the level of intoxication.
Authorization for a Child’s Breath or Blood Specimen
The Texas Family Code 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 the child’s system may, take the child to a place to obtain a specimen of the child’s breath or blood as provided by the Texas Transportation Code; and perform intoxilyzer processing and videotaping of the child in an adult processing office of a law enforcement agency as opposed to a juvenile processing office.
This provision does not dispense with the strict requirements of the Texas Family Code that must be present in order to take a statement from a child.
Breath Specimen: Child Can Submit or Refuse Without Attorney
The Texas Transportation Code Section provides that a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer. But the Texas Family Code addresses a child’s consent to a specimen but such request and response must be videotaped. Such videotape 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.
Blood Specimen: Child Can Submit or Refuse With Attorney Only
Before a child can voluntarily submit to a blood specimen, the child and his or her attorney would have to agree to give up the child’s rights.
Mandatory Blood Specimen
In order for a child to be subjected to a mandatory blood draw depends on which statute a law enforcement officer has taken a child into custody, The most likely situation where a mandatory blood draw of a child could be made is where the officer arrests a child for DWI (or its related offenses) and videotapes the request and the refusal by the child to take a breath specimen.
A search warrant for a blood draw of a child is valid if the child is arrested for DWI or its related offenses under Section 49 of the Penal Code and the child has validly refused the taking of a breath (videotaped) or blood test (acquiescence of attorney) as provided by the Family Code.