St. Mary's Law Journal


Under the Texas Constitution, D.W.I. suspects do not have a right to consult with counsel before an intoxilyzer test because the test is not considered a “critical stage” in proceedings. In Forte v. State, the Texas Court of Criminal Appeals adopted the critical stage approach and held D.W.I. suspects do not have a right to counsel under the Texas Constitution until the filing of the complaint. The court reasoned because the statute implies consent to the test, and the suspect has no legal right to refuse the test, counsel’s presence would not serve to protect “any known right or safeguard,” which the critical stage approach requires. However, in Forte, Judge Clinton and Judge Teague dissented on the ground the implied consent statute clearly recognizes the accused’s right to refuse the test. Therefore, article I, section 10 under the Texas Constitution, should extend to the right of counsel when making that choice. Considering the difficult choice the suspect will make, the consequences following that choice, and the nature of the evidence obtained, substantial prejudice to the rights of the accused can occur during the intoxilyzer proceeding. For that reason, under such circumstances, deliberation with counsel can inform the D.W.I. suspect of available options and ensure decisions are intelligently made. However, granting the limited right to counsel cannot unreasonably hamper the efforts of police to remove drunk drivers from the road. If, after the first attempt to contact counsel, the suspect cannot reach the attorney within thirty minutes, the suspect must decide independently. Therefore, granting a limited right to counsel can play a significant role in preserving the D.W.I. suspect’s known rights and safeguards. *Editor's Note While this issue was in the final stage of publication, the Texas Court of Criminal Appeals decided McCambridge v. State, No. 297-87 (Tex. Crim. App. Sept. 13, 1989) (Westlaw, Texas Cases library). Though still subject to withdrawal, the McCambridge case rejected the “flexible standard” adopted in Forte v. State and instead adopted a “bright line rule” which states “a critical stage does not occur until formal charges are brought against a suspect.” As a result, the reader is advised to analyze both cases.


St. Mary's University School of Law