NO. 119-00








Keasler, J., filed a dissenting opinion, in which Keller, P.J,, Womack, J., and Hervey, J., joined.


I agree that the Court of Appeals' interpretation of 724.012(b)(2) of the Texas Transportation Code contravenes plain language of the statute. But the majority's analysis also contradicts the statute's plain language and leads to absurd results. Under the majority's rationale, in cases where no causation evidence exists other than evidence of intoxication, officers may not form a reasonable belief that the intoxicated driver caused the accident. This is silly. It ignores common knowledge and defies common sense.

Section 724.012(b) states that "[a] peace officer shall require the taking of a specimen of the person's breath or blood if:

(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;

(2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that a person has died or will die as a direct result of the accident; and

(4) the person refuses the officer's request to submit to the taking of a specimen voluntarily." (1)

In looking at subsection (2), the Court of Appeals stated that law enforcement need not possess specific evidence that an intoxicated defendant was at fault in the accident. The officers only need evidence that an accident has occurred involving an intoxicated driver. (2) The majority disagrees, holding that intoxication alone is always insufficient, as a matter of law, to establish that the offense caused the accident. Instead, the majority asserts that the officer must have additional sufficient, articulable facts apart from evidence of intoxication. (3) I disagree with both the Court of Appeals and the majority opinion.

Plain language

When we interpret a statute it is our duty to consider the literal text of the entire statute. (4) We are governed by this "plain language" approach unless the language is ambiguous or the result would lead to absurd consequences that the legislature could not possibly have intended. (5) In that case we may consider extra-textual factors, such as legislative history or the probable consequences of a particular interpretation. (6)

The majority holds that the Court of Appeals' opinion violates the statute's plain language because its reasoning nullifies the requirements of 724.012(b)(2). (7) I agree. According to the Court of Appeals, the officer would only need to reasonably believe that the driver was intoxicated, without any evidence of causation. This would give carte blanche to officers to demand blood samples from intoxicated drivers.

But the majority also holds that the plain language of the statute dictates that the officer's "reasonable belief" that the accident occurred must be based on something more than intoxication. In reaching this conclusion, the majority looks at the construction of the statute. But there is no indication that the statute requires as a matter of law that there be evidence in addition to intoxication to establish causation. Instead, the plain language of this section simply indicates that the officer must reasonably believe the accident was a result of (caused by) the offense (driving while intoxicated).

Absurd results

I believe that there are three categories of cases that fall under 724.012(b)(2). The first category consists of cases in which the officer has sufficient articulable facts apart from the suspect's intoxication to form a reasonable belief that the suspect caused the accident. In these cases blood can be taken without the suspect's permission provided that the remaining sub-sections of 724.012(b) are met. The second category of cases are at the opposite end of the spectrum - cases in which the officer has specific evidence that the defendant did not cause the accident. In these cases, even if the other elements of 724.012(b) were met, the officer would not be permitted to demand a blood sample because he could not form a reasonable belief that the suspect caused the accident due to intoxication or any other reason. Under the Court of Appeals' holding, the officer would be able to take a blood sample without the suspect's permission simply because the accident involved an intoxicated driver. But that holding completely ignores the statute's causation requirement.

The third category contains cases that lie somewhere in the middle - cases in which the officer has no evidence of causation, one way or the other, apart from the evidence of the suspect's intoxication. In these cases, the officer's sole reason for believing that the suspect caused the accident would be because the suspect was intoxicated. I find that in these cases it can be reasonable for the officer to believe that an accident occurred because the suspect was intoxicated and for that reason alone.

Officers should attempt to discern who or what caused the accident. An officer could form a reasonable belief as to causation based on a variety of factors, such as the officer's experience, the position of the vehicles, accident reconstruction findings, or statements from the drivers, emergency personnel, or witnesses. But there will be cases in which the complexity of the accident, the need to tend to fatal injuries, the number of emergency personnel on the scene, the difficulty of investigating, the physical condition of those involved, or conflicting witness statements will prevent an officer from forming a reasonable belief as to causation independent of intoxication within a time frame that he can extract a meaningful blood sample. (8) Indeed, there may be accidents where the cause is never known. In these cases it is reasonable for an officer to determine that the accident was caused by the suspect's intoxication.

But under the majority's rationale, an officer would be stripped of his ability to use reason and common sense in the case in which there is simply no additional information available as to causation. For example, an officer could arrive at the scene of a two-car accident. One driver is dead. He does not smell of alcohol. The other driver is not injured, but smells of alcohol, has slurred speech, and cannot stand up. There are no other witnesses. The cars have apparently collided head-on, spun around, are now in a ditch, and it is unclear who was at fault. In cases like this, I believe an officer could form a reasonable belief, based on his experience and the evidence of intoxication, that the accident occurred as a result of the intoxicated driver. Nothing in the statute prohibits this.

It is ridiculous to say that an officer cannot reasonably believe that the driver who cannot walk, talk, or even stand up, caused the accident. But that is exactly what the majority says. It holds that in cases like this, as a matter of law, the officer is not able to form a reasonable belief that the intoxicated driver caused the accident. The officer would be forbidden from taking the intoxicated driver's blood sample. And consequently, the State would be prevented from obtaining critical evidence against that driver. The majority opinion is unreasonably restrictive and leads to absurd results.

The key phrase is "reasonable belief," and that must be determined on a case-by-case basis. According to the majority, as a matter of law, conclusive evidence of intoxication could never be the basis of an officer's reasonable belief about causation. But it is not the job of an appellate court to decide as a matter of law that certain facts can or cannot ever be reasonable. Trial judges must look at all of the facts and circumstances known to the officer at the time of arrest to determine if the officer had a reasonable belief as to causation.

I respectfully dissent.

DATE DELIVERED: April 11, 2001


1. Tex. Transp. Code Ann. 724.012(b) (Vernon 1999).

2. Badgett, 7 S.W.3d at 649.

3. Ante, at (slip op. at 5-6).

4. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.1991).

5. Id.

6. Id.

7. Ante, at (slip op. at 5-6).

8. See Badgett, 7 S.W.3d at 649.