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In evaluating which portions of the defendant’s video will be admissible, one should note any invocations of the right to counsel, and be able to distinguish testimonial versus non testimonial acts.  In general, constitutional rights (not to incriminate yourself) do not attach to non testimonial acts (such as performing field sobriety tests), but it does attach to verbal utterances.  All non testimonial acts on a video, therefore, may come in.  But once a defendant has invoked his right to counsel, anything he says on the videotape must be excluded.  Mentions of convictions, arrests, or other extraneous matters may be inadmissible.

The following portions of a DWI defendant’s videotape may be admitted:

  • Visual depictions of field sobriety tests;
  • Verbal field sobriety tests (reciting parts of the alphabet or counting);
  • Audio portions of video when police questioning is the type normally incident to arrest and custody and is not reasonably likely to elicit testimony;
  • Refusal to perform field sobriety tests
  • The video portions after the audio is suppressed
  • A defendant’s invocation of the right to counsel during a refusal to take a breath test;
  • Video portions even if the audio did not record; and
  • Audio portion of field sobriety tests after Miranda is invoked.
The following parts of a DWI defendant’s video can be suppressed:
  • Invocation of the right to counsel;
  • Invocation of the right to terminate the interview
  • Objected to extraneous offenses.

DIC 23 and DIC 24 Warnings

The DIC warning states, “If you give a specimens and analysis shows that you have an alcohol concentration of 0.08 or more, your license, permit or privilege to operate a motor vehicle will be suspended.  The warning statue does not contain the wording at the time of driving because it does not pertain to whether the defendant was driving while intoxicated.  The rule that the DIC 24 warnings be given in writing does not apply to case where a breath test was given.  This rule applies only to breath test refusals.  The requirement that DIC 24 warnings be given is writing is satisfied by making a written copy available to the suspect.  Does the extra information an officer gives a driver about the consequences of passing or falling the test amount to coercing the test?  Texas courts have divided on the issue generally, but the facts surrounding the encounter are critical.

Statements that equal coercion

  • Telling the suspect that if he passed the breath test he would be released, but if he refused he would be charged with DWI.
  • Telling the suspect that if he passed the breath test, he would be released, but if he failed it, he would be arrested while at the scene.


Dallas criminal lawyer Constantine Anagnostis dedicates his practice to people who are facing criminal charges, with a primary emphasis on DWI, Drug Offenses, Expunction & Nondisclosure Agreements, and Occupational Driver’s License Issues. Dallas criminal lawyer Constantine G. Anagnostis understands the law, procedures, and penalties pertaining to criminal law, and will aggressively fight to protect your rights. Dallas criminal lawyer Constantine Anagnostis provides the utmost personal dedication to each and every case, and truly cares about his clients. You may call 817-229-0319 to schedule a free consultation, or submit a sample case form. At the Law Office of Constantine G. Anagnostis, we look forward to helping you.