Untitled Texas Attorney General Opinion

T~~~R-~~OI~NEYGENERAI~ OF TEXAS JOEIN L x3xl.s. *TroILN&y OENEXCAL August 3, 1977 Honorable Wilson E. Speir Opinion No. H-1034 Director, Texas Department of Public Safety Re: Records of breath 5805 N. Lamar Boulevard tests administered to Austin, Texas 78773 minors. Dear Col. Speir: You have asked our opinion whether article 67011-5, V.T.C.S., authorizes the administration of breathalyser tests to minors and, if so, whether the minor's name can be entered on a breathalyser log maintained by the Department of Public Safety. Article 67011-5 declares that "any person" who operates a motor vehicle on-the public highways shall be deemed to have given consenLc to a breath test for purposes of determining the alcoholic content of his blood. Refusal to submit to such test by "a person under arrest" may re- sult in suspension of the person's license to drive. Id. S 2. Results of the test are admissible at "any . . . pz ceeding" arising out of the person's alleged driving while under the influence of intoxicating liquor. -Id. 9 3. We believe it clear that the provisions of article 67011-5 are applicable to minors as well as adults. Section 8.07(a)T2) of the Penal Code now prohibits criminal prosecution of a per- son for driving while intoxicated if the offender is younger than 15 years of age, and permits criminal prosecution of per- sons 15 and 16 vears old onlv if the juvenile court waives jurisdiction and certifies the individual for criminal prose- cution. EX parte Tulles, 541 S.W.2d 167, 170 n. 3 (Tex. Crim. App. 1976). Such behavior constitutes "conduct indicating a need for supervision," and is within the exclusive original jurisdiction of the juvenile court. Family Code 6s 51.03(b) (4); 51.04. See Attorney General Opinion H-1020 (1977) at 2 - 3. Juvenilesay be taken into custody "pursuant to the laws of arrest," see Attorney General Opinion H-487 (1975) at 2, al- though thaetention is legally considered an "arrest" only "for the purpose of determining the validity of taking him into custody or the validity of a search." Family Code § 52.01 (a) (21, (b). Testing procedures such as those authorized in p. 4265 Honorabie Wilson E. Speir - page 2 (H-1034) article 67Oil-5 "plainly constitute searches." Schmerber v. California, 384 U.S. 757, 767 (19661. The validity of any breath test administered to a minor should, therefore, be de- termined under article 67011-5, and we believe the provisions of that article relative to-suspension of licenses and admis- sion of evidence are likewise appiicable to minors. The records of any test administered to a minor must, however, be maintained in conformity with the requirements of sections 51.14 and 51.i6 or the Family Code. Section 51.14(c) requires that law enforcement files and records con- cerning a child should be kept separate from adult records, and maintained "on a local basis only and not sent to a central state or rederal depository." Such records "are not open to public inspection" and are open only to tiersons designated in section 51.14(d), unless the juveniie court certifies an of- fender for prosecution as an aduit. Upon appropriate motion, the juvenile court may order all law enforcement files on ,a minor sent to the court, where the record shall be sealed. Family Code ti 51.16(a). We believe, therefore, that any record which might "fur- nish a basis for the identification of the child," Attorney General Opinion H-529 (1975) at 4, must be maintained sepa- rateiy from adult files, on a local basis only; and should be maintained in a form permitting its severance from the records of other individuais, to permit possible removal and sealing and to prevent disclosure of the individual's identity in pro- ceedings to which he is not a party. SUMMARY Article 67011-5, V.T.C.S., authorizes the administration of breath tests to minors as well as aduits. Records of such a test, when administered to a person under 17 years of age, must be maintained in confor- mance with the requirements of sections 51.14 and 51.16 of the Family Code. ttorney General of Texas p. '4266 Honorable Wilson fi. Speir - page 3 (H-1034) APPROVED: DAVID M. KtiNDALL, First Assistant Opinion Committee klw p. 4267