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Who is Erdman, and why should you care?  Erdman is a case decided by the Texas Court of Criminal Appeals nearly two decades ago and has been the law of the land in Texas for that period of time. 

The Erdman case established that police officers who have arrested a Driving While Intoxicated suspect may not provide so called ” extra statutory” information concerning the consequences of  refusal to submit to a breath test.  In plain terms,  The Erdman court explained that police are required by law to inform suspects about the legal consequences of refusal – nothing more and nothing less. 

The rationale behind the decision of the Texas Court of Criminal Appeals decision in Erdman is to ensure that people are not psychologically coerced to provide a breath sample where they would not have done so, but for the extra information.  The Court expressed it’s opinion that if people are given extra information (which may or may not be reliable of accurate) beyond that which is required by law to be given, the extra information about the consequences of refusal may have the effect of psychologically coercing them to submit to the test.

Fast forward almost twenty years.  On November 21, 2012, the day before Thanksgiving, the Texas Court of Criminal Appeals upended the law of its own creation, a mere nineteen years after creating it.  The case is known as Fienen v. State of Texas.

In Fienen the Court let us know that it no longer finds the reasoning of Erdman “persuasive”, and that the Court itself had “failed to properly analyze the issue.”  I guess we will just have to take them at their word that they have now properly analyzed the legal question.  The Court then specifically overruled Erdman and its legal presumption that certain types of extra statutory consequences are per se coercive.  Instead, the Court left a system in place in which extra statutory consequences of refusal will be reviewed on a case by case basis, and the burden of proof will be on the state to show that the decision to submit to a breath test was not coercive.  The category of per se presumptions however, are gone.

As a lawyer, I find it somewhat comical/disheartening that the Court of Criminal Appeals would overrule a proposition of law of its own less than twenty years after creating it; and would do so in such self  critical terms.  This opinion does not exactly instill confidence in the stability of the law. That said, I do not believe the sky is falling.  This case merely strips away the per se presumptions as to certain categories of statement.   As a practitioner, bear in mind that  the law of coercion as a general matter still stands.  In the right case, an Erdman type Motion to Suppress should still be filed.   




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