Opinion
No. 05-04-00685-CR
Opinion Filed July 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-86161-02. Affirmed.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
A jury convicted Michael David Shea of driving while intoxicated, and the trial court assessed punishment at ninety days in jail, probated for twelve months, and a $400 fine. In a single issue, appellant complains the trial court erred in admitting a videotape and breath test results because he was not taken to a magistrate "without unnecessary delay" as required by article 14.06 of the Texas Code of Criminal Procedure. We affirm. We review a trial court's evidentiary ruling for an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005). The test for abuse of discretion is whether the action by the trial court was arbitrary or unreasonable. Id. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id. Article 14.06(a) provides that upon making an arrest, a suspect shall be taken "without unnecessary delay, but not later than 48 hours after the person is arrested," before a magistrate so that the magistrate can expeditiously provide the suspect with Miranda warnings as required under article 15.17. See Tex. Code Crim. Proc. Ann. Art. 14.06(a) (Vernon 2005); see Fletcher v. State, 960 S.W.2d 694, 701 (Tex.App.-Tyler 1997, no pet.). The reasonableness of a delay must be judged on the facts of the case. Green v. State, 773 S.W.2d 816, 820 (Tex.App.-San Antonio 1989, no pet.). The length of detention must be considered along with other matters, such as accessibility of the magistrate, the facilities involved, the unavoidable administrative duties of the officers making the arrest, the intervention of a Sunday or holiday, the physical or mental condition of the person detained, a delay occasioned by the voluntary act of the accused freeing himself of the burden of guilt, and the time spent in further inquiry and investigation to corroborate the statements made by an accused. Niehouse v. State, 761 S.W.2d 491, 494 (Tex.App.-Dallas 1988, no pet.). The burden is on the defendant to show the delay was unreasonable and to show a causal connection between the challenged evidence and the delay. See State v. Vogel, 852 S.W.2d 567, 570 (Tex.App.-Dallas 1992, pet. ref'd). The record shows appellant was arrested at 11:28 p.m. and was taken before a magistrate between 9 and 9:30 the next morning, an approximate ten-hour delay. During this ten hours, the record shows that appellant and the police waited at the roadside for "quite some time" for a wrecker to tow appellant's car. Appellant arrived at the Collin County jail between midnight and 12:30 a.m. According to the arresting officer, appellant provided a breath sample about an hour later. In the meantime, officers filled out paperwork and the DIC forms and spent about twenty minutes in the intoxilyzer room before giving appellant the test. In his brief, appellant asserts the ten-hour delay was "clearly unnecessary," but does not argue any specific facts as to why. In denying his motion to suppress the evidence, the trial judge noted that it was Collin County's practice to provide a magistrate "every morning to anyone who may be arrested at night. I don't believe there was a magistrate out there that night." The judge also noted that evidence "may be lost," particularly in DWI cases, if the State was required to go looking for a magistrate in the middle of the night before taking breath samples consented to by defendants. Having reviewed the record, appellant has failed to meet his burden of showing that ten hours, in this case, was an unnecessary delay. A review of Texas cases that discuss the issue of an acceptable period of detention approve durations from one and one-half hours to sixteen hours. See Niehouse, 761 S.W.2d at 494 n. 4; see also Jenkins v. State, 912 S.W.2d 793, 807 (Tex.Crim.App. 1993) (sixteen hours). In addition, in considering appellant's mental state, he had been arrested because officers believed he was intoxicated. He was at the jail for less than an hour before consenting to the breath test and providing a breath sample. A breath sample is not a confession; regardless, appellant does not argue that he was pressured in any way to give the breath sample. We agree with the State that the delay in this case was simply a function of a "near-midnight arrest and the magistrate's regular morning availability." Moreover, we conclude the delay was not causally connected to the challenged evidence. We resolve the sole issue against appellant. We affirm the trial court's judgment.