T~~~R-~~OI~NEYGENERAI~ 

OF TEXAS 

JOEIN L x3xl.s. 

*TroILN&y OENEXCAL 

August 3, 1977 

Honorable Wilson E. Speir 

Director, Texas Department of 

Public Safety 

5805 N. Lamar Boulevard 

Austin, Texas 78773 

Dear Col. Speir: 

Opinion No. H-1034 

Re: Records of breath 

tests administered to 

minors. 

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 consenL c 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 result 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 person for driving while intoxicated if the offender is younger 

than 15 years of age, and permits criminal prosecution of persons 15 and 16 vears old onlv if the juvenile court waives 

jurisdiction and certifies the individual for criminal prosecution. 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, although 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 determined under article 67011-5, and we believe the provisions 

of that article relative to-suspension of licenses and admission 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 concerning 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 offender 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 "furnish a basis for the identification of the child," Attorney 

General Opinion H-529 (1975) at 4, must be maintained separateiy 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 proceedings 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 conformance 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