## 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 5805N. 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 tominors and, if so,whether theminor's name can be entered on abreathalyser logmaintained by the Department of Public Safety. Article 67011-5 declares that "anyperson" who operates amotor 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 "aperson under arrest" may result in suspension of theperson's license todrive. 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 tominors aswell as adults. Section 8.07(a)T2) of the Penal Code nowprohibits criminal prosecution of aperson for driving while intoxicated if the offender isyounger than 15years 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 iswithin the exclusive original jurisdiction of the juvenile court. Family Code 6s 51.03(b)(4); 51.04. SeeAttorney General Opinion H-1020 (1977)at 2 - 3. Juvenilesay be taken into custody "pursuant to the laws of arrest," seeAttorney General Opinion H-487 (1975)at 2, although thaetention is legally considered an "arrest" only "for thepurpose 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. 4265Honorabie Wilson E. Speir -page2 (H-1034)

article 67Oil-5 "plainly constitute searches." Schmerber v. California, 384 U.S. 757, 767 (19661. Thevalidity of any breath test administered to aminor should, therefore, be determined under article 67011-5, andwe believe theprovisions of that article relative to-suspension of licenses and admission of evidence are likewise appiicable tominors.
The records of any test administered to aminor must, however, bemaintained 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 "arenot open to public inspection" and are open only to tiersonsdesignated in section 51.14(d), unless the juveniie court certifies an offender forprosecution 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 ti51.16(a).
We believe, therefore, that any record which might "furnish abasis for the identification of the child," Attorney General Opinion H-529 (1975)at 4,must bemaintained separateiy from adult files, on a local basis only; and should be maintained ina formpermitting its severance from the records of other individuais, topermit possible removal and sealing and toprevent disclosure of the individual's identity inproceedings towhich he isnot aparty.
SUMMARY Article 67011-5, V.T.C.S., authorizes the administration of breath tests tominors aswell as aduits. Records of such a test, when administered to aperson under 17 years of age,must bemaintained in conformance with the requirements of sections 51.14 and 51.16 of the Family Code.

ttorney General of Texas

p. '4266Honorable Wilson fi.Speir -page 3 (H-1034)

APPROVED:

DAVID M. KtiNDALL,First Assistant

Opinion Committee klw

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