¶1dissenting.
¶2I respectfully dissent from the majority opinion.
¶3It is clear from the record that the breathalyzer test and the motor skills test conducted in the DWI video tape room are inseparable. In reviewing the statement of facts, when the witnesses testify about “tests” it is difficult to determine whether they are speaking of intoxilyzer tests or motor skills tests. When the trial court found sufficient evidence to grant the appellant’s motion to suppress the results of the intoxilyzer test, on the grounds that appellant’s consent was coerced, the trial court should likewise have found that appellant’s consent to perform the audio and motor skills tests was also coerced. See Fisher v. State, 379 S.W.2d 900 (Tex.Crim.App.1964) and Washington v. State, 582 S.W.2d 122 (Tex.Crim.App.1979).
¶4The record is also clear that appellant initially refused both forms of testing but eventually submitted only because she “felt she had no other choice.” The majority opinion is correct in stating that appellant failed to renew her demands to contact her father/attorney during the test in the DWI video tape room; however, she also testified that after being told by the police that she could not contact her father until they were through with her, she was “waiting for them to tell me when I could.”
¶5*957Because we are concerned for the victims of drunk drivers, and in reducing the fatalities and injuries caused by drivers who are intoxicated, Texas Courts have written bad law. With the fifth amendment to the United States Constitution as a guideline, the drafters of the Texas Constitution were very deliberate and precise in the language they used in an attempt to afford our citizenry greater protection under the Texas Constitution than was afforded under the fifth amendment of the United States Constitution. To that end, the Texas Constitution provides that no one shall be compelled to give evidence against themselves. Tex. Const, art. I, § 10. While the U.S. Constitution prohibits a person from being forced to testify against himself or herself, the Texas Constitution goes a step further and prohibits the State from forcing a person to give evidence against themselves. Very clearly, a higher standard of protection is afforded under the Texas Constitution. Nonetheless, Texas Courts have held that the giving of blood, breath or urine is not “evidentiary” and therefore is not protected by the Texas Constitution. See Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986); and McCambridge v. State, 712 S.W.2d 499 (Tex.Crim.App.1986). We have also held that giving up such bodily fluids is not testimonial. See Miffleton v. State, 777 S.W.2d 76, 81 (Tex.Crim.App.1989). It causes one to wonder, if the results of a intoxilyzer test are not evidentiary or testa-monial, then how can they be used against an accused in a criminal trial? It would seem that if it is not evidentiary or testa-monial, it should not be used against an accused. Yet we continue to provide a farce in DWI prosecution that is unique in Texas jurisprudence.
¶6Except for the prosecution of persons charged with DWI, there is no other crime in Texas for which the State can force the accused to perform the very elements of the offense with which he is charged, record the performance and then replay it for the jury that sits in judgment of his case. A DWI defendant is charged with having “lost the normal use of his mental and physical faculties by reason of the introduction of alcohol ..., into his body.” Incredibly, the State is allowed to audio and videotape the accused performing certain feats of mental and physical dexterity in order to have the accused prove by his own actions that he has indeed lost the normal use of his mental and physical faculties. These are the essential elements of the crime which the State must prove in order to obtain a conviction. Again, there is no other crime in Texas for which the State can record the accused performing the act with which he is charged, and then use that as evidence to prove he committed the crime. In order to justify this unprecedented behavior, Texas courts arrive at what is supposed to be a logical conclusion and hold that the video tape is not “testa-monial” and allow the State to use it as evidence to prove the charges against the accused. Miffleton, 777 S.W.2d at 81.
¶7The growing number of DWI offenses in this State is indeed a serious problem that demands a solution. However, it is my opinion that distorting our caselaw and infringing upon the constitutional rights of our citizens is not a proper or acceptable solution. I recognize that what I say will have little or no affect on our body of caselaw as it is dicta in a dissent; however, the DWI video room is a “windmill” that just invites jousting.
¶8It is my belief that based upon the evidence, any consent on the part of the appellant to perform in the videotape room was coerced, not voluntary, and therefore inadmissible. I would reverse the judgment of the trial court and remand for a new trial.