State v. Sells

The State appeals an order granting ap-pellee’s motion to suppress evidence. Tex. Code Cr.P.Ann. art. 44.01(a)(5) (Supp.1990). The underlying cause is a prosecution for driving while intoxicated, first offense, and the evidence suppressed is the result of appellee’s breath test.

Appellee was arrested on the night of July 30, 1989, and taken to the sheriff’s department. After being advised of his rights as required by Tex.Rev.Civ.Stat. Ann. art. 67017-5, § 2(b) (Supp.1990), ap-pellee was asked if he would take a breath test. According to appellee’s testimony at the suppression hearing, he asked…