Is mandatory blood draws for DWI suspects unconstitutional?

[Blake]

Suspected drunken drivers who refuse a breath test in Bexar County are now subject to a mandatory blood draw every day of the year under a dramatic expansion of a “no refusal” policy that had been limited to weekends, officials announced.......

.....
On weekends this year, officers have made full use of mandatory blood draws — blood samples were obtained in 1,989 cases this year, with more than half of them, 1,043, under warrants obtained with the no-refusal policy. The rest were already required by law or obtained with the suspect's consent.

Mandatory blood draws have been criticized by some defense lawyers and civil libertarians. Jamie Balagia, an attorney with a DWI defense practice here who has styled himself the “DWI Dude” in advertisements, said Monday that the policy was a “ridiculous trampling of our Constitution.”

.........

Read more: http://www.mysanantonio.com/news/local_news/article/No-refusal-DWI-policyexpands-to-every-day-2233631.php#ixzz1bnwwN0MJ

[admiralsnackbar]

Can't say I'm as up on vascular law as I used to be.

[Drachen]

It seems pretty dubious.

[cheguevara]

IMO that's torture.

wouldn't it be cheaper to just waterboard those mofos

[Drachen]

IMO that's torture.

wouldn't it be cheaper to just waterboard those mofos

but that's NOT torture.

[RandomGuy]

By the time you are asked to do a breath test, the police have "probable cause". They get to that probable cause because you have answered questions ("yes, I was drinking"), and likely participated in a field sobriety test, both actions are essentially waiving your 5th amendment rights.

Yes, it is constitutional.

When you are pulled over, remember, it is a police investigation that you are not required to cooperate with, beyond giving them your license and registration.

"Have you had anything to drink?"
"I am not going to answer that question." (5th amendment)

"Can you walk this line?"
"No thank you." (5th amendment)

If they want to give you a ticket for speeding or no turn signal or such, sign that promise to appear, but beyond that I am pretty sure the 5th amendment covers most things they will ask of you.

I'm sure our resident lawyers can probably vouch for this. Hell, please correct me if my understanding is incorrect.

[vy65]

lol torture

[Winehole23]

Essentially, this sort of thing amounts to state compulsion of self-incrimination. As ever, it's a perfectly valid LE tactic until the courts say no.

[vy65]

Essentially, this sort of thing amounts to state compulsion of self-incrimination. As ever, it's a perfectly valid LE tactic until the courts say no.

The right against self-incrimination deals with verbal statements and not non-verbal tests.

http://supreme.justia.com/us/384/757/

[Winehole23]

thx. the courts may not have had their last word on this.

[RandomGuy]

The right against self-incrimination deals with verbal statements and not non-verbal tests.

http://supreme.justia.com/us/384/757/


police officer smelled liquor on petitioner's breath and noticed other symptoms of drunkenness at the accident scene and at the hospital

Smelling alchohol doens't rise to "probable cause", but once they "notice other symptoms of drunkenness" that gets it over the bar and allows for the forced blood draw.

Correct?

[coyotes_geek]

When you are pulled over, remember, it is a police investigation that you are not required to cooperate with, beyond giving them your license and registration.

"Have you had anything to drink?"
"I am not going to answer that question." (5th amendment)

"Can you walk this line?"
"No thank you." (5th amendment)

Under no refusal you are required to cooperate. You say "I'm not going to answer that question" and "no thank you" and the cops say "Tough shit, here's a court order allowing us to take your blood without your consent."

[vy65]

Smelling alchohol doens't rise to "probable cause", but once they "notice other symptoms of drunkenness" that gets it over the bar and allows for the forced blood draw.

Correct?

I found this: The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992)

I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol. Plus, you got to figure in the fact that the cop pulled them over in the first place (i.e., speeding, swerving, etc...) which, when added to the smell, more than justifies the test.

[CosmicCowboy]

Under no refusal you are required to cooperate. You say "I'm not going to answer that question" and "no thank you" and the cops say "Tough shit, here's a court order allowing us to take your blood without your consent."

Yeah, but the issue is that the court orders up to this point have been determined on a case by case basis. When they did the "no refusal" holidays in the past they had a JP available 24 hours a day to make the call. Are they saying they are going to draw blood now without a court order?

[Drachen]

I found this: The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992)

I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol. Plus, you got to figure in the fact that the cop pulled them over in the first place (i.e., speeding, swerving, etc...) which, when added to the smell, more than justifies the test.

But officer, I sped up to get away from that car that was throwing open beers into my driver's side window.

[RandomGuy]

Under no refusal you are required to cooperate. You say "I'm not going to answer that question" and "no thank you" and the cops say "Tough shit, here's a court order allowing us to take your blood without your consent."

You can't get a court order for any search with the sole basis for that search being that someone refuses to cooperate.

That is very obviously unconstitutional.

[RandomGuy]

I found this: The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992)

I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol. Plus, you got to figure in the fact that the cop pulled them over in the first place (i.e., speeding, swerving, etc...) which, when added to the smell, more than justifies the test.

That's just it though.

The law allows for *some* blood alchohol content to be legal.

Simply smelling alchohol cannot prove that someone is 1) impaired, and/or 2) over the limit.

(edit)
If they were obviously swerving all over the road, that might do it if it was really aggregious (sp?)

[vy65]

I don't think you're getting it. There's never a situation where a cop *just* smells alcohol. It's not like a cop can smell inside a car and use that smell alone as a reason to pull over a drunk driver. Drunk drivers get pulled over because they've broken a traffic law so your point is irrelevant.

In a hypothetical situation where a cop pulled over someone just because they smelled like alcohol, I'd still say that the smell would show the cop had p-c.

[baseline bum]

I don't think you're getting it. There's never a situation where a cop *just* smells alcohol. It's not like a cop can smell inside a car and use that smell alone as a reason to pull over a drunk driver. Drunk drivers get pulled over because they've broken a traffic law so your point is irrelevant.

In a hypothetical situation where a cop pulled over someone just because they smelled like alcohol, I'd still say that the smell would show the cop had p-c.

A DUI checkpoint would be a place a cop could interview a driver without any probable cause.

[JoeChalupa]

Don't cops carry those hand held breathalyzers? I don't have an issue with it really.

[coyotes_geek]

Yeah, but the issue is that the court orders up to this point have been determined on a case by case basis. When they did the "no refusal" holidays in the past they had a JP available 24 hours a day to make the call. Are they saying they are going to draw blood now without a court order?

Haven't seen anything about that mentioned, but I'd assume they'd still need to have a JP on call.


You can't get a court order for any search with the sole basis for that search being that someone refuses to cooperate.

Sure looks to me like no-refusal allows this very thing.


That is very obviously unconstitutional.

I would hope so, but we'll have to wait and see.

[Drachen]

Don't cops carry those hand held breathalyzers? I don't have an issue with it really.

You can refuse the breathalyzer test.

[CosmicCowboy]

Haven't seen anything about that mentioned, but I'd assume they'd still need to have a JP on call.

Well, When you look at how they allocated the money from the grant there was none allocated for JP overtime. It was all for the cops, the DA's office, and the mad mothers.


The bulk of the grant will go to the SAPD and the Sheriff's Office, which received $556,482 and $524,837 respectively, for their DWI selective traffic enforcement programs.
The money to pay for blood testing services handled by the Bexar County medical examiner's office will come from $180,000 received by the district attorney's office.
The MADD affiliate will get $150,000 to run its Take the Wheel educational program.
Both the SAPD and the Sheriff's Office will use the money to pay patrol officers overtime to look for suspects.
The sheriff's portion of the money will also target speeding, which typically goes hand in hand with drunken driving, “and that's double trouble,” Sheriff Amadeo Ortiz said.

[RandomGuy]

I don't think you're getting it. There's never a situation where a cop *just* smells alcohol. It's not like a cop can smell inside a car and use that smell alone as a reason to pull over a drunk driver. Drunk drivers get pulled over because they've broken a traffic law so your point is irrelevant.

In a hypothetical situation where a cop pulled over someone just because they smelled like alcohol, I'd still say that the smell would show the cop had p-c.

I get it alright.

That is a bit like saying "well, you stole a twinkie, so that is reasonable cause to assume you vandalized your neighbor's house".

Is evidence of one crime, i.e. running a stop sign, de facto evidence of another crime, i.e. drunk driving?

[RandomGuy]

I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol. Plus, you got to figure in the fact that the cop pulled them over in the first place (i.e., speeding, swerving, etc...) which, when added to the smell, more than justifies the test.

Defense lawyer:

"So officer Smith, you smelled alcohol, is this correct?"

Officer Smith:

"Yes."

Defense lawyer:

"Can you, by smell alone, accurately determine blood alcohol content?"

Officer Smith:

"Um, no."


I am a reasonably prudent person, and I can imagine this exchange.

Is that what you are aruging, that it is possible by smell alone to infer blood alcohol content?

[vy65]

I get it alright.

That is a bit like saying "well, you stole a twinkie, so that is reasonable cause to assume you vandalized your neighbor's house".

Is evidence of one crime, i.e. running a stop sign, de facto evidence of another crime, i.e. drunk driving?

No.

In the real world, there are several attendant facts that demonstrate drunkeness. That's why it's asinine to hypothesize that a cop is only going on the smell of alcohol.

And while evidence of one crime isn't evidence of another - discovering evidence of another crime justifies investigation into other crimes where evidence of the second crime exists. If I get pulled over and a cop smells pot, I can't tell the cop to fuck off because he only pulled me over for speeding.

[vy65]

Defense lawyer:

"So officer Smith, you smelled alcohol, is this correct?"

Officer Smith:

"Yes."

Defense lawyer:

"Can you, by smell alone, accurately determine blood alcohol content?"

Officer Smith:

"Um, no."


I am a reasonably prudent person, and I can imagine this exchange.

Is that what you are aruging, that it is possible by smell alone to infer blood alcohol content?

The smell of alcohol gives probable cause to believe drunkeness (i.e., a crime). The blood test confirms BAC. No one is claiming a cop can determine someones BAC from smell alone. Where are you getting this stuff?

[The_Worlds_finest]

Fuck the drunks. Get a taxi you irresponsible shit bag.

[RandomGuy]

The smell of alcohol gives probable cause to believe drunkeness (i.e., a crime). The blood test confirms BAC. No one is claiming a cop can determine someones BAC from smell alone. Where are you getting this stuff?

"The smell of alcohol [alone] gives probable cause"

Link?

Case?

[mavs>spurs]

i guess they'd just have to issue a warrant for assault on a police officer before they draw my blood

[RandomGuy]

Where are you getting this stuff?

I am simply trying to imagine how this would play out in a court, based on what I know.

You aren't being very convincing, for a lawyer. :p:

[vy65]

I found this: The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992)

Why don't you think that the smell of alcohol (alone) is sufficient to warrant a prudent person to believe the driver has committed the crime of DWI?

[vy65]

And here's a case: State v. Greyeyes 734 P.2d 789

[RandomGuy]

Why don't you think that the smell of alcohol (alone) is sufficient to warrant a prudent person to believe the driver has committed the crime of DWI?

Because the law allows for some alcohol content.

It is quite clear cause for further investigation, granted, but "probable" is not a bar that I would think it clears.

If you can find some case law that speaks to it, I would be happy to accede the point of law. I am still not sure I would agree with it, but I am not trying to be unreasonable.

Either way, this appears primed for a SCOTUS case within a few years.

[RandomGuy]

And here's a case: State v. Greyeyes 734 P.2d 789

http://scholar.google.com/scholar_case?case=18438268003670341181&hl=en&as_sdt=2&as_vis=1&oi=scholarr


Defendant, upon being asked whether he had been drinking, admitted that he had been drinking "all night." The officer then asked defendant to perform several field sobriety tests, and thereafter, Galvan concluded that defendant was intoxicated and placed him under arrest for driving while intoxicated

Did you actually read the whole case?

Once again, you have "smelled alcohol" + other questioning and field sobreity tests.

That is not the smell of alcohol alone.

(edit)
To be clear:

I still don't think that the smell of alcohol alone is sufficient to allow for a breathalizer in the abscence of cooroberating evidence.

[vy65]

Because the law allows for some alcohol content.

That's not what we're talking about. The smell of alcohol isn't determinative of BAC.

The question is only: is it reasonable to believe that a driver is drunk based on the smell of alcohol. Apparently, you believe that it's unreasonable. Good thing you're not a cop.


It is quite clear cause for further investigation, granted, but "probable" is not a bar that I would think it clears.

I gave you a definition of "probable cause." Apparently, no reasonable person could believe that someone driven drunk based solely on the smell of alcohol.



If you can find some case law that speaks to it, I would be happy to accede the point of law. I am still not sure I would agree with it, but I am not trying to be unreasonable.

Either way, this appears primed for a SCOTUS case within a few years.

Now that I think about it, I think you're getting something mixed up. All a cop needs for probable cause is a reasonable belief that a crime has been committed. The smell of alcohol provides that proof. With that probable cause, a cop can then amass more evidence (field sobriety test, blood test, etc...). All that evidence is then submitted to a jury who must find beyond a reasonable doubt that the driver was drunk.

It seems like you're arguing that no jury would convict based on smell alone. That's not the issue. The issue is whether the cop can investigate and collect more evidence based on smell alone.

[vy65]

http://scholar.google.com/scholar_case?case=18438268003670341181&hl=en&as_sdt=2&as_vis=1&oi=scholarr



Did you actually read the whole case?

Once again, you have "smelled alcohol" + other questioning and field sobreity tests.

That is not the smell of alcohol alone.

(edit)
To be clear:

I still don't think that the smell of alcohol alone is sufficient to allow for a breathalizer in the abscence of cooroberating evidence.


Now that I think about it, I think you're getting something mixed up. All a cop needs for probable cause is a reasonable belief that a crime has been committed. The smell of alcohol provides that proof. With that probable cause, a cop can then amass more evidence (field sobriety test, blood test, etc...). All that evidence is then submitted to a jury who must find beyond a reasonable doubt that the driver was drunk.

It seems like you're arguing that no jury would convict based on smell alone. That's not the issue. The issue is whether the cop can investigate and collect more evidence based on smell alone.

Yah, you're definitely getting this mixed up.

[vy65]

The smell of alcohol alone gives a cop probable cause. With that, a cop can collect more evidence.

[RandomGuy]

The smell of alcohol alone gives a cop probable cause. With that, a cop can collect more evidence.

You would be a helluva lot more credible in that assertion if you could back it up with case law, counselor.

The collection of blood is, essentially, a search of someones' person. I think we can both agree on that.

We can also agree that it is reasonable for the police to look for more evidence, and were I a cop, contrary to your snippy ad hominem, I would attempt to get more evidence.

The question of whether the smell of alcohol alone constitutes "probable cause" for the obtaining of a search warrant, is not something I buy.

You can get as pissy as you want, but I am not asking for an unreasonable level of proof for your assertion. If you can't provide it, then admit it.

[mavs>spurs]

I've never heard of being able to decline a sobriety test/breathalyzer but I would make my own rules when declining a blood test, that's fucking bullshit and a huge violation of my rights over my own body.

[mavs>spurs]

first TSA sticking their hands down your pants, now mandatory blood tests, what's next mandatory butthole fingering? :rolleyes

[CosmicCowboy]

(From a DWI attorneys website)

New Texas Blood Draw Law
A frequent question of late always revolves around what the law and policy is surrounding the right of law enforcement officers to draw blood. The newly created Texas Senate Bill 261 and Texas House Bill 747 significantly expands the authority of police to obtain a sample of blood for DWI suspects. The police now have the authority to take blood samples from DWI suspects WITHOUT a search warrant under the following conditions:
• Authorizes a blood draw if there has been an accident that required someone other than the DWI suspect to be taken to a hospital or medical clinic;

• Authorizes blood draws for people accused of DWI with Child Passenger;

• Authorizes blood draws for people who are suspected of having two prior DWI convictions or a prior felony DWI conviction
The distinguishing characteristic of the new law is that it gives the police authority to take the samples without your consent or the approval of a neutral, detached judge through the search warrant process. Before, the law only provided the taking of blood without a warrant in Intoxication Manslaughter cases (fatalities) and Intoxication Assault cases (serious bodily injury). That law was written to ensure that a blood draw could be done without delay in case there was no judge or magistrate available to sign a warrant before the evidence might be lost.
Blood Search Warrants
If you fail to voluntarily submit to a blood or breath test, in some cases a police officer can get a search warrant to forcibly take your blood. The 4th Amendment to the United States Constitution prohibits unreasonable searches and seizures. Extracting a sample of your blood certainly qualifies as a search and seizure, and therefore the withdrawal of your blood for purposes of DWI testing must be reasonable.
The 4th amendment requires that search and seizure warrants be approved by a neutral and impartial magistrate and always supported by probable cause. They must also be limited in scope, specifically stating the person or place to be searched and the items to be seized. The warrant must establish that the police have probable cause to believe a person has committed the offense of DWI. If any of the above requirements are not met, an attorney should file a motion to suppress the blood test results as violation of the 4th amendment right of the accused to be free of unreasonable searches and seizures.

[RandomGuy]

No.

In the real world, there are several attendant facts that demonstrate drunkeness. That's why it's asinine to hypothesize that a cop is only going on the smell of alcohol.

And while evidence of one crime isn't evidence of another - discovering evidence of another crime justifies investigation into other crimes where evidence of the second crime exists. If I get pulled over and a cop smells pot, I can't tell the cop to fuck off because he only pulled me over for speeding.

The difference being that 100% of pot possesion is illegal.

More failed analogies.

[RandomGuy]

(From a DWI attorneys website)

New Texas Blood Draw Law
A frequent question of late always revolves around what the law and policy is surrounding the right of law enforcement officers to draw blood. The newly created Texas Senate Bill 261 and Texas House Bill 747 significantly expands the authority of police to obtain a sample of blood for DWI suspects. The police now have the authority to take blood samples from DWI suspects WITHOUT a search warrant under the following conditions:
• Authorizes a blood draw if there has been an accident that required someone other than the DWI suspect to be taken to a hospital or medical clinic;

• Authorizes blood draws for people accused of DWI with Child Passenger;

• Authorizes blood draws for people who are suspected of having two prior DWI convictions or a prior felony DWI conviction
The distinguishing characteristic of the new law is that it gives the police authority to take the samples without your consent or the approval of a neutral, detached judge through the search warrant process. Before, the law only provided the taking of blood without a warrant in Intoxication Manslaughter cases (fatalities) and Intoxication Assault cases (serious bodily injury). That law was written to ensure that a blood draw could be done without delay in case there was no judge or magistrate available to sign a warrant before the evidence might be lost.
Blood Search Warrants
If you fail to voluntarily submit to a blood or breath test, in some cases a police officer can get a search warrant to forcibly take your blood. The 4th Amendment to the United States Constitution prohibits unreasonable searches and seizures. Extracting a sample of your blood certainly qualifies as a search and seizure, and therefore the withdrawal of your blood for purposes of DWI testing must be reasonable.
The 4th amendment requires that search and seizure warrants be approved by a neutral and impartial magistrate and always supported by probable cause. They must also be limited in scope, specifically stating the person or place to be searched and the items to be seized. The warrant must establish that the police have probable cause to believe a person has committed the offense of DWI. If any of the above requirements are not met, an attorney should file a motion to suppress the blood test results as violation of the 4th amendment right of the accused to be free of unreasonable searches and seizures.

A bit closer, thank you.

I would note that State legislatures can and do pass laws all the time that are ultimately found to be unconstitutional. This seems to be skirting that boundary.

[CosmicCowboy]

Simple fact is that legally cops can't draw blood over your objection unless:

1) Someone is injured in the accident and transported to the hospital.

2) A child is in the car

3) Defendant has at least two prior DWI's

4) He gets a court order for a search warrant for your blood.

[CosmicCowboy]

A bit closer, thank you.

I would note that State legislatures can and do pass laws all the time that are ultimately found to be unconstitutional. This seems to be skirting that boundary.

True, but after two pages vy65 still probably won't admit that a cop can't draw blood just because he smells alcohol on your breath.

[Drachen]

I've never heard of being able to decline a sobriety test/breathalyzer but I would make my own rules when declining a blood test, that's fucking bullshit and a huge violation of my rights over my own body.

Yep, you can just say no (they cant shove the breathalyzer into your mouth or push you to walk a line). They can threaten to take you to the municipal jail while they get a judge to issue a warrant to take your blood (and can follow through with that threat).

At least this is how it worked when I got a DWI when I was 20 and 21 (the second being dropped, the judge actually laughed at the cop).

[vy65]

You would be a helluva lot more credible in that assertion if you could back it up with case law, counselor.

The collection of blood is, essentially, a search of someones' person. I think we can both agree on that.

We can also agree that it is reasonable for the police to look for more evidence, and were I a cop, contrary to your snippy ad hominem, I would attempt to get more evidence.

The question of whether the smell of alcohol alone constitutes "probable cause" for the obtaining of a search warrant, is not something I buy.

You can get as pissy as you want, but I am not asking for an unreasonable level of proof for your assertion. If you can't provide it, then admit it.

lol pissy

(a) Reasonable, articulable suspicion to conduct the DUI investigation. Before the officer asked Blankenship to exit the vehicle so as to conduct a DUI investigation (including field sobriety tests), the officer had smelled a strong odor of alcohol on Blankenship's breath and had observed Blankenship's watery, bloodshot eyes. "The alcoholic smell provided the officer reasonable grounds to conduct a second-tier investigatory detention." Whitmore v. State.[fn10] See Peterson v. State[fn11] (alcoholic smell alone gave police "sufficiently reasonable and articulable suspicion to administer field sobriety . . . tests"); McClain v. State[fn12] (same).

BLANKENSHIP v. STATE, 301 Ga. App. 602 (2009) 688 S.E.2d 395

The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App. 1995)

HAM v. STATE, 810 N.E.2d 1150 (Ind.App. 2004)

The fact that Dalton smelled strongly of alcohol, alone, provided sufficient probable cause to at least offer Dalton a chemical test. See State v. Johnson, 503 N.E.2d 431, 432 (Ind.Ct.App. 1987), trans. denied. Based on these facts, we find there was sufficient probable cause for Hainje to offer Dalton a test to determine whether he was intoxicated.

DALTON v. STATE, 773 N.E.2d 332 (Ind.App. 2002)

[fn8] The defendant argues that our conclusion that probable cause for arrest existed in Commonwealth v. Blais, 428 Mass. 294, 296 (1998), is inapposite for two reasons: the defendant in Blais was observed driving his vehicle prior to the officer's detection of his intoxicated condition, unlike the defendant here, who was parked; and the officer in Blais detected a "strong" odor of alcohol on the defendant's breath, whereas here the trooper testified to smelling only "an odor" of alcoholic beverage on the defendant's breath. As to the first point, we note, supra, that "operating" in G.L.c. 90, § 24, is not limited to driving. As to the defendant's second point, we do not consider this a meaningful factual distinction.

COMMONWEALTH v. ECKERT, 431 Mass. 591 (2000)

[vy65]

The difference being that 100% of pot possesion is illegal.

More failed analogies.

You're not getting it. Reread what I wrote.

[RandomGuy]

It seems like you're arguing that no jury would convict based on smell alone. That's not the issue.


Yah, you're definitely getting this mixed up.



You can't get a court order for any search with the sole basis for that search being that someone refuses to cooperate.

That is very obviously unconstitutional.


Smelling alchohol doens't rise to "probable cause", but once they "notice other symptoms of drunkenness" that gets it over the bar and allows for the forced blood draw.

Correct?


You can't get a court order for any search with the sole basis for that search being that someone refuses to cooperate.

That is very obviously unconstitutional.

I think I have been very clear, as I have stated what I am arguing several times over.

The smell of alcohol = definite cause for further investigation

The smell of alcohol doe not equal sole cause for a search (blood draw).

I will accede it crosses a "possible" threshold, but since some alcohol is legally allowed, it does not cross a "probable" threshold to me.

Again, if there is some specific case law I am unaware of, then I will readily accede this point.

CC's bit from the DWI lawyers website seems to confirm my position, and if anyone would be considered experts, it would be the people who make a practice from defending these cases.

[mavs>spurs]

Yep, you can just say no (they cant shove the breathalyzer into your mouth or push you to walk a line). They can threaten to take you to the municipal jail while they get a judge to issue a warrant to take your blood (and can follow through with that threat).

At least this is how it worked when I got a DWI when I was 20 and 21 (the second being dropped, the judge actually laughed at the cop).

that could buy you time to sober up back below the legal limit imo. how long did it take before the judge issued the warrant? do they stay up all night for shit like that?

[Drachen]

Simple fact is that legally cops can't draw blood over your objection unless:

1) Someone is injured in the accident and transported to the hospital.

2) A child is in the car

3) Defendant has at least two prior DWI's

4) He gets a court order for a search warrant for your blood.

But 1, 2, and 3 are arbitrary boundries which I would think are all unconstitutional.

[RandomGuy]

lol pissy

(a) Reasonable, articulable suspicion to conduct the DUI investigation. Before the officer asked Blankenship to exit the vehicle so as to conduct a DUI investigation (including field sobriety tests), the officer had smelled a strong odor of alcohol on Blankenship's breath and had observed Blankenship's watery, bloodshot eyes. "The alcoholic smell provided the officer reasonable grounds to conduct a second-tier investigatory detention." Whitmore v. State.[fn10] See Peterson v. State[fn11] (alcoholic smell alone gave police "sufficiently reasonable and articulable suspicion to administer field sobriety . . . tests"); McClain v. State[fn12] (same).

BLANKENSHIP v. STATE, 301 Ga. App. 602 (2009) 688 S.E.2d 395

The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App. 1995)

HAM v. STATE, 810 N.E.2d 1150 (Ind.App. 2004)

The fact that Dalton smelled strongly of alcohol, alone, provided sufficient probable cause to at least offer Dalton a chemical test. See State v. Johnson, 503 N.E.2d 431, 432 (Ind.Ct.App. 1987), trans. denied. Based on these facts, we find there was sufficient probable cause for Hainje to offer Dalton a test to determine whether he was intoxicated.

DALTON v. STATE, 773 N.E.2d 332 (Ind.App. 2002)

[fn8] The defendant argues that our conclusion that probable cause for arrest existed in Commonwealth v. Blais, 428 Mass. 294, 296 (1998), is inapposite for two reasons: the defendant in Blais was observed driving his vehicle prior to the officer's detection of his intoxicated condition, unlike the defendant here, who was parked; and the officer in Blais detected a "strong" odor of alcohol on the defendant's breath, whereas here the trooper testified to smelling only "an odor" of alcoholic beverage on the defendant's breath. As to the first point, we note, supra, that "operating" in G.L.c. 90, § 24, is not limited to driving. As to the defendant's second point, we do not consider this a meaningful factual distinction.

COMMONWEALTH v. ECKERT, 431 Mass. 591 (2000)

Still not there.


"to at least offer" a test.


Nothing there speaks to any compulsion to submit to such a test, simply from the smell.

It does say that officers (rightly) did more tests, though.

The last one wasn't even relevant to such testing but seems to have had something to do with whether you can be accused of DUI if in a parked car.

Your inability to find something that directly applies is beginnig to make my case for me. I hope you do better if you ever get in front of a real judge.

[vy65]

I think I have been very clear, as I have stated what I am arguing several times over.

The smell of alcohol = definite cause for further investigation

The smell of alcohol doe not equal sole cause for a search (blood draw).

I will accede it crosses a "possible" threshold, but since some alcohol is legally allowed, it does not cross a "probable" threshold to me.

Again, if there is some specific case law I am unaware of, then I will readily accede this point.

CC's bit from the DWI lawyers website seems to confirm my position, and if anyone would be considered experts, it would be the people who make a practice from defending these cases.

What's the difference between "probable cause" and "definite cause for further investigation?"

[Drachen]

that could buy you time to sober up back below the legal limit imo. how long did it take before the judge issued the warrant? do they stay up all night for shit like that?

Your first point is one of the reasons why all of your shady friends (as well as DWI lawyers on TV) tell you to refuse the tests. It buys you time. The judge came in at 6 am (if I remember correctly). I know you can still refuse the tests now, but from what I see typed here it seems that they have a judge on staff 24 hours over the weekend. (my infractions were both in 2000)

[RandomGuy]

What's the difference between "probable cause" and "definite cause for further investigation?"

Probable cause gets you a warrant, cause for further investigation does not.

Am I wrong?

[CosmicCowboy]

that could buy you time to sober up back below the legal limit imo. how long did it take before the judge issued the warrant? do they stay up all night for shit like that?

That's what I've been trying to point out to you guys. When they had the "no refusal" weekends in the past in Bexar County they made special arrangements and had a judge available all night to issue warrants on a case by case basis.

It sounds from the press release that they are going to try to force them now without a warrant.

I don't think that will fly constitutionally.

[vy65]

Nothing there speaks to any compulsion to submit to such a test, simply from the smell.

It does say that officers (rightly) did more tests, though.

The last one wasn't even relevant to such testing but had to do with whether you can be accused of DUI if in a parked car.

Your inability to find something that directly applies is beginnig to make my case for me. I hope you do better if you ever get in front of a real judge.

lol you're hopeless. You wanted a case that said smell alone would justify obtaining a warrant and conducting more searches. I gave you 4 cases that held that smell alone justified more searches (in the form of tests).

The first case is just a parenthetical quoting another case which I was too lazy to go out and find.

The second two directly contradict what you're trying to argue.

As for the last one, why's the fact the car was parked significant?

[Drachen]

Still not there.




Nothing there speaks to any compulsion to submit to such a test, simply from the smell.

It does say that officers (rightly) did more tests, though.

The last one wasn't even relevant to such testing but seems to have had something to do with whether you can be accused of DUI if in a parked car.

Your inability to find something that directly applies is beginnig to make my case for me. I hope you do better if you ever get in front of a real judge.


What's the difference between "probable cause" and "definite cause for further investigation?"

VY, it seems that the cases that you posted are more akin to a couple of detectives who think that crack is being sold out of a house, going up to that house, knocking on the door, striking up a conversation then asking if they can come in and look around.

Drawing blood is more akin to them going with a group of cops, kicking down the door, and beginning to tear the place up (warrant in hand of course).

[vy65]

Probable cause gets you a warrant, cause for further investigation does not.

Am I wrong?

Yes. Probable Cause allows a cop to investigate further. Remember this?


Now that I think about it, I think you're getting something mixed up. All a cop needs for probable cause is a reasonable belief that a crime has been committed. The smell of alcohol provides that proof. With that probable cause, a cop can then amass more evidence (field sobriety test, blood test, etc...). All that evidence is then submitted to a jury who must find beyond a reasonable doubt that the driver was drunk.

It seems like you're arguing that no jury would convict based on smell alone. That's not the issue. The issue is whether the cop can investigate and collect more evidence based on smell alone.

[RandomGuy]

lol you're hopeless. You wanted a case that said smell alone would justify obtaining a warrant and conducting more searches. I gave you 4 cases that held that smell alone justified more searches (in the form of tests).

The first case is just a parenthetical quoting another case which I was too lazy to go out and find.

The second two directly contradict what you're trying to argue.

As for the last one, why's the fact the car was parked significant?

No, actually they don't.

You do understand the difference between the words "offer" and "compel"?

[vy65]

No, actually they don't.

You do understand the difference between the words "offer" and "compel"?

lol shifting goalposts

[mavs>spurs]

That's what I've been trying to point out to you guys. When they had the "no refusal" weekends in the past in Bexar County they made special arrangements and had a judge available all night to issue warrants on a case by case basis.

It sounds from the press release that they are going to try to force them now without a warrant.

I don't think that will fly constitutionally.

Regardless of the law, if a motherfucker tries to remove MY bodily fluids from my body without my consent, he'd better be ready to leak some of his own because that's total bullshit.

How exactly COULD that ever fly constitutionally? The day this goes into effect is the day the precedent is set that they can just do whatever the fuck they want.

[vy65]

"The smell of alcohol [alone] gives probable cause"

Link?

Case?

lol

[RandomGuy]

Yes. Probable Cause allows a cop to investigate further. Remember this?

"investigate further" does not mean "compel a search covered by the 4th amendment", does it?

It can mean that, but you have so far failed to demonstrate conclusively that it does [edit--in all cases. just to be clear]

[RandomGuy]

lol

lol lawyer who can't support his theory

[vy65]

"investigate further" does not mean "compel a search covered by the 4th amendment", does it?

It can mean that, but you have so far failed to demonstrate conclusively that it does.

How do you "further investigate" a DWI if not by administering tests that criminal defendant's object too on fourth amendment grounds?

[RandomGuy]

Regardless of the law, if a motherfucker tries to remove MY bodily fluids from my body without my consent, he'd better be ready to leak some of his own because that's total bullshit.

How exactly COULD that ever fly constitutionally? The day this goes into effect is the day the precedent is set that they can just do whatever the fuck they want.

Whether or not it is constitutional is what we are trying to define, with varying degrees of success.

[Drachen]

Regardless of the law, if a motherfucker tries to remove MY bodily fluids from my body without my consent, he'd better be ready to leak some of his own because that's total bullshit.

How exactly COULD that ever fly constitutionally? The day this goes into effect is the day the precedent is set that they can just do whatever the fuck they want.

That is kinda the point, that we think (though we are obviously not lawyers) that it cannot fly constitutionally (without a warrant).

[Bender]

where's From Way Downtown when you need him?

[CosmicCowboy]

How do you "further investigate" a DWI if not by administering tests that criminal defendant's object too on fourth amendment grounds?

That's their problem.

If I am ever accused I am:

denying drinking anything
refusing the sobriety test
Refusing the blood test
calling my attorney

[vy65]

lol lawyer who can't support his theory


"The smell of alcohol [alone] gives probable cause"

Link?

Case?

(a) Reasonable, articulable suspicion to conduct the DUI investigation. Before the officer asked Blankenship to exit the vehicle so as to conduct a DUI investigation (including field sobriety tests), the officer had smelled a strong odor of alcohol on Blankenship's breath and had observed Blankenship's watery, bloodshot eyes. "The alcoholic smell provided the officer reasonable grounds to conduct a second-tier investigatory detention." Whitmore v. State.[fn10] See Peterson v. State[fn11] (alcoholic smell alone gave police "sufficiently reasonable and articulable suspicion to administer field sobriety . . . tests"); McClain v. State[fn12] (same).

BLANKENSHIP v. STATE, 301 Ga. App. 602 (2009) 688 S.E.2d 395

The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App. 1995)

HAM v. STATE, 810 N.E.2d 1150 (Ind.App. 2004)

The fact that Dalton smelled strongly of alcohol, alone, provided sufficient probable cause to at least offer Dalton a chemical test. See State v. Johnson, 503 N.E.2d 431, 432 (Ind.Ct.App. 1987), trans. denied. Based on these facts, we find there was sufficient probable cause for Hainje to offer Dalton a test to determine whether he was intoxicated.

DALTON v. STATE, 773 N.E.2d 332 (Ind.App. 2002)

[fn8] The defendant argues that our conclusion that probable cause for arrest existed in Commonwealth v. Blais, 428 Mass. 294, 296 (1998), is inapposite for two reasons: the defendant in Blais was observed driving his vehicle prior to the officer's detection of his intoxicated condition, unlike the defendant here, who was parked; and the officer in Blais detected a "strong" odor of alcohol on the defendant's breath, whereas here the trooper testified to smelling only "an odor" of alcoholic beverage on the defendant's breath. As to the first point, we note, supra, that "operating" in G.L.c. 90, § 24, is not limited to driving. As to the defendant's second point, we do not consider this a meaningful factual distinction.

COMMONWEALTH v. ECKERT, 431 Mass. 591 (2000)[/QUOTE]

You'll notice that in each of these cases - the smell of alcohol alone allowed a cop to administer more tests (further investigate) - and the admissibility of the test results is being challenged on fourth amendment grounds.

[mavs>spurs]

If you're thinking about whether or not it's constitutional, look no further than the 4th amendment. But in many cases these cops use all kinds of loopholes and bullshit to do things outside the law, just like how they have been arresting people and tagging with them with those bullshit "wiretapping" charges for filming police which the courts have been throwing out and already ruled against. Hell, we just bombed a country without congressional approval simply by changing the wording to "kinetic military action," you think they won't take your blood?

[mavs>spurs]

also, smell being probable cause is wrong period because smell is something that only the officer can verify, there's no real evidence a cop can just say he thought he smelled something.

[RandomGuy]

lol shifting goalposts

I haven't shifted the goal posts.

Since you don't seem to be able to draw the distinction between "offer" and "compel":

Offer:
1) To present for acceptance or rejection
6) To exhibit readiness or desire (to do something); volunteer

http://www.thefreedictionary.com/offer

The implication is that the person is free to decline.

Compel:
1.Force or oblige (someone) to do something.
2.Bring about (something) by the use of force or pressure
http://www.thefreedictionary.com/compel

The implication is that the person cannot decline.


If all you have are case laws showing that further investigations were "offered", you have not cleared the bar for what would be covered by a warrant, i.e. the forcible search as allowed by the 4th amendment.

That is not moving the goalposts, that is simple reading comprehension.

[RandomGuy]

How do you "further investigate" a DWI if not by administering tests that criminal defendant's object to on fourth amendment grounds?

You can't.

If they refuse your field sobriety tests, that's it. They have invoked their ability not to testify against themselves (5th amendment).

You do know the difference and significance of that amendment, I hope.

[RandomGuy]

(a) Reasonable, articulable suspicion to conduct the DUI investigation. Before the officer asked Blankenship to exit the vehicle so as to conduct a DUI investigation (including field sobriety tests), the officer had smelled a strong odor of alcohol on Blankenship's breath and had observed Blankenship's watery, bloodshot eyes. "The alcoholic smell provided the officer reasonable grounds to conduct a second-tier investigatory detention." Whitmore v. State.[fn10] See Peterson v. State[fn11] (alcoholic smell alone gave police "sufficiently reasonable and articulable suspicion to administer field sobriety . . . tests"); McClain v. State[fn12] (same).

BLANKENSHIP v. STATE, 301 Ga. App. 602 (2009) 688 S.E.2d 395

The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App. 1995)

HAM v. STATE, 810 N.E.2d 1150 (Ind.App. 2004)

The fact that Dalton smelled strongly of alcohol, alone, provided sufficient probable cause to at least offer Dalton a chemical test. See State v. Johnson, 503 N.E.2d 431, 432 (Ind.Ct.App. 1987), trans. denied. Based on these facts, we find there was sufficient probable cause for Hainje to offer Dalton a test to determine whether he was intoxicated.

DALTON v. STATE, 773 N.E.2d 332 (Ind.App. 2002)

[fn8] The defendant argues that our conclusion that probable cause for arrest existed in Commonwealth v. Blais, 428 Mass. 294, 296 (1998), is inapposite for two reasons: the defendant in Blais was observed driving his vehicle prior to the officer's detection of his intoxicated condition, unlike the defendant here, who was parked; and the officer in Blais detected a "strong" odor of alcohol on the defendant's breath, whereas here the trooper testified to smelling only "an odor" of alcoholic beverage on the defendant's breath. As to the first point, we note, supra, that "operating" in G.L.c. 90, § 24, is not limited to driving. As to the defendant's second point, we do not consider this a meaningful factual distinction.

COMMONWEALTH v. ECKERT, 431 Mass. 591 (2000) [coding error corrected, comment below original--RG]

You'll notice that in each of these cases - the smell of alcohol alone allowed a cop to administer more tests (further investigate) - and the admissibility of the test results is being challenged on fourth amendment grounds.

I am not arguing that the smell of alcohol is not cause for further investigation, i.e. field sobreity tests and asking about alcohol consumed.

I am aruging that the smell of alcohol is not sufficient to compel a blood draw without a warrant, and that you can't get a warrant based on the smell of alcohol alone.

[edit]

I will also argue that you can refuse those "further investigations" based on 5th amendment rights.

Trample on the 4th and 5th amendment rights at your peril.

[vy65]

You can't.

If they refuse your field sobriety tests, that's it. They have invoked their ability not to testify against themselves (5th amendment).

You do know the difference and significance of that amendment, I hope.

edit nvm

[vy65]

I am not arguing that the smell of alcohol is not cause for further investigation, i.e. field sobreity tests and asking about alcohol consumed.

I am aruging that the smell of alcohol is not sufficient to compel a blood draw without a warrant, and that you can't get a warrant based on the smell of alcohol alone.

Then we're arguing two separate things. I never said the smell alone was sufficient to support a blood test in all cases (though there are some that I can think of where it might).

All I said was that the smell alone provides probable cause and allows a cop to investigate a potential DWI.

[CosmicCowboy]

That's their problem.

If I am ever accused I am:

denying drinking anything
refusing the sobriety test
Refusing the blood test
calling my attorney

A personal story...

In my first job out of college I won an inter-company performance contest and the award was for the top 4 finishers to go out on a deep sea fishing trip on the company's 46 foot Bertram. I went, we caught several fish that morning and then had engine trouble and had to cut the trip short and return to the dock. I drank ONE beer on the return trip to shore. When we got to the dock the captain let us divide up the fish and the remaining beer (several cases) that had been allocated for the trip since we got screwed by having to come in early. This cleaning fish, getting ready to leave etc. probably took an hour. I was about halfway back from Freeport to Houston and got pulled over for going 65 in a 60. The cop looked in my ice chest, saw all that beer and fish ( I was obviously coming back from a fishing trip) and said he was aresting me on suspicion of DWI.. I KNEW I wasn't drunk. It had been at least two hours since I had drank my one and only beer...we went to the Brazoria County jail and offered me the breathalyzer, which I took because I knew I wasn't drunk. I blew and he looked at the results and frowned. Then he adjusted some knobs and made me blow again. He frowned again and adjusted the knobs AGAIN and had me blow. After the third one he smiled and said I had blown a .012 and was under arrest for DWI which was total and complete bullshit.

I will NOT EVER voluntarily submit to that shit again.

[RandomGuy]

edit nvm

Accountant 1, Lawyer 0. :p:

[Useruser666]

Randomguy / vy65

Maybe I can translate for you two. Lol I think this is just splitting hairs.

Randomguy is saying that by smell alone, an officer has probable cause for a blood draw. Since drinking and driving is only illegal at an amount above .08 (TX), this could be argued as being not probable cause for the blood draw.
Example: It is illegal to speed at 100mph on the highway, but just because your car is moving, it's not necessarily likely that you’re speeding.

vy65 is saying that by smelling alcohol, the officer has probable cause to investigate further which will lead to the inevitable blood draw.
Example: The officer walks by a group of people and ones smells of alcohol. The officer has probable cause to investigate further and in the end perform a blood draw. The smell of alcohol alone was enough to begin the investigation.

(Edit: I was right!)

[vy65]

Accountant 1, Lawyer 0. :p:

Not really. But if you want, you should start keeping a list . . .

[ElNono]

The right against self-incrimination deals with verbal statements and not non-verbal tests.

http://supreme.justia.com/us/384/757/

Looks like the guy was going to be arrested already in this case, thus the probable cause required to violate his 4th amendment right (which the court agrees was violated by the compulsive blood draw) was already in place (due to the arrest).

So the question then is, can you be forced into a blood draw without being arrested?

[vy65]

Looks like the guy was going to be arrested already in this case, thus the probable cause required to violate his 4th amendment right (which the court agrees was violated by the compulsive blood draw) was already in place (due to the arrest).

So the question then is, can you be forced into a blood draw without being arrested?

I don't understand your question. I didn't care to read the case - I just looked over the syllabus for the holding I wanted (forced blood tests don't engender fifth amendment rights).

[RandomGuy]

A personal story...

In my first job out of college I won an inter-company performance contest and the award was for the top 4 finishers to go out on a deep sea fishing trip on the company's 46 foot Bertram. I went, we caught several fish that morning and then had engine trouble and had to cut the trip short and return to the dock. I drank ONE beer on the return trip to shore. When we got to the dock the captain let us divide up the fish and the remaining beer (several cases) that had been allocated for the trip since we got screwed by having to come in early. This cleaning fish, getting ready to leave etc. probably took an hour. I was about halfway back from Freeport to Houston and got pulled over for going 65 in a 60. The cop looked in my ice chest, saw all that beer and fish ( I was obviously coming back from a fishing trip) and said he was aresting me on suspicion of DWI.. I KNEW I wasn't drunk. It had been at least two hours since I had drank my one and only beer...we went to the Brazoria County jail and offered me the breathalyzer, which I took because I knew I wasn't drunk. I blew and he looked at the results and frowned. Then he adjusted some knobs and made me blow again. He frowned again and adjusted the knobs AGAIN and had me blow. After the third one he smiled and said I had blown a .012 and was under arrest for DWI which was total and complete bullshit.

I will NOT EVER voluntarily submit to that shit again.

.012 is not a DWI. that is less than an eighth of what is currently illegal, .08

If he was adjusting knobs he might have been reducing the body weight index or something. If you lower the body weight then the % shoots up. Sounds fishy, pardon the pun.

http://www.dwiblog.org/wp-content/uploads/2011/04/Breathalyzer-Test-And-Its-Application.jpg

I think any good lawyer could have beaten that.

[RandomGuy]

Not really. But if you want, you should start keeping a list . . .

Ow. :lol

[ElNono]

I'm not privy to the details of the law, but sounds like a catch 22. If you refuse to the test, you're giving the cop the probable cause to arrest you. Once the cop has that, he now has the ability to violate the 4th.

If that's how it works, not sure how it can't be challenged as unconstitutional.

[RandomGuy]

Randomguy / vy65

Maybe I can translate for you two. Lol I think this is just splitting hairs.

Randomguy is saying that by smell alone, an officer [does not have] probable cause for a blood draw. Since drinking and driving is only illegal at an amount above .08 (TX), this could be argued as being not probable cause for the blood draw.
Example: It is illegal to speed at 100mph on the highway, but just because your car is moving, it's not necessarily likely that you’re speeding.

vy65 is saying that by smelling alcohol, the officer has probable cause to investigate further which will lead to the inevitable blood draw.
Example: The officer walks by a group of people and ones smells of alcohol. The officer has probable cause to investigate further and in the end perform a blood draw. The smell of alcohol alone was enough to begin the investigation.

(Edit: I was right!)

fixed. I also say that you can refuse further investigation based on 5th amendment rights.

The blood draw is not "inevitable".

[CosmicCowboy]

.012 is not a DWI. that is less than an eighth of what is currently illegal, .08

If he was adjusting knobs he might have been reducing the body weight index or something. If you lower the body weight then the % shoots up. Sounds fishy, pardon the pun.

http://www.dwiblog.org/wp-content/uploads/2011/04/Breathalyzer-Test-And-Its-Application.jpg

I think any good lawyer could have beaten that.

Eh...meant .12

The real sucky part is they kept me three days without a phone call. I got the feeling the whole system in Brazoria County in 1978 was corrupt. They just wanted their fine money from the smartass city boy from Houston.

[RandomGuy]

I'm not privy to the details of the law, but sounds like a catch 22. If you refuse to the test, you're giving the cop the probable cause to arrest you. Once the cop has that, he now has the ability to violate the 4th.

If that's how it works, not sure how it can't be challenged as unconstitutional.

Hopefully I can get vy so worked up he will go and ask one of his professors, or get off his ass and find something a bit more applicable.

Given his inability to find something in the case law, either it isn't there, or he sucks at looking this stuff up. I would lean towards the former.

[ElNono]

I don't understand your question. I didn't care to read the case - I just looked over the syllabus for the holding I wanted (forced blood tests don't engender fifth amendment rights).

Just commenting on the link you posted, namely this part:

4. In view of the substantial interests in privacy involved, petitioner's right to be free of unreasonable searches and seizures applies to the withdrawal of his blood, but, under the facts in this case, there was no violation of that right.

(a) There was probable cause for the arrest, and the same facts as established probable cause justified the police in requiring petitioner to submit to a test of his blood alcohol content.


From what I read there, there was no violation of the 4th because the guy was getting arrested, which implies police already had probable cause (could've been because of reckless driving or anything else, I didn't dig deep into the case).

[vy65]

I'm not privy to the details of the law, but sounds like a catch 22. If you refuse to the test, you're giving the cop the probable cause to arrest you. Once the cop has that, he now has the ability to violate the 4th.

If that's how it works, not sure how it can't be challenged as unconstitutional.

Refuse which test? Blood or something else like a field sobriety test?

[RandomGuy]

Eh...meant .12

The real sucky part is they kept me three days without a phone call. I got the feeling the whole system in Brazoria County in 1978 was corrupt. They just wanted their fine money from the smartass city boy from Houston.

I thought you meant .12

I think your assessment is probably correct.

These days I would guess they can't get away with shit like that in the pissant towns because the penalties have been so jacked up that going along with it is not something anyone would accede to. One might not fight over $100, but $10,000+ is another matter entirely.

[vy65]

You're taking this out of context.

Someone mentioned that a blood alcohol test violated the self-incrimination rights under the 5th amendment. I quoted that case only for the proposition that the fifth amendment only covers verbal statements and does not extend to shit like blood, odor, etc...

[Drachen]

A personal story...

In my first job out of college I won an inter-company performance contest and the award was for the top 4 finishers to go out on a deep sea fishing trip on the company's 46 foot Bertram. I went, we caught several fish that morning and then had engine trouble and had to cut the trip short and return to the dock. I drank ONE beer on the return trip to shore. When we got to the dock the captain let us divide up the fish and the remaining beer (several cases) that had been allocated for the trip since we got screwed by having to come in early. This cleaning fish, getting ready to leave etc. probably took an hour. I was about halfway back from Freeport to Houston and got pulled over for going 65 in a 60. The cop looked in my ice chest, saw all that beer and fish ( I was obviously coming back from a fishing trip) and said he was aresting me on suspicion of DWI.. I KNEW I wasn't drunk. It had been at least two hours since I had drank my one and only beer...we went to the Brazoria County jail and offered me the breathalyzer, which I took because I knew I wasn't drunk. I blew and he looked at the results and frowned. Then he adjusted some knobs and made me blow again. He frowned again and adjusted the knobs AGAIN and had me blow. After the third one he smiled and said I had blown a .012 and was under arrest for DWI which was total and complete bullshit.

I will NOT EVER voluntarily submit to that shit again.

This sounds like the DWI i got when I was 21. Bought a 6-pack, went to a party, drank 3 in the span of 4.5 hours. Finished the last right before I left, got pulled over for speeding (70 in a 60). The cop saw my record (already had a DWI), asked me to blow and since I knew I wasn't drunk, I blew.... Stupid mistake.

[ElNono]

You're taking this out of context.

Someone mentioned that a blood alcohol test violated the self-incrimination rights under the 5th amendment. I quoted that case only for the proposition that the fifth amendment only covers verbal statements and does not extend to shit like blood, odor, etc...

Oh no, I know why you posted it. But it's a case that also includes a 4th amendment challenge, which is also what was being talked about here now.
I just found that part interesting, that's all. Not arguing or being contrarian.

[Th'Pusher]

vy is kind of a shitty layer tbh.

[ElNono]

Refuse which test? Blood or something else like a field sobriety test?

Any compulsory search that violates the 4th, like a compulsory blood test or vehicle search.

[RandomGuy]

You're taking this out of context.

Someone mentioned that a blood alcohol test violated the self-incrimination rights under the 5th amendment. I quoted that case only for the proposition that the fifth amendment only covers verbal statements and does not extend to shit like blood, odor, etc...

I never said that a blood alcohol test violated the 5th amendment.

That is you, yet again, not being able to understand what you are reading.

[vy65]

I never said that a blood alcohol test violated the 5th amendment.

That is you, yet again, not being able to understand what you are reading.

that was for elnono, champ

[vy65]

vy is kind of a shitty layer tbh.

:tu

[RandomGuy]

that was for elnono, champ

"Someone" also referred to winehole, not me. My mistake.

[vy65]

Any compulsory search that violates the 4th, like a compulsory blood test or vehicle search.

Now that I think about it, you're right. But the point is that your refusal to take the test prevents evidence of drunkeness from entering trial (because it doesn't exist), so you're ultimately not convicted.

You can beat the rap, but you can't beat the ride.

[RandomGuy]

(From a DWI attorneys website)
If you fail to voluntarily submit to a blood or breath test, in some cases a police officer can get a search warrant to forcibly take your blood. The 4th Amendment to the United States Constitution prohibits unreasonable searches and seizures. Extracting a sample of your blood certainly qualifies as a search and seizure, and therefore the withdrawal of your blood for purposes of DWI testing must be reasonable.

"in some cases"

Implying that, at least some of the time, they cannot get a warrant to forcibly take blood.

I wonder what those circumstances are?

[RandomGuy]

Now that I think about it, you're right. But the point is that your refusal to take the test prevents evidence of drunkeness from entering trial (because it doesn't exist), so you're ultimately not convicted.

You can beat the rap, but you can't beat the ride.

http://www.trephination.net/gallery/macros/last_week.jpg


You're getting there... just a little farther...

[ElNono]

Now that I think about it, you're right. But the point is that your refusal to take the test prevents evidence of drunkeness from entering trial (because it doesn't exist), so you're ultimately not convicted.

You can beat the rap, but you can't beat the ride.

Well, that's like saying "refusing to take a blood test" on a murder investigation prevents DNA evidence from entering trial (because it doesn't exist), so you're ultimately not convicted.

Yet a cop needs a warrant to compel you for that test. My 2c anyways.

[scott]

Why don't you think that the smell of alcohol (alone) is sufficient to warrant a prudent person to believe the driver has committed the crime of DWI?

I work in a brewery. I always smell like beer, even when I've never had any. Probably because I'm covered in it. Does that mean if I get pulled over there is sufficient reason to suspect me of DWI?

[vy65]

I work in a brewery. I always smell like beer, even when I've never had any. Probably because I'm covered in it. Does that mean if I get pulled over there is sufficient reason to suspect me of DWI?

Yes. Just because there's probable cause to believe you committed a crime doesn't mean that you actually did. That's why it's called probable and not definite.

[scott]

So you are saying that my employment gives the cops the right to draw my blood whenever they want.

Cool story bro.

[RandomGuy]

I work in a brewery. I always smell like beer, even when I've never had any. Probably because I'm covered in it. Does that mean if I get pulled over there is sufficient reason to suspect me of DWI?

A prudent person would think so. That prudent person would then take a sample of your blood under the guise of "further investigation", apparently without a warrant.

[vy65]

So you are saying that my employment gives the cops the right to draw my blood whenever they want.

Cool story bro.

No. I'm not saying that.

[RandomGuy]

I am not arguing that the smell of alcohol is not cause for further investigation, i.e. field sobreity tests and asking about alcohol consumed.

I am aruging that the smell of alcohol is not sufficient to compel a blood draw without a warrant, and that you can't get a warrant based on the smell of alcohol alone.

[edit]

I will also argue that you can refuse those "further investigations" based on 5th amendment rights.

Trample on the 4th and 5th amendment rights at your peril.

I think I will ask a real lawyer with some applicable experience about this one. It interests me enough to make the effort.

[Blake]

So you are saying that my employment gives the cops the right to draw my blood whenever they want.

Cool story bro.

if you drive home after shutting it down around what, 330-4am(?), get pulled over for a moving violation and the cop smells it on you?

theoretically, yeah, they could argue probable cause to a JP every time.

[RandomGuy]

So you are saying that my employment gives the cops the right to draw my blood whenever they want.


No. I'm not saying that.

????


I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol.


The smell of alcohol gives probable cause to believe drunkeness (i.e., a crime). The blood test confirms BAC.


How do you "further investigate" a DWI if not by administering tests that criminal defendant's object too on fourth amendment grounds?



All I said was that the smell alone provides probable cause and allows a cop to investigate a potential DWI.

[ElNono]

if you drive home after shutting it down around what, 330-4am(?), get pulled over for a moving violation and the cop smells it on you?

theoretically, yeah, they could argue probable cause to a JP every time.

They could argue reckless driving or some such that would give them probable cause. But I don't know you can stretch that to a DWI checkpoint.

[RandomGuy]

if you drive home after shutting it down around what, 330-4am(?), get pulled over for a moving violation and the cop smells it on you?

theoretically, yeah, they could argue probable cause to a JP every time.

I don't think the smell alone is sufficient for a warrant.

I have asked vy to back up his assertion that it is sufficient and he has, thus far, failed to provide any contrary to what he seems to think.

You could argue it to a JP, but without further evidence, such as an admission of consumption or failed sobriety tests, you would not get it, IMO.

[vy65]

Probable cause to investigate doesn't mean the cops can jump to a blood test.

I never said the smell alone was sufficient for a blood test. Only for further tests.

If you can't understand the distinction, you might want to consult with a real lawyer with experience in the area.

[RandomGuy]

Probable cause to investigate doesn't mean the cops can jump to a blood test.

I never said the smell alone was sufficient for a blood test. Only for further tests.

If you can't understand the distinction, you might want to consult with a real lawyer with experience in the area.

That is *precisely* the distinction I have been attempting to make over and over and over. You seem to be finally there, congratulations.

You might want to go back and re-read the thread.

[vy65]

lol

Where'd you draw that distinction?

[RandomGuy]

By the time you are asked to do a breath test, the police have "probable cause". They get to that probable cause because you have answered questions ("yes, I was drinking"), and likely participated in a field sobriety test, both actions are essentially waiving your 5th amendment rights.

Yes, it is constitutional.

When you are pulled over, remember, it is a police investigation that you are not required to cooperate with, beyond giving them your license and registration.

"Have you had anything to drink?"
"I am not going to answer that question." (5th amendment)

"Can you walk this line?"
"No thank you." (5th amendment)

If they want to give you a ticket for speeding or no turn signal or such, sign that promise to appear, but beyond that I am pretty sure the 5th amendment covers most things they will ask of you.

I'm sure our resident lawyers can probably vouch for this. Hell, please correct me if my understanding is incorrect.

Once you have waived your 5th amendment rights by submitting to the "tests", i.e. questioning, they then can go over the 4th amendment by getting a warrant with "probable cause" to do a blood draw.

[ElNono]

:drunk

[RandomGuy]

Smelling alchohol doens't rise to "probable cause", but once they "notice other symptoms of drunkenness" that gets it over the bar and allows for the forced blood draw.

Correct?



I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol. Plus, you got to figure in the fact that the cop pulled them over in the first place (i.e., speeding, swerving, etc...) which, when added to the smell, more than justifies the test.

[Th'Pusher]

lol

Where'd you draw that distinction?

Dud you kind of are a shitty lawyer. That has been his point from the beginning.

[RandomGuy]

Anyhoo, gotta get going. Vy, let me know when you get any case law that shows that the police compel blood samples, or any other tests for that matter, with only the smell of alcohol.

Not offer, compel.

Or maybe you would like to keeping walking that back?

[Th'Pusher]

lol

Where'd you draw that distinction?

That's been his point all along and he's pointed it out multiple times. You really are a pretty shitty lawyer.

[vy65]

Once you have waived your 5th amendment rights by submitting to the "tests", i.e. questioning, they then can go over the 4th amendment by getting a warrant with "probable cause" to do a blood draw.

I can quote shit too:


Smelling alchohol doens't rise to "probable cause", but once they "notice other symptoms of drunkenness" that gets it over the bar and allows for the forced blood draw.

Correct?


I found this: The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992)

I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol. Plus, you got to figure in the fact that the cop pulled them over in the first place (i.e., speeding, swerving, etc...) which, when added to the smell, more than justifies the test.

Just because the police have probable cause doesn't mean any and all searches are reasonable. The fourth amendment speaks to reasonable searches supported by probable cause. When I originally answered your question of whether smell alone gave the police probable cause to believe a crime had been committed, I did not then say the cops could then draw the drivers blood to see the BAC. I said that they have probable cause to investigate further - i.e. conducting a field sobriety test, etc...

[vy65]

That's been his point all along and he's pointed it out multiple times. You really are a pretty shitty lawyer.

Where'd I say that smelling alcohol alone allows the cops to administer a blood test?

You might want to stop gargling RG's balls and show me how shitty I am.

[Th'Pusher]

I can quote shit too:





Just because the police have probable cause doesn't mean any and all searches are reasonable. The fourth amendment speaks to reasonable searches supported by probable cause. When I originally answered your question of whether smell alone gave the police probable cause to believe a crime had been committed, I did not then say the cops could then draw the drivers blood to see the BAC. I said that they have probable cause to investigate further - i.e. conducting a field sobriety test, etc...

You just don't read. Look at his first fucking post:


By the time you are asked to do a breath test, the police have "probable cause". They get to that probable cause because you have answered questions ("yes, I was drinking"), and likely participated in a field sobriety test, both actions are essentially waiving your 5th amendment rights.

Yes, it is constitutional.

When you are pulled over, remember, it is a police investigation that you are not required to cooperate with, beyond giving them your license and registration.

"Have you had anything to drink?"
"I am not going to answer that question." (5th amendment)

"Can you walk this line?"
"No thank you." (5th amendment)

If they want to give you a ticket for speeding or no turn signal or such, sign that promise to appear, but beyond that I am pretty sure the 5th amendment covers most things they will ask of you.

I'm sure our resident lawyers can probably vouch for this. Hell, please correct me if my understanding is incorrect.

[vy65]

Anyhoo, gotta get going. Vy, let me know when you get any case law that shows that the police compel blood samples, or any other tests for that matter, with only the smell of alcohol.

Not offer, compel.

Or maybe you would like to keeping walking that back?

That's never been the point. I never said smell automatically gets you to the blood test. I said that smell alone gives you probable cause which allows you to conduct other tests. I gave you 4 cases that held this exact point.

Why is this so hard for you to understand?

[vy65]

You just don't read. Look at his first fucking post:

I was never responding to that point. He asked me if smell alone could provide probable cause. The answer to that is yes. But just because the answer is yes doesn't mean you get to administer a blood test.

Gargle his balls some more you fucking idiot.

[Wild Cobra]

Essentially, this sort of thing amounts to state compulsion of self-incrimination. As ever, it's a perfectly valid LE tactic until the courts say no.
Oregon has been doing this for at least a decade. I'm pretty sure they get away with it because driving is considered a privilege rather than a right.

[Th'Pusher]

Where'd I say that smelling alcohol alone allows the cops to administer a blood test?

You might want to stop gargling RG's balls and show me how shitty I am.

No ball gargling. It was pretty obvious his point all along as he spelled it out blatantly in his first post and asked for the resident layers to chime in. You did, but took a defensive position from the beginning and didn't bother to answer his post.

Everyone seemed to be following along but you. No ability to comprehend = shitty lawyer in my estimation.

[vy65]

No ball gargling. It was pretty obvious his point all along as he spelled it out blatantly in his first post and asked for the resident layers to chime in. You did, but took a defensive position from the beginning and didn't bother to answer his post.

Everyone seemed to be following along but you. No ability to comprehend = shitty lawyer in my estimation.

It was pretty obvious that he asked me a question and I answered with case law. Just because your mongoloid brain can't comprehend the distinction doesn't make me a shitty lawyer. It just makes you a fucking retard.

[CosmicCowboy]

Oregon has been doing this for at least a decade. I'm pretty sure they get away with it because driving is considered a privilege rather than a right.

They can take your license away for not submitting to the test ( the driving privilege you speak of) but they can't force you to take the test without a warrant.

[Wild Cobra]

I work in a brewery. I always smell like beer, even when I've never had any. Probably because I'm covered in it. Does that mean if I get pulled over there is sufficient reason to suspect me of DWI?
The smell of wert is not the same as the smell of alcohol.

You should know that.

[Wild Cobra]

They can take your license away for not submitting to the test ( the driving privilege you speak of) but they can't force you to take the test without a warrant.
This is true. There is that difference.

[Th'Pusher]

I was never responding to that point. He asked me if smell alone could provide probable cause. The answer to that is yes. But just because the answer is yes doesn't mean you get to administer a blood test.

Gargle his balls some more you fucking idiot.

I don't think you have sufficiently proven the answer is yes. If you need probable cause to administer the blood test and smell alone is probable cause, why wouldn't you be able to administer the blood test?

[RandomGuy]

I was never responding to that point. He asked me if smell alone could provide probable cause. The answer to that is yes. But just because the answer is yes doesn't mean you get to administer a blood test.

Gargle his balls some more you fucking idiot.


Smelling alchohol doens't rise to "probable cause", but once they "notice other symptoms of drunkenness" that gets it over the bar and allows for the forced blood draw.

Correct?


more than justifies the test[/B].

So when I asked you about a forced blood draw, and you responded yes, "the test" is justified based on the smell, you weren't talking about a "forced blood draw", but some other test?

[vy65]

I don't think you have sufficiently proven the answer is yes. If you need probable cause to administer the blood test and smell alone is probable cause, why wouldn't you be able to administer the blood test?

This is my fault for assuming that you all understand shit that you don't have any reason to know.

A police officer needs probable cause to conduct a search. Probable cause just means that a cop has to reasonably believe that a crime has been committed. Once a cop has probable cause, his search still has to comply with the fourth amendment - it has to be reasonable.

RG asked me whether smell alone supports a police officer's assertion that he has probable cause to do a search. The answer to that question is yes (I think it's reasonable to assume that someone who smells like alcohol could be drunk, and the cases I've cited support that). That's all I have been arguing this entire time

But just because a police officer has probable cause to conduct a search doesn't mean all searches are now available. The cop's search has to be reasonable. It probably isn't reasonable to conduct a blood test based off smell alone because that is a highly invasive procedure. That has been RG's point.

You all think I've been saying smell alone gives the cops a basis for drawing blood. I have never said that. All I said was that smell alone gives the cops probable cause to investigate further. That investigation still has to be reasonable.

If you took the time to read what people say instead of calling them shitty you might have realized this. But then again, I shouldn't expect much from someone with a screename for all the times they've taken it up the ass.

[RandomGuy]

When I say "probable cause" I mean it in the legal sense:


The probable cause standard is more important in Criminal Law than it is in Civil Law because it is used in criminal law as a basis for searching and arresting persons and depriving them of their liberty.
http://legal-dictionary.thefreedictionary.com/probable+cause

"probable cause" is used as the justification for a warrant, and in this case a blood draw, presumedly with a warrant.

You don't need probable cause to apply non-warrant actions, such as asking people questions, which they can decline, based on their 5th amendment rights.


Police may briefly detain and conduct a limited search of a person in a public place if they have a reasonable suspicion that the person has committed a crime. Reasonable suspicion is a level of belief that is less than probable cause. A police officer possesses reasonable suspicion if he has enough knowledge to lead a reasonably cautious person to believe that criminal activity is occurring and that the individual played some part in it. In practice this requirement means that an officer need not possess the measure of knowledge that constitutes probable cause to Stop and Frisk a person in a public place. In any case, an officer may not arrest a person until the officer possesses probable cause to believe that the person has committed a crime.

[vy65]

So when I asked you about a forced blood draw, and you responded yes, "the test" is justified based on the smell, you weren't talking about a "forced blood draw", but some other test?

We weren't talking about smell alone at that point.


I'd argue a reasonably prudent person would believe a DWI has taken place given the smell of alcohol. Plus, you got to figure in the fact that the cop pulled them over in the first place (i.e., speeding, swerving, etc...) which, when added to the smell, more than justifies the test.

But when I wrote that, I wasn't thinking about blood testing - I was thinking FST or breathalyzer. Looking back over it, I can see how you'd be confused.

[RandomGuy]

RG asked me whether smell alone supports a police officer's assertion that he has probable cause to do a search. The answer to that question is yes (I think it's reasonable to assume that someone who smells like alcohol could be drunk, and the cases I've cited support that)

Nothing in the case law said that smell alone was cause for a search.

They all used that as a basis to continue investigating.

Still can't figure that one out?

[vy65]

Nothing in the case law said that smell alone was cause for a search.

They all used that as a basis to continue investigating.

Still can't figure that one out?

Why do you think the tests administered in those cases aren't searches?

[RandomGuy]

We weren't talking about smell alone at that point.



But when I wrote that, I wasn't thinking about blood testing - I was thinking FST or breathalyzer. Looking back over it, I can see how you'd be confused.

I think you have confused "reasonable suspicion" and "probable cause".

[vy65]

And before you go off on some irrelevant tangent about offer/compel - reread those cases and focus on the implied consent law, ok?

[RandomGuy]

Why do you think the tests administered in those cases aren't searches?

Field sobriety tests and answering the question "have you been drinking" are not searches because they are optional. You don't have to submit to them. (5th amendment)

[Th'Pusher]

This is my fault for assuming that you all understand shit that you don't have any reason to know.

A police officer needs probable cause to conduct a search. Probable cause just means that a cop has to reasonably believe that a crime has been committed. Once a cop has probable cause, his search still has to comply with the fourth amendment - it has to be reasonable.

RG asked me whether smell alone supports a police officer's assertion that he has probable cause to do a search. The answer to that question is yes (I think it's reasonable to assume that someone who smells like alcohol could be drunk, and the cases I've cited support that). That's all I have been arguing this entire time

But just because a police officer has probable cause to conduct a search doesn't mean all searches are now available. The cop's search has to be reasonable. It probably isn't reasonable to conduct a blood test based off smell alone because that is a highly invasive procedure. That has been RG's point.

You all think I've been saying smell alone gives the cops a basis for drawing blood. I have never said that. All I said was that smell alone gives the cops probable cause to investigate further. That investigation still has to be reasonable.

If you took the time to read what people say instead of calling them shitty you might have realized this. But then again, I shouldn't expect much from someone with a screename for all the times they've taken it up the ass.

No. A cop always has the authority to further investigate regardless of whether or not he has probable cause. Often, he is able to get probable cause through further investigation which was RG's point. Don't give them probable cause. As soon as you say the officer has probable cause to search, that means search his car, his blood, whatever.

[vy65]

Field sobriety tests and answering the question "have you been drinking" are not searches because they are optional. You don't have to submit to them. (5th amendment)

The cases involved chemical tests - not FSTs.

[vy65]

No. A cop always has the authority to further investigate regardless of whether or not he has probable cause. Often, he is able to get probable cause through further investigation which was RG's point. Don't give them probable cause. As soon as you say the officer has probable cause to search, that means search his car, his blood, whatever.

That's wholly irrelevant to what we've been debating.

[RandomGuy]

And before you go off on some irrelevant tangent about offer/compel - reread those cases and focus on the implied consent law, ok?


All U.S. states have driver licensing laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states' police power, against challenges under the Fourth Amendment (as a reasonable search and seizure) and Fifth Amendment (as not violative of the right against self-incrimination). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test.[1]

http://en.wikipedia.org/wiki/Implied_consent

You know, you could have led off with that to begin with.

[Th'Pusher]

That's wholly irrelevant to what we've been debating.

No, it's really not when you say "Probable cause just means that a cop has to reasonably believe that a crime has been committed."

Probable cause means the officer has a right to search. If smell alone gives the officer the right to search, then why would the officer not be entitled to draw blood, i.e search?

[vy65]

http://en.wikipedia.org/wiki/Implied_consent

You know, you could have led off with that to begin with.

What's the fun in that?

[RandomGuy]

V C Section 23612 Implied Consent For Chemical Testing
Implied Consent For Chemical Testing
23612. (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

That example still specifies "if lawfully arrested".

Meaning you have to give one if you have been lawfully arrested.

The question then becomes what is "lawfully arrested"?

[RandomGuy]

I'm not sure "lawfully arrested" encompasses "smells like beer and we don't really have any other evidence".

[vy65]

No, it's really not when you say "Probable cause just means that a cop has to reasonably believe that a crime has been committed."

What you said is not relevant.


Probable cause means the officer has a right to search. If smell alone gives the officer the right to search, then why would the officer not be entitled to draw blood, i.e search?

Because it's not reasonable. And it's not reasonable because there are less invasive ways of getting similar information (i.e., breathalyzer, FST).

[vy65]

I'm not sure "lawfully arrested" encompasses "smells like beer".

It probably doesn't. But lawfully arrested probably encompasses: smells like beer, can't walk straight, and has slurred speech.

And I think if you start with smells like beer, it's reasonable to look into whether you also have slurred speech and can't walk straight.

[RandomGuy]

The Implied Consent Fallacy in Texas DWI Cases

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Trackbacks Chapter 724 of the Texas Transportation Code is entitled “Implied Consent” and this law covers the rules regarding driver’s license suspension hearings for Texas DWI breath test refusal cases.

The basic legal premise justifying a DL suspension in refusal cases is that every person that has a Texas driver’s license already agreed to submit to a breath (or blood) test by virtue of applying for the license itself.

724.011 “Consent to Taking of a Specimen” reads in part:

If a person is arrested for …[DWI]… the person is deemed to have consented… to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.

Since, therefore, you already agreed to take a breath test if you were arrested for DWI, the law says that if you refuse, they can suspend your driver’s license. For 180 days.

It’s one of those things that sounds good, but let’s examine it further.

Google defines “logical fallacy” as: “a misconception resulting from incorrect reasoning”, and that sounds good to me. Why then do I call the concept known as “implied consent” a logical fallacy?

“…the person is deemed to have consented…” [emphasis added]

If a person actually, intentionally and knowingly consents to submitting a breath or blood specimen on demand at the time of applying for a Texas driver’s license, then it would logically follow that they have forfeited their 24/7 driving privileges if they subsequently refuse to follow through on that promise.

But that’s not what happens. No one knows that this law exists. Nor is anyone told this when they apply for a license. In fact, most Texans know that it is not a crime to refuse to take a breath test (as it is in some states).

The law merely states that everybody is “deemed” to have consented…which is just legal mumbo jumbo for saying “we presume you have consented, even though you didn’t know you did…”

It might make sense to suspend a privilege such as the right to drive, if a person refused to live up to their end of their bargain; that is, what they knowingly agreed to do when they asked for the license.

But pretending that everyone knowingly agreed to give a sample of breath, and punishing them for breaking a promise they didn't know they made...well, that's why it's called "Implied" not "Actual Consent".

http://dwi.austindefense.com/2007/02/articles/license-suspension-alr-hearing/the-implied-consent-fallacy-in-texas-dwi-cases/

I think I would rather take the 180 suspension than the DWI.

(edit)

Seems like they nail you even harder if you outright refuse. Yikes. Nevermind that.

[RandomGuy]

It probably doesn't. But lawfully arrested probably encompasses: smells like beer, can't walk straight, and has slurred speech.

And I think if you start with smells like beer, it's reasonable to look into whether you also have slurred speech and can't walk straight.

I fully agree.

[RandomGuy]

If I am Arrested for DWI in Texas, am I Required to Take a Chemical Test?
Technically, no. If you are arrested and charged with a DWI, you may choose not to take a breath or blood BAC (blood alcohol content) test. However, a refusal to do so will have serious consequences due to Texas' implied consent laws.

What is Implied Consent?
Texas' implied consent law states that if a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, the person is deemed to have consented to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration in the persons body. Thus, by driving in Texas, you have consented to a chemical test.

What are the Penalties for Refusing to Take a Breath or Blood Test After Being Arrested for DWI?
If you are lawfully arrested for a DWI and refuse to submit to a BAC test in Texas, you will be subjected to an administrative penalty. The penalty for refusing to take a BAC test is in addition to the standard penalties for DWI. Even if you are acquitted of DWI charges, you will still face these administrative penalties:

■First Offense: License suspension of 180 days
■Second Offense Within 10 Years of DWI Arrest: License suspension of 2 years
However, if your license is administratively suspended for refusing to take a BAC test, you can apply for an occupational license that may allow you to drive to and from work, and to perform essential household duties.

Should I Take a BAC Test?
Deciding whether or not to take a BAC test is a personal choice. If you refuse, you face stiff penalties. However, many criminal defense attorneys in Texas recommend refusing to take the test unless you are sure that your BAC level is below the legal limit.. This is a risk. You may be able to avoid a DWI conviction by refusing a test because there is no evidence of the amount of alcohol in your system. The administrative penalty for BAC test refusals is less than the penalty for DWI convictions, especially considering the availability of occupational licenses. However, if you refuse to submit to a BAC test, you may still be found guilty of DWI and will be assessed further penalties due to your refusal.

Do I Need a Texas Lawyer if I Have Been Charged With a BAC Test Refusal?
DWI arrests are serious and can have severe consequences. If you refused a chemical BAC test when arrested, you need to contact a criminal defense attorney who specializes in DWI defense immediately. Your attorney will be able to help you fight any charges and may be able to help you reduce your penalties.

http://www.legalmatch.com/law-library/article/refusing-a-dwi-test-and-implied-consent-in-texas.html

[Th'Pusher]

Because it's not reasonable. And it's not reasonable because there are less invasive ways of getting similar information (i.e., breathalyzer, FST).

And if Scott, smelling like beer, refuses the breathalyzer and FST, you then have the right to take a blood test?

[RandomGuy]

If you are ever pulled over for suspicion of driving while intoxicated (DWI), the police officer will probably ask you to take a breath test. Should the results indicate your blood alcohol content (BAC) is above the legal limit of 0.08%, you will then be arrested and charged with DWI.

But what happens if you simply do not take the test? You can’t be charged if you don’t take it, right? Wrong. In fact, due to implied consent laws, refusing to take a breath test can lead to harsher penalties than failing it.

You may not realize it, but when you accepted a driver’s license from the state, you promised to abide by the implied consent law. In other words, you agreed to comply with any police officer if he or she asks you to take a breath test. Therefore, if you refuse to submit to chemical testing—be it a breath, blood or urine test—you will face criminal charges.

A police officer cannot force you to take a breath test unless you were involved in an accident that led to a serious injury or death. Nevertheless, violating the implied consent law is a serious crime, and is punishable by a 180-day license suspension. If you have a prior DWI arrest on your record, the suspension can last up to two years.

In addition to losing your driving privileges, you may still be charged with DWI if you refuse to take a breath test. If convicted of DWI, your license will be suspended for even longer, and you may be sentenced to jail time, community service and/or probation. You can also expect to pay some hefty fines, and may be ordered to attend an alcohol education program as well.

Fortunately, an experienced DWI attorney can help. If you have refused to take a breath test, you should seek legal counsel immediately. With the proper defense, you can fight the charges against you, and may even be able to reduce or eliminate them altogether.

http://www.austindwilawyer.net/texasdwiimpliedconsent.html

[vy65]

And if Scott, smelling like beer, refuses the breathalyzer and FST, you then have the right to take a blood test?


But just because a police officer has probable cause to conduct a search doesn't mean all searches are now available. The cop's search has to be reasonable. It probably isn't reasonable to conduct a blood test based off smell alone because that is a highly invasive procedure. That has been RG's point.

Why is this so difficult for you to understand?

Why are you asking a shitty lawyer legal questions?

[RandomGuy]

Sec. 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 32, eff. Sept. 1, 1997.

Sec. 724.012. TAKING OF SPECIMEN.

(a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage Code.

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer's request to submit to the taking of a specimen voluntarily:
(1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:
(A) any individual has died or will die;
(B) an individual other than the person has suffered serious bodily injury; or(C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;(2) the offense for which the officer arrests the person is an offense under Section 49.045, Penal Code; or
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:

(A) has been previously convicted of or placed on community supervision for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.

(c) The peace officer shall designate the type of specimen to be taken.


(d) In this section, "bodily injury" and "serious bodily injury" have the meanings assigned by Section 1.07, Penal Code

http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.724.htm

[Th'Pusher]

Why is this so difficult for you to understand?

Why are you asking a shitty lawyer legal questions?

Because you suggested you have probable cause. If Scott denies the less intrusive methods, you should be able to blood test him based on the fact that you have probable cause (he smells like beer).

I don't know why you are still arguing. You have already resigned to the fact that smell alone is not probable cause for a search, only reason to further investigate, which an officer can do with or without probable cause.

[RandomGuy]

And if Scott, smelling like beer, refuses the breathalyzer and FST, you then have the right to take a blood test?

Scott, by applying for a drivers license has given up some of his rights under the 4th and 5th amendments.

[Th'Pusher]

Scott, by applying for a drivers license has given up some of his rights under the 4th and 5th amendments.

Yes. But that came much later in the debate. And shitty lawyer was unaware of that fact when he said smell alone gives an officer probable cause. I took issue with the fact that he was standing by 'smell alone gives probable cause' yet never proved it.

[vy65]

Because you suggested you have probable cause. If Scott denies the less intrusive methods, you should be able to blood test him based on the fact that you have probable cause (he smells like beer).

I don't know why you are still arguing. You have already resigned to the fact that smell alone is not probable cause for a search, only reason to further investigate, which an officer can do with or without probable cause.

When did I say that smell alone doesn't provide probable cause for a search?

And if Scott denies the less intrusive methods, the cops take him to jail, get a warrant and search him.

[CosmicCowboy]

When did I say that smell alone doesn't provide probable cause for a search?

And if Scott denies the less intrusive methods, the cops take him to jail, get a warrant and search him.

Only if there is a JP on duty to issue the warrant. If they have to wait till the next morning for the warrant you may be able to beat the test by then.

[vy65]

Yes. But that came much later in the debate. And shitty lawyer was unaware of that fact when he said smell alone gives an officer probable cause. I took issue with the fact that he was standing by 'smell alone gives probable cause' yet never proved it.


The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App.1995) (noting that probable cause requires only the probability that criminal activity had occurred). Moreover, the totality of the circumstances presented here provided Officer Hatfield with sufficient evidence that Ham may have operated her vehicle while under the influence of some type of a controlled substance. See, e.g., id. Thus, because Officer Hatfield had probable cause to offer the chemical test, Ham's refusal to submit to such test constituted a violation of the Implied Consent law.

lol

[Th'Pusher]

When did I say that smell alone doesn't provide probable cause for a search?


I'm not sure "lawfully arrested" encompasses "smells like beer".


It probably doesn't. But lawfully arrested probably encompasses: smells like beer, can't walk straight, and has slurred speech.

And I think if you start with smells like beer, it's reasonable to look into whether you also have slurred speech and can't walk straight.

[vy65]

look into = search, btw

You left out the part where RG said he agreed with me

lol shitty lawyer

[Th'Pusher]

look into = search, btw

You left out the part where RG said he agreed with me

lol shitty lawyer

I agree with you too. You need more than smell alone to establish probable cause, i.e. slurred speech, etc. Glad we agree.

[vy65]

I agree with you too. You need more than smell alone to establish probable cause, i.e. slurred speech, etc. Glad we agree.


The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App.1995) (noting that probable cause requires only the probability that criminal activity had occurred). Moreover, the totality of the circumstances presented here provided Officer Hatfield with sufficient evidence that Ham may have operated her vehicle while under the influence of some type of a controlled substance. See, e.g., id. Thus, because Officer Hatfield had probable cause to offer the chemical test, Ham's refusal to submit to such test constituted a violation of the Implied Consent law.

Why is this so hard to understand?

[CosmicCowboy]

Originally Posted by Ham v. State
The fact that Ham smelled strongly of alcohol, standing alone, provided Officer Hatfield with sufficient probable cause to at least offer her a chemical test. See, e.g., Dalton, 773 N.E.2d at 334; see also Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App.1995) (noting that probable cause requires only the probability that criminal activity had occurred). Moreover, the totality of the circumstances presented here provided Officer Hatfield with sufficient evidence that Ham may have operated her vehicle while under the influence of some type of a controlled substance. See, e.g., id. Thus, because Officer Hatfield had probable cause to offer the chemical test, Ham's refusal to submit to such test constituted a violation of the Implied Consent law.

Dude, give it up. He had probable cause to OFFER the chemical test. He could not COMPEL her to take it. Yes she violated the implied consent law by refusing the test but that did not automatically mean she violated DWI laws.

[Th'Pusher]

Dude, give it up. He had probable cause to OFFER the chemical test. He could not COMPEL her to take it. Yes she violated the implied consent law by refusing the test but that did not automatically mean she violated DWI laws.

Correct. This fuckin' lawyer just likes to argue. Go figure.

[xrayzebra]

Only if there is a JP on duty to issue the warrant. If they have to wait till the next morning for the warrant you may be able to beat the test by then.


Any magistrate who is a lawyer can issue a search warrant for blood sample.
And city, (San Antonio) has Municipal Magistrates on duty 24/7.

[ElNono]

Why is this so hard to understand?

"offer" and "compel" are two different words.

EDIT: Cowboy beat me to it

[Useruser666]

fixed. I also say that you can refuse further investigation based on 5th amendment rights.

The blood draw is not "inevitable".

I mean "inevitable", as in what the officer wants to do will likely be done. Not in that it is the correct legal course of action.

[Th'Pusher]

Only the shittiest of lawyers would not understand the difference between the words offer and compel. Not to mention this shit was covered 3 pages ago.

[vy65]

I don't think that's as big a deal as people think. For starters, you can make the same argument about blood testing - i.e. - all the cop can do is offer to blood test you and if you refuse, take you to jail etc... etc... Just because you have the option to refuse does not mean probable cause is nonexistent. All it means is that you are exercising some constitutional protections.

If a cop smells booze in a car, he has probable cause to investigate further. That investigation can take the form of a chemical test. You can refuse that test (and suffer penalties under the implied consent law). But that doesn't mean the cop was unreasonable in assuming you had committed the crime of drunk driving.

[vy65]

Only the shittiest of lawyers would not understand the difference between the words offer and compel. Not to mention this shit was covered 3 pages ago.

You're a fucking retard. Just because you don't want to accept that doesn't mean I'm not being reasonable in asserting your mongoloid stupidity. Does that make more sense to you now?

[Drachen]

I don't think that's as big a deal as people think. For starters, you can make the same argument about blood testing - i.e. - all the cop can do is offer to blood test you and if you refuse, take you to jail etc... etc... Just because you have the option to refuse does not mean probable cause is nonexistent. All it means is that you are exercising some constitutional protections.

If a cop smells booze in a car, he has probable cause to investigate further. That investigation can take the form of a chemical test. You can refuse that test (and suffer penalties under the implied consent law). But that doesn't mean the cop was unreasonable in assuming you had committed the crime of drunk driving.

The whole premise of the OP was that you could not refuse the blood test. That is what started the entire damn thread.

[vy65]

What will happen if you refuse the test?

If you do not take the field sobriety test (and also refuse a roadside breath test) the officer cannot use a failed test as probable cause for an arrest.

Instead, they must decide if their “observations” amount to sufficient probable cause for an arrest. For instance, aggressive and hostile behavior, the odor of alcohol, and self-incriminating responses to questions. (This is why how you conduct yourself at a DUI traffic stop is important.)

If they decide that they do they will arrest you. However, you will be in a stronger position to fight a conviction for DUI and/or DWI than if you had been arrested for failing the test. (Remember, an arrest is not a conviction). Here’s why:

Once arrested you will be required to take a blood alcohol (BAC) test at the police station. However, your DUI lawyer can contest whether the officer’s observations did in fact provide sufficient probable cause for the arrest in the first place. If successful, the results of the BAC test will be inadmissible and your case dismissed.

http://dui-lawyer-la.com/field-sobriety-tests

So I can refuse a test - meaning that it was offered and not mandatory - but probable cause for my arrest can still exist?

[ElNono]

http://dui-lawyer-la.com/field-sobriety-tests

So I can refuse a test - meaning that it was offered and not mandatory - but probable cause for my arrest can still exist?

Yes. It's no different than refusing a search of your vehicle after a cop sees what he believes to be some weed (another controlled substance) inside the car. By seeing what he believes to be the drug, he has enough probable cause to arrest you and search your vehicle (if he so chooses).

[Th'Pusher]

You're a fucking retard. Just because you don't want to accept that doesn't mean I'm not being reasonable in asserting your mongoloid stupidity. Does that make more sense to you now?

Pull up on the throttle shitty lawyer. You're clearly in an emotional tailspin.

[vy65]

Pull up on the throttle shitty lawyer. You're clearly in an emotional tailspin.

Hey, I always laced my insults with an explanation of why you're an idiot. Given that you got nothing and aren't gargling other poster's balls, I'll take it that you're picking up your ball and going home.

Explain that whole offer/refuse thing for me again?

lol ass pusher

[vy65]

Yes. It's no different than refusing a search of your vehicle after a cop sees what he believes to be some weed (another controlled substance) inside the car. By seeing what he believes to be the drug, he has enough probable cause to arrest you and search your vehicle (if he so chooses).

So, you can refuse to consent to a search - but probable cause for a search (and maybe even an arrest) can still exist?

So if I got pulled over and a cop smelled alcohol in my car - probable cause for further searches (and my arrest) can still exist even if I refuse to be tested, etc...?

[Th'Pusher]

http://dui-lawyer-la.com/field-sobriety-tests

So I can refuse a test - meaning that it was offered and not mandatory - but probable cause for my arrest can still exist?

Yes. But is smell alone enough for probable cause? According to you, no. You need slurred speach, can't walk straight, etc.

Lol. Shitty lawyer.

[vy65]

Yes. But is smell alone enough for probable cause? According to you, no. You need slurred speach, can't walk straight, etc.

Lol. Shitty lawyer.

Are you one of those fat beaners who can't read?

I said lawfully arrested would include slurred speech, walking, etc... Not probable cause for a search. Smell of alcohol provides probable cause for further searches as to whether a driver is drunk.

I'll tell you what: get shitfaced tonight and when the cop pulls you over and smells you reaking of cheap tequilla or whatever the fuck it is you drink, try telling him he has no pc for searching you.

[ElNono]

So, you can refuse to consent to a search - but probable cause for a search (and maybe even an arrest) can still exist?

So if I got pulled over and a cop smelled alcohol in my car - probable cause for further searches (and my arrest) can still exist even if I refuse to be tested, etc...?

Yes. The problem for the cop though, is that he has to fill up the paperwork with the charge for the arrest and he exposes himself and the police station to other charges (incl. unlawful arrest).

We need to put some context on this so it's easier to visualize.
Example: Cop sees you making a sharp swerve on the road, pulls you over. Offers a DWI test, you refuse. Cop might still arrest you on reckless driving charges, at which point he might compel you to do a DWI test, and add those charges on top.

Law Enforcement is given a lot of latitude to make those determinations. Obviously, if they fuck up, it can backfire on them pretty badly too.

[vy65]

Yes. The problem for the cop though, is that he has to fill up the paperwork with the charge for the arrest and he exposes himself and the police station to other charges (incl. unlawful arrest).

We need to put some context on this so it's easier to visualize.
Example: Cop sees you making a sharp swerve on the road, pulls you over. Offers a DWI test, you refuse. Cop might still arrest you on reckless driving charges, at which point he might compel you to do a DWI test, and add those charges on top.

Law Enforcement is given a lot of latitude to make those determinations. Obviously, if they fuck up, it can backfire on them pretty badly too.

True.

My only point was to show that whole offer/compel point is wrong.

[Th'Pusher]

Are you one of those fat beaners who can't read?

I said lawfully arrested would include slurred speech, walking, etc... Not probable cause for a search. Smell of alcohol provides probable cause for further searches as to whether a driver is drunk.

I'll tell you what: get shitfaced tonight and when the cop pulls you over and smells you reaking of cheap tequilla or whatever the fuck it is you drink, try telling him he has no pc for searching you.

If all you have is the smell of alcohol, failed blood test results will be deemed inadmisable, as long as I don't have a shitty lawyer representing me.

[vy65]

If all you have is the smell of alcohol, failed blood test results will be deemed inadmisable, as long as I don't have a shitty lawyer representing me.

lol shifting goal posts. I don't even know where you're getting failed blood tests from.

The point was that a cop would have probable cause to search you if all he had was you smelling like cheap beer.

Remember this?


In a hypothetical situation where a cop pulled over someone just because they smelled like alcohol, I'd still say that the smell would show the cop had p-c.

[Th'Pusher]

lol shifting goal posts. I don't even know where you're getting failed blood tests from.

The point was that a cop would have probable cause to search you if all he had was you smelling like cheap beer.

Remember this?

I am saying he would not have probable cause and if you chose to arrest me because I refused to take the field tests, his smell of alcohol p-c would not stand up in court.

[ElNono]

My only point was to show that whole offer/compel point is wrong.

Well, it really isn't. The cop can only compel you after he moved to arrest. Meaning, he's now putting his neck on the line.

He has nothing on the line by just offering.

[vy65]

I am saying he would not have probable cause and if you chose to arrest me because I refused to take the field tests, his smell of alcohol p-c would not stand up in court.

But the smell alone would give him a reason to search you and your car, right?

[vy65]

"offer" and "compel" are two different words.

EDIT: Cowboy beat me to it

I'm just trying to figure out what this meant.

[ElNono]

But the smell alone would give him a reason to search you and your car, right?

Not without arresting you first.

[Th'Pusher]

Not without arresting you first.

No. But he is free to ask me if I want to incriminate myself. I'll refuse. If he arrests me he better have more than just the smell of alcohol.

Edit meant to quote vy

[vy65]

Maybe, I don't know that for sure. But whether or not you're arrested is irrelevant to whether the cop would or would not have probable cause to search you.

[ElNono]

I'm just trying to figure out what this meant.

That the OP talks about mandatory (compel) blood tests, while the case you quoted talked about the officer offering a test.

[ElNono]

Maybe, I don't know that for sure. But whether or not you're arrested is irrelevant to whether the cop would or would not have probable cause to search you.

It's not irrelevant. He has to arrest you. Otherwise he would be violating the 4th.

[ElNono]

tbh, I wish a LE guy would comment if there's one. IIRC there's certain rules they need to follow, and the arrest is one of them. I don't really remember the details.

[vy65]

That the OP talks about mandatory (compel) blood tests, while the case you quoted talked about the officer offering a test.

I tried clarifying this, but I guess it didn't take.

I wasn't talking about smell alone justifying the blood test.

I was saying that smell alone would give a cop probable cause to conduct more (reasonable) searches for evidence of DWI.

And I was saying that a blood test (while supported by the pc a cop has in smell) probably wouldn't be reasonable as it was too invasive a search. In other words, while smell probably would give the probable cause part - a blood test still would fail because it wouldn't meet the reasonable part of the fourth amendment test.

Everyone flamed me for this and said some shit about the case I quoted (which pretty plainly says smell alone gives a cop probable cause to conduct more searches) only said "offer" and not "compel" and therefore probable cause for more searches does not exist.

So I'm confused. I said smell alone would give a cop probable cause to search for more evidence. I found a case saying the same thing. And apparently I'm wrong?

[vy65]

It's not irrelevant. He has to arrest you. Otherwise he would be violating the 4th.

In general, its relevant.

As to whether or not a police officer has probable cause to search you - whether he has evidence showing that there is a reasonable likelihood that a crime has been committed - I don't see what relevance your arrest would have.

[ElNono]

I was saying that smell alone would give a cop probable cause to conduct more (reasonable) searches for evidence of DWI.

I don't think so. Not without a warrant. And the cop needs to arrest you in order to obtain it (otherwise he has to let you go).

[ElNono]

As to whether or not a police officer has probable cause to search you - whether he has evidence showing that there is a reasonable likelihood that a crime has been committed - I don't see what relevance your arrest would have.

It's a warrant that "shall issue upon probable cause". If he doesn't arrest me, he has to go find me after he gets the warrant. Very unlikely on a DWI case.

[vy65]

Those cases I found say that smell alone gives the cops pc.

The case doesn't say smell gives probable cause to force a test on the driver. So what? You can refuse any of those tests on constitutional grounds.

And we're not talking about blood testing here btw.

[vy65]

It's a warrant that "shall issue upon probable cause". If he doesn't arrest me, he has to go find me after he gets the warrant. Very unlikely on a DWI case.

You're right when it comes to arrest.

I'm speaking to the search.

The police need probable cause to search for evidence of a crime. That's not the same as the probable cause they need to execute an arrest.

[ElNono]

You're right when it comes to arrest.

I'm speaking to the search.

The police need probable cause to search for evidence of a crime. That's not the same as the probable cause they need to execute an arrest.

Actually, it's the exact same one, and it's defined by the 4th amendment. It's search and seizure. The arrest falling in the "seizure" category.

[ElNono]

What people need to remember here is that we've given law enforcement the ability to suspend our constitutional rights (like freedom), but under a very specific set of rules and circumstances.

[ElNono]

And the other thing to remember is that cops deal with this shit every day, and thus know every trick in the book. So, if you're not a lawyer, don't fuck around.

[Th'Pusher]

Actually, it's the exact same one, and it's defined by the 4th amendment. It's search and seizure. The arrest falling in the "seizure" category.

At this point, I think you have to call into question whether or not this guy is even a lawyer. Not that he has to specialize in constitutional law, but you don't make it out of law schools without a decent grasp of the 4th amendment.

I'll be changing my designation for vy from shitty lawyer to shitty fake internet lawyer.

[ElNono]

Disclaimer: I'm not a lawyer myself

[Th'Pusher]

Disclaimer: I'm not a lawyer myself

Yeah, the fake shitty internet lawyer is being schooled in law by a layman. That's a problem if he is a lawyer, at least for his clients.

[vy65]

Lol why is this guy so mad? Did you not get into law school and are bitter about it?

The standard isn't the same. Probable cause for an arrest warrant requires a reasonable suspicion the arrestee has committed a crime. Probable cause for a search warrant requires a reasonable suspicion that evidence will be found in the area to be searched.

[ElNono]

Yeah, the fake shitty internet lawyer is being schooled in law by a layman. That's a problem if he is a lawyer, at least for his clients.

tbh, I do my good amount of reading on legaleses in general.

Also, in vy's defense, this topic isn't as clear cut as you would think it is. What we're talking about here is mostly academic, thus my warning about fucking around with cops if you can't back it up with a good shark.

[Th'Pusher]

Lol why is this guy so mad? Did you not get into law school and are bitter about it?

The standard isn't the same. Probable cause for an arrest warrant requires a reasonable suspicion the arrestee has committed a crime. Probable cause for a search warrant requires a reasonable suspicion that evidence will be found in the area to be searched.

I'm mad? You're the one who is in an emotional tailspin lashing out in fits of rage. My point has always been that the smell of alcohol alone is not probable cause for an arrest and that if a cop were to arrest you on those grounds alone the evidence would not stand up in court.

[vy65]

I'm mad? You're the one who is in an emotional tailspin lashing out in fits of rage. My point has always been that the smell of alcohol alone is not probable cause for an arrest and that if a cop were to arrest you on those grounds alone the evidence would not stand up in court.

And if you knew the difference between the words arrest and search, you'd realize I never disagreed with you.

[Th'Pusher]

tbh, I do my good amount of reading on legaleses in general.

Also, in vy's defense, this topic isn't as clear cut as you would think it is. What we're talking about here is mostly academic, thus my warning about fucking around with cops if you can't back it up with a good shark.

I get that. Our constitutional rights are being eroded little by little in a labyrinth of cases with each one serving as precedent to chip a little deeper. 9-11 has amplified this.

[vy65]

But I'm really flattered that you've come up with a couple pet names for me.

[Th'Pusher]

And if you knew the difference between the words arrest and search, you'd realize I never disagreed with you.

I don't see that distinction


In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered.

http://en.wikipedia.org/wiki/Probable_cause

[vy65]

If a cop smells booze, he has a reasonable suspicion that there could be more evidence that a driver is drunk and would be justified in administering tests to collect evidence. But the cop couldn't arrest the guy outright because he wouldn't have a reasonable suspicion that te driver committed the crime.

The standard, i.e. reasonable suspicion is the same. But arrests and searches are different. One requires reasonable suspicion the guy has committed a crime. The other requires that the guy has evidence on him/in his car/etc

Hope that clears it up for you sugarpuss

[ElNono]

There is a distinction between arrest and search. For example, a traffic stop is considered a seizure, but not an arrest. Obviously, a formal arrest includes a seizure.

[ElNono]

If a cop smells booze, he has a reasonable suspicion that there could be more evidence that a driver is drunk and would be justified in administering tests to collect evidence

This isn't correct.

And I did remember why the arrest is necessary. Considering that the person refuses the search to be carried out, the only way the cop can compel the person to carry the search is by depriving him from his liberty, a process that's done through arrest.

[vy65]

Why isn't that right?

[ElNono]

Here's FWD.... I'll slowly crawl back to my cave...

[ElNono]

Why isn't that right?

Let me rephrase that. If by administering you mean compel (that is, the person can't refuse), then that isn't right. A test is invasive of personal privacy.

[vy65]

No. What I mean by administer is request the driver to take a fst, breathalyzer, etc...

If they refuse, the cop would have to get a warrant from a judge or search the guy and show that the search fell within one of the exceptions to having a warrant (ie transient evidence).

The fact that the cop smelled booze in the car would give pc for the search, ie the warrant.

[ElNono]

No. What I mean by administer is request the driver to take a fst, breathalyzer, etc...

If they refuse, the cop would have to get a warrant from a judge or search the guy and show that the search fell within one of the exceptions to having a warrant (ie transient evidence).

The fact that the cop smelled booze in the car would give pc for the search, ie the warrant.

That we agree with :tu

The thing is, the cop can't pull a gun to the guy's head if he doesn't want to submit to the search. That's why the arrest has to happen.

[ElNono]

BTW, FromWayDowntown might not feel like commenting, but I would certainly appreciate the input. :tu

[Th'Pusher]

tbh, I do my good amount of reading on legaleses in general.

Also, in vy's defense, this topic isn't as clear cut as you would think it is. What we're talking about here is mostly academic, thus my warning about fucking around with cops if you can't back it up with a good shark.

El, if you're interested in this stuff, I recommend the book 'The Rights of the People' by David K. Shipler. He's does a good job of looking at how our rights have be expanded and eroded from a historical perspective.

[vy65]

So then we agree that the smell of alcohol provides pc for a search - ie - a search warrant could issue solely on the basis that an officer smelled alcohol in a car?

And yes I know that it would never happen in reality/this is academic, but I'm trying to make a point here.

[vy65]

Th'pusher, where you at my nigga?

[ElNono]

El, if you're interested in this stuff, I recommend the book 'The Rights of the People' by David K. Shipler. He's does a good job of looking at how our rights have be expanded and eroded from a historical perspective.

Thanks.

vy will tell you I'm always interested in legalese, specifically when it comes to rights. We had these discussions before. I try to catch up with case law whenever possible.

[Th'Pusher]

No. What I mean by administer is request the driver to take a fst, breathalyzer, etc...

If they refuse, the cop would have to get a warrant from a judge or search the guy and show that the search fell within one of the exceptions to having a warrant (ie transient evidence).

The fact that the cop smelled booze in the car would give pc for the search, ie the warrant.

I agree with this. But, I don't think he needs probable cause to ask you to take a breathalyzer test. This is where offer/compel becomes relevant. He's just asking you if you'll take one. Does he need probable cause to ask you to voluntarily take a breathalyzer?

[vy65]

So why did you get so mad?

[ElNono]

So then we agree that the smell of alcohol provides pc for a search - ie - a search warrant could issue solely on the basis that an officer smelled alcohol in a car?

And yes I know that it would never happen in reality/this is academic, but I'm trying to make a point here.

It's tricky because if you lock yourself in your car in private property and get drunk, but you're not driving, I'm not sure a crime was committed.

Even if you're driving and you're transporting a drunk passenger, that's not necessarily a crime either, and I doubt in that case a search warrant would issue either.

I would think it's in the case where the cop thinks the driver is actually drunk, and the driver refuses the test, then he could move to arrest him and charge him with DWI, and then he can conduct all the searches he wants.

[Th'Pusher]

So why did you get so mad?

I'm not mad. Again, you were the one lashing out calling me a moron and an idiot. I was just asking you to back up your claim that the smell of alcohol alone constitutes probable cause. The only case you cited where the smell of alcohol was the single factor, the suspect was arrested for violating the implied consent law.

[vy65]

I'm not mad. Again, you were the one lashing out calling me a moron and an idiot. I was just asking you to back up your claim that the smell of alcohol alone constitutes probable cause. The only case you cited where the smell of alcohol was the single factor, the suspect was arrested for violating the implied consent law.

And I called you an idiot for not understanding the difference between a search and an arrest. My argument never was a cop could arrest someone for smelling like booze, even though literally everyone tried pigeon-holing me into that position.

My point was the smell of booze is sufficient to meet te probable cause standard for a search - ie - that a cop would have be reasonable in believing there was more evidence of drunkenness on the driver.

Just because pc for a search exists doesn't mean te driver automatically gets arrested. It means LE would be justified in searching the guy for more evidence if the requisite formalities are met.

[vy65]

It's tricky because if you lock yourself in your car in private property and get drunk, but you're not driving, I'm not sure a crime was committed.

Even if you're driving and you're transporting a drunk passenger, that's not necessarily a crime either, and I doubt in that case a search warrant would issue either.

I would think it's in the case where the cop thinks the driver is actually drunk, and the driver refuses the test, then he could move to arrest him and charge him with DWI, and then he can conduct all the searches he wants.

While interesting/funny, that wasn't the hypothetical. The hypo was: guy gets pulled over and smells of booze. Is it reasonable to believe there is evidence of DWI on the guy/in the car.

This thread should have been about whether it's reasonable to believe that. Not the shit show it devolved into.

[ElNono]

While interesting/funny, that wasn't the hypothetical. The hypo was: guy gets pulled over and smells of booze. Is it reasonable to believe there is evidence of DWI on the guy/in the car.

This thread should have been about whether it's reasonable to believe that. Not the shit show it devolved into.

Meh, I've been pretty tame on the topic because I already know this isn't clear cut. Stated as much, and knew this would turn into this turd.

[Th'Pusher]

And I called you an idiot for not understanding the difference between a search and an arrest. My argument never was a cop could arrest someone for smelling like booze, even though literally everyone tried pigeon-holing me into that position.

My point was the smell of booze is sufficient to meet te probable cause standard for a search - ie - that a cop would have be reasonable in believing there was more evidence of drunkenness on the driver.

Just because pc for a search exists doesn't mean te driver automatically gets arrested. It means LE would be justified in searching the guy for more evidence if the requisite formalities are met.

I understand the difference between search and arrest. I think you are conflating probable cause to arrest with reasonable suspicion to detain you to investigate, but that's already been covered.

[CosmicCowboy]

:lmao

I can't believe you guys are still beating this one up.