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Can't say I'm as up on vascular law as I used to be.
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.......
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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 Cons ution.”
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Read more: http://www.mysanantonio.com/news/loc...#ixzz1bnwwN0MJ
Can't say I'm as up on vascular law as I used to be.
It seems pretty dubious.
IMO that's torture.
wouldn't it be cheaper to just waterboard those mofos
but that's NOT torture.
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 cons utional.
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. , please correct me if my understanding is incorrect.
lol torture
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/
thx. the courts may not have had their last word on this.
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?
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 , here's a court order allowing us to take your blood without your consent."
I found this: The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and cir stances 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.
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?
But officer, I sped up to get away from that car that was throwing open beers into my driver's side window.
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 uncons utional.
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?)
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.
Don't cops carry those hand held breathalyzers? I don't have an issue with it really.
Haven't seen anything about that mentioned, but I'd assume they'd still need to have a JP on call.
Sure looks to me like no-refusal allows this very thing.
I would hope so, but we'll have to wait and see.That is very obviously uncons utional.
You can refuse the breathalyzer test.
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.Haven't seen anything about that mentioned, but I'd assume they'd still need to have a JP on call.
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.
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?
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?
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