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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?
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 off because he only pulled me over for speeding.
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 drunks. Get a taxi you irresponsible bag.
"The smell of alcohol [alone] gives probable cause"
Link?
Case?
i guess they'd just have to issue a warrant for assault on a police officer before they draw my blood
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.
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?
And here's a case: State v. Greyeyes 734 P.2d 789
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.
http://scholar.google.com/scholar_ca...=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.
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.
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.
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.
The smell of alcohol alone gives a cop probable cause. With that, a cop can collect more evidence.
You would be a uva 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 cons utes "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.
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 ing bull and a huge violation of my rights over my own body.
first TSA sticking their hands down your pants, now mandatory blood tests, what's next mandatory butthole fingering?
(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 Cons ution 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.
The difference being that 100% of pot possesion is illegal.
More failed analogies.
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 uncons utional. This seems to be skirting that boundary.
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.
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.
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).
lol pissy
(a) Reasonable, articulable su ion 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 su ion 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)
You're not getting it. Reread what I wrote.
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.
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