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But 1, 2, and 3 are arbitrary boundries which I would think are all uncons utional.
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 like that?
But 1, 2, and 3 are arbitrary boundries which I would think are all uncons utional.
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.
Last edited by RandomGuy; 10-25-2011 at 12:32 PM. Reason: added a few bolds for emphasis
What's the difference between "probable cause" and "definite cause for further investigation?"
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)
Probable cause gets you a warrant, cause for further investigation does not.
Am I wrong?
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 cons utionally.
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?
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).
Yes. Probable Cause allows a cop to investigate further. Remember this?
No, actually they don't.
You do understand the difference between the words "offer" and "compel"?
lol shifting goalposts
Regardless of the law, if a mother er 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 bull .
How exactly COULD that ever fly cons utionally? The day this goes into effect is the day the precedent is set that they can just do whatever the they want.
"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]
lol lawyer who can't support his theory
How do you "further investigate" a DWI if not by administering tests that criminal defendant's object too on fourth amendment grounds?
Whether or not it is cons utional is what we are trying to define, with varying degrees of success.
That is kinda the point, that we think (though we are obviously not lawyers) that it cannot fly cons utionally (without a warrant).
where's From Way Downtown when you need him?
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) 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)[/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.
If you're thinking about whether or not it's cons utional, look no further than the 4th amendment. But in many cases these cops use all kinds of loopholes and bull to do things outside the law, just like how they have been arresting people and tagging with them with those bull "wiretapping" charges for filming police which the courts have been throwing out and already ruled against. , 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?
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.
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.
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