Is mandatory blood draws for DWI suspects uncons utional?

[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 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) [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 su ion 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 bull .

I will NOT EVER voluntarily submit to that again.

[RandomGuy]

edit nvm

Accountant 1, Lawyer 0.

[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.

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 su ion 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 bull .

I will NOT EVER voluntarily submit to that 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.



I think any good lawyer could have beaten that.

[RandomGuy]

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

Ow.

[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 uncons utional.

[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.



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 uncons utional.

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, pe ioner'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 pe ioner 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 uncons utional.

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 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 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 su ion 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 bull .

I will NOT EVER voluntarily submit to that 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 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 ty 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 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.