Is mandatory blood draws for DWI suspects uncons utional?

[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 ty layer tbh.

[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 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.

"in some cases"

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

I wonder what those cir stances 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.

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?

[ElNono]

[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 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.

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.

[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 ty 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?