Is mandatory blood draws for DWI suspects uncons utional?

[Th'Pusher]

lol

Where'd you draw that distinction?

That's been his point all along and he's pointed it out multiple times. You really are a pretty ty lawyer.

[vy65]

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.

I can quote too:

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 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.

Just because the police have probable cause doesn't mean any and all searches are reasonable. The fourth amendment speaks to reasonable searches supported by probable cause. When I originally answered your question of whether smell alone gave the police probable cause to believe a crime had been committed, I did not then say the cops could then draw the drivers blood to see the BAC. I said that they have probable cause to investigate further - i.e. conducting a field sobriety test, etc...

[vy65]

That's been his point all along and he's pointed it out multiple times. You really are a pretty ty lawyer.

Where'd I say that smelling alcohol alone allows the cops to administer a blood test?

You might want to stop gargling RG's balls and show me how ty I am.

[Th'Pusher]

I can quote too:





Just because the police have probable cause doesn't mean any and all searches are reasonable. The fourth amendment speaks to reasonable searches supported by probable cause. When I originally answered your question of whether smell alone gave the police probable cause to believe a crime had been committed, I did not then say the cops could then draw the drivers blood to see the BAC. I said that they have probable cause to investigate further - i.e. conducting a field sobriety test, etc...

You just don't read. Look at his first ing post:

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.

[vy65]

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?

That's never been the point. I never said smell automatically gets you to the blood test. I said that smell alone gives you probable cause which allows you to conduct other tests. I gave you 4 cases that held this exact point.

Why is this so hard for you to understand?

[vy65]

You just don't read. Look at his first ing post:

I was never responding to that point. He asked me if smell alone could provide probable cause. The answer to that is yes. But just because the answer is yes doesn't mean you get to administer a blood test.

Gargle his balls some more you ing idiot.

[Wild Cobra]

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.

Oregon has been doing this for at least a decade. I'm pretty sure they get away with it because driving is considered a privilege rather than a right.

[Th'Pusher]

Where'd I say that smelling alcohol alone allows the cops to administer a blood test?

You might want to stop gargling RG's balls and show me how ty I am.

No ball gargling. It was pretty obvious his point all along as he spelled it out blatantly in his first post and asked for the resident layers to chime in. You did, but took a defensive position from the beginning and didn't bother to answer his post.

Everyone seemed to be following along but you. No ability to comprehend = ty lawyer in my estimation.

[vy65]

No ball gargling. It was pretty obvious his point all along as he spelled it out blatantly in his first post and asked for the resident layers to chime in. You did, but took a defensive position from the beginning and didn't bother to answer his post.

Everyone seemed to be following along but you. No ability to comprehend = ty lawyer in my estimation.

It was pretty obvious that he asked me a question and I answered with case law. Just because your mongoloid brain can't comprehend the distinction doesn't make me a ty lawyer. It just makes you a ing re .

[CosmicCowboy]

Oregon has been doing this for at least a decade. I'm pretty sure they get away with it because driving is considered a privilege rather than a right.

They can take your license away for not submitting to the test ( the driving privilege you speak of) but they can't force you to take the test without a warrant.

[Wild Cobra]

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?

The smell of wert is not the same as the smell of alcohol.

You should know that.

[Wild Cobra]

They can take your license away for not submitting to the test ( the driving privilege you speak of) but they can't force you to take the test without a warrant.

This is true. There is that difference.

[Th'Pusher]

I was never responding to that point. He asked me if smell alone could provide probable cause. The answer to that is yes. But just because the answer is yes doesn't mean you get to administer a blood test.

Gargle his balls some more you ing idiot.

I don't think you have sufficiently proven the answer is yes. If you need probable cause to administer the blood test and smell alone is probable cause, why wouldn't you be able to administer the blood test?

[RandomGuy]

I was never responding to that point. He asked me if smell alone could provide probable cause. The answer to that is yes. But just because the answer is yes doesn't mean you get to administer a blood test.

Gargle his balls some more you ing idiot.

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?

more than justifies the test[/B].

So when I asked you about a forced blood draw, and you responded yes, "the test" is justified based on the smell, you weren't talking about a "forced blood draw", but some other test?

[vy65]

I don't think you have sufficiently proven the answer is yes. If you need probable cause to administer the blood test and smell alone is probable cause, why wouldn't you be able to administer the blood test?

This is my fault for assuming that you all understand that you don't have any reason to know.

A police officer needs probable cause to conduct a search. Probable cause just means that a cop has to reasonably believe that a crime has been committed. Once a cop has probable cause, his search still has to comply with the fourth amendment - it has to be reasonable.

RG asked me whether smell alone supports a police officer's assertion that he has probable cause to do a search. The answer to that question is yes (I think it's reasonable to assume that someone who smells like alcohol could be drunk, and the cases I've cited support that). That's all I have been arguing this entire time

But just because a police officer has probable cause to conduct a search doesn't mean all searches are now available. The cop's search has to be reasonable. It probably isn't reasonable to conduct a blood test based off smell alone because that is a highly invasive procedure. That has been RG's point.

You all think I've been saying smell alone gives the cops a basis for drawing blood. I have never said that. All I said was that smell alone gives the cops probable cause to investigate further. That investigation still has to be reasonable.

If you took the time to read what people say instead of calling them ty you might have realized this. But then again, I shouldn't expect much from someone with a screename for all the times they've taken it up the ass.

[RandomGuy]

When I say "probable cause" I mean it in the legal sense:

The probable cause standard is more important in Criminal Law than it is in Civil Law because it is used in criminal law as a basis for searching and arresting persons and depriving them of their liberty.

http://legal-dictionary.thefreedicti...probable+cause

"probable cause" is used as the justification for a warrant, and in this case a blood draw, presumedly with a warrant.

You don't need probable cause to apply non-warrant actions, such as asking people questions, which they can decline, based on their 5th amendment rights.

Police may briefly detain and conduct a limited search of a person in a public place if they have a reasonable su ion that the person has committed a crime. Reasonable su ion is a level of belief that is less than probable cause. A police officer possesses reasonable su ion if he has enough knowledge to lead a reasonably cautious person to believe that criminal activity is occurring and that the individual played some part in it. In practice this requirement means that an officer need not possess the measure of knowledge that cons utes probable cause to Stop and Frisk a person in a public place. In any case, an officer may not arrest a person until the officer possesses probable cause to believe that the person has committed a crime.

[vy65]

So when I asked you about a forced blood draw, and you responded yes, "the test" is justified based on the smell, you weren't talking about a "forced blood draw", but some other test?

We weren't talking about smell alone at that point.

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.

But when I wrote that, I wasn't thinking about blood testing - I was thinking FST or breathalyzer. Looking back over it, I can see how you'd be confused.

[RandomGuy]

RG asked me whether smell alone supports a police officer's assertion that he has probable cause to do a search. The answer to that question is yes (I think it's reasonable to assume that someone who smells like alcohol could be drunk, and the cases I've cited support that)

Nothing in the case law said that smell alone was cause for a search.

They all used that as a basis to continue investigating.

Still can't figure that one out?

[vy65]

Nothing in the case law said that smell alone was cause for a search.

They all used that as a basis to continue investigating.

Still can't figure that one out?

Why do you think the tests administered in those cases aren't searches?

[RandomGuy]

We weren't talking about smell alone at that point.



But when I wrote that, I wasn't thinking about blood testing - I was thinking FST or breathalyzer. Looking back over it, I can see how you'd be confused.

I think you have confused "reasonable su ion" and "probable cause".

[vy65]

And before you go off on some irrelevant tangent about offer/compel - reread those cases and focus on the implied consent law, ok?

[RandomGuy]

Why do you think the tests administered in those cases aren't searches?

Field sobriety tests and answering the question "have you been drinking" are not searches because they are optional. You don't have to submit to them. (5th amendment)

[Th'Pusher]

This is my fault for assuming that you all understand that you don't have any reason to know.

A police officer needs probable cause to conduct a search. Probable cause just means that a cop has to reasonably believe that a crime has been committed. Once a cop has probable cause, his search still has to comply with the fourth amendment - it has to be reasonable.

RG asked me whether smell alone supports a police officer's assertion that he has probable cause to do a search. The answer to that question is yes (I think it's reasonable to assume that someone who smells like alcohol could be drunk, and the cases I've cited support that). That's all I have been arguing this entire time

But just because a police officer has probable cause to conduct a search doesn't mean all searches are now available. The cop's search has to be reasonable. It probably isn't reasonable to conduct a blood test based off smell alone because that is a highly invasive procedure. That has been RG's point.

You all think I've been saying smell alone gives the cops a basis for drawing blood. I have never said that. All I said was that smell alone gives the cops probable cause to investigate further. That investigation still has to be reasonable.

If you took the time to read what people say instead of calling them ty you might have realized this. But then again, I shouldn't expect much from someone with a screename for all the times they've taken it up the ass.

No. A cop always has the authority to further investigate regardless of whether or not he has probable cause. Often, he is able to get probable cause through further investigation which was RG's point. Don't give them probable cause. As soon as you say the officer has probable cause to search, that means search his car, his blood, whatever.

[vy65]

Field sobriety tests and answering the question "have you been drinking" are not searches because they are optional. You don't have to submit to them. (5th amendment)

The cases involved chemical tests - not FSTs.

[vy65]

No. A cop always has the authority to further investigate regardless of whether or not he has probable cause. Often, he is able to get probable cause through further investigation which was RG's point. Don't give them probable cause. As soon as you say the officer has probable cause to search, that means search his car, his blood, whatever.

That's wholly irrelevant to what we've been debating.