Is mandatory blood draws for DWI suspects uncons utional?

[Th'Pusher]

Dude, give it up. He had probable cause to OFFER the chemical test. He could not COMPEL her to take it. Yes she violated the implied consent law by refusing the test but that did not automatically mean she violated DWI laws.

Correct. This in' lawyer just likes to argue. Go figure.

[xrayzebra]

Only if there is a JP on duty to issue the warrant. If they have to wait till the next morning for the warrant you may be able to beat the test by then.

Any magistrate who is a lawyer can issue a search warrant for blood sample.
And city, (San Antonio) has Municipal Magistrates on duty 24/7.

[ElNono]

Why is this so hard to understand?

"offer" and "compel" are two different words.

EDIT: Cowboy beat me to it

[Useruser666]

fixed. I also say that you can refuse further investigation based on 5th amendment rights.

The blood draw is not "inevitable".

I mean "inevitable", as in what the officer wants to do will likely be done. Not in that it is the correct legal course of action.

[Th'Pusher]

Only the tiest of lawyers would not understand the difference between the words offer and compel. Not to mention this was covered 3 pages ago.

[vy65]

I don't think that's as big a deal as people think. For starters, you can make the same argument about blood testing - i.e. - all the cop can do is offer to blood test you and if you refuse, take you to jail etc... etc... Just because you have the option to refuse does not mean probable cause is nonexistent. All it means is that you are exercising some cons utional protections.

If a cop smells booze in a car, he has probable cause to investigate further. That investigation can take the form of a chemical test. You can refuse that test (and suffer penalties under the implied consent law). But that doesn't mean the cop was unreasonable in assuming you had committed the crime of drunk driving.

[vy65]

Only the tiest of lawyers would not understand the difference between the words offer and compel. Not to mention this was covered 3 pages ago.

You're a ing re . Just because you don't want to accept that doesn't mean I'm not being reasonable in asserting your mongoloid stupidity. Does that make more sense to you now?

[Drachen]

I don't think that's as big a deal as people think. For starters, you can make the same argument about blood testing - i.e. - all the cop can do is offer to blood test you and if you refuse, take you to jail etc... etc... Just because you have the option to refuse does not mean probable cause is nonexistent. All it means is that you are exercising some cons utional protections.

If a cop smells booze in a car, he has probable cause to investigate further. That investigation can take the form of a chemical test. You can refuse that test (and suffer penalties under the implied consent law). But that doesn't mean the cop was unreasonable in assuming you had committed the crime of drunk driving.

The whole premise of the OP was that you could not refuse the blood test. That is what started the entire damn thread.

[vy65]

What will happen if you refuse the test?

If you do not take the field sobriety test (and also refuse a roadside breath test) the officer cannot use a failed test as probable cause for an arrest.

Instead, they must decide if their “observations” amount to sufficient probable cause for an arrest. For instance, aggressive and hostile behavior, the odor of alcohol, and self-incriminating responses to questions. (This is why how you conduct yourself at a DUI traffic stop is important.)

If they decide that they do they will arrest you. However, you will be in a stronger position to fight a conviction for DUI and/or DWI than if you had been arrested for failing the test. (Remember, an arrest is not a conviction). Here’s why:

Once arrested you will be required to take a blood alcohol (BAC) test at the police station. However, your DUI lawyer can contest whether the officer’s observations did in fact provide sufficient probable cause for the arrest in the first place. If successful, the results of the BAC test will be inadmissible and your case dismissed.

http://dui-lawyer-la.com/field-sobriety-tests

So I can refuse a test - meaning that it was offered and not mandatory - but probable cause for my arrest can still exist?

[ElNono]

http://dui-lawyer-la.com/field-sobriety-tests

So I can refuse a test - meaning that it was offered and not mandatory - but probable cause for my arrest can still exist?

Yes. It's no different than refusing a search of your vehicle after a cop sees what he believes to be some weed (another controlled substance) inside the car. By seeing what he believes to be the drug, he has enough probable cause to arrest you and search your vehicle (if he so chooses).

[Th'Pusher]

You're a ing re . Just because you don't want to accept that doesn't mean I'm not being reasonable in asserting your mongoloid stupidity. Does that make more sense to you now?

Pull up on the throttle ty lawyer. You're clearly in an emotional tailspin.

[vy65]

Pull up on the throttle ty lawyer. You're clearly in an emotional tailspin.

Hey, I always laced my insults with an explanation of why you're an idiot. Given that you got nothing and aren't gargling other poster's balls, I'll take it that you're picking up your ball and going home.

Explain that whole offer/refuse thing for me again?

lol ass pusher

[vy65]

Yes. It's no different than refusing a search of your vehicle after a cop sees what he believes to be some weed (another controlled substance) inside the car. By seeing what he believes to be the drug, he has enough probable cause to arrest you and search your vehicle (if he so chooses).

So, you can refuse to consent to a search - but probable cause for a search (and maybe even an arrest) can still exist?

So if I got pulled over and a cop smelled alcohol in my car - probable cause for further searches (and my arrest) can still exist even if I refuse to be tested, etc...?

[Th'Pusher]

http://dui-lawyer-la.com/field-sobriety-tests

So I can refuse a test - meaning that it was offered and not mandatory - but probable cause for my arrest can still exist?

Yes. But is smell alone enough for probable cause? According to you, no. You need slurred speach, can't walk straight, etc.

Lol. ty lawyer.

[vy65]

Yes. But is smell alone enough for probable cause? According to you, no. You need slurred speach, can't walk straight, etc.

Lol. ty lawyer.

Are you one of those fat s who can't read?

I said lawfully arrested would include slurred speech, walking, etc... Not probable cause for a search. Smell of alcohol provides probable cause for further searches as to whether a driver is drunk.

I'll tell you what: get faced tonight and when the cop pulls you over and smells you reaking of cheap tequilla or whatever the it is you drink, try telling him he has no pc for searching you.

[ElNono]

So, you can refuse to consent to a search - but probable cause for a search (and maybe even an arrest) can still exist?

So if I got pulled over and a cop smelled alcohol in my car - probable cause for further searches (and my arrest) can still exist even if I refuse to be tested, etc...?

Yes. The problem for the cop though, is that he has to fill up the paperwork with the charge for the arrest and he exposes himself and the police station to other charges (incl. unlawful arrest).

We need to put some context on this so it's easier to visualize.
Example: Cop sees you making a sharp swerve on the road, pulls you over. Offers a DWI test, you refuse. Cop might still arrest you on reckless driving charges, at which point he might compel you to do a DWI test, and add those charges on top.

Law Enforcement is given a lot of la ude to make those determinations. Obviously, if they up, it can backfire on them pretty badly too.

[vy65]

Yes. The problem for the cop though, is that he has to fill up the paperwork with the charge for the arrest and he exposes himself and the police station to other charges (incl. unlawful arrest).

We need to put some context on this so it's easier to visualize.
Example: Cop sees you making a sharp swerve on the road, pulls you over. Offers a DWI test, you refuse. Cop might still arrest you on reckless driving charges, at which point he might compel you to do a DWI test, and add those charges on top.

Law Enforcement is given a lot of la ude to make those determinations. Obviously, if they up, it can backfire on them pretty badly too.

True.

My only point was to show that whole offer/compel point is wrong.

[Th'Pusher]

Are you one of those fat s who can't read?

I said lawfully arrested would include slurred speech, walking, etc... Not probable cause for a search. Smell of alcohol provides probable cause for further searches as to whether a driver is drunk.

I'll tell you what: get faced tonight and when the cop pulls you over and smells you reaking of cheap tequilla or whatever the it is you drink, try telling him he has no pc for searching you.

If all you have is the smell of alcohol, failed blood test results will be deemed inadmisable, as long as I don't have a ty lawyer representing me.

[vy65]

If all you have is the smell of alcohol, failed blood test results will be deemed inadmisable, as long as I don't have a ty lawyer representing me.

lol shifting goal posts. I don't even know where you're getting failed blood tests from.

The point was that a cop would have probable cause to search you if all he had was you smelling like cheap beer.

Remember this?

In a hypothetical situation where a cop pulled over someone just because they smelled like alcohol, I'd still say that the smell would show the cop had p-c.

[Th'Pusher]

lol shifting goal posts. I don't even know where you're getting failed blood tests from.

The point was that a cop would have probable cause to search you if all he had was you smelling like cheap beer.

Remember this?

I am saying he would not have probable cause and if you chose to arrest me because I refused to take the field tests, his smell of alcohol p-c would not stand up in court.

[ElNono]

My only point was to show that whole offer/compel point is wrong.

Well, it really isn't. The cop can only compel you after he moved to arrest. Meaning, he's now putting his neck on the line.

He has nothing on the line by just offering.

[vy65]

I am saying he would not have probable cause and if you chose to arrest me because I refused to take the field tests, his smell of alcohol p-c would not stand up in court.

But the smell alone would give him a reason to search you and your car, right?

[vy65]

"offer" and "compel" are two different words.

EDIT: Cowboy beat me to it

I'm just trying to figure out what this meant.

[ElNono]

But the smell alone would give him a reason to search you and your car, right?

Not without arresting you first.

[Th'Pusher]

Not without arresting you first.

No. But he is free to ask me if I want to incriminate myself. I'll refuse. If he arrests me he better have more than just the smell of alcohol.

Edit meant to quote vy