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That the OP talks about mandatory (compel) blood tests, while the case you quoted talked about the officer offering a test.
Maybe, I don't know that for sure. But whether or not you're arrested is irrelevant to whether the cop would or would not have probable cause to search you.
That the OP talks about mandatory (compel) blood tests, while the case you quoted talked about the officer offering a test.
It's not irrelevant. He has to arrest you. Otherwise he would be violating the 4th.
tbh, I wish a LE guy would comment if there's one. IIRC there's certain rules they need to follow, and the arrest is one of them. I don't really remember the details.
I tried clarifying this, but I guess it didn't take.
I wasn't talking about smell alone justifying the blood test.
I was saying that smell alone would give a cop probable cause to conduct more (reasonable) searches for evidence of DWI.
And I was saying that a blood test (while supported by the pc a cop has in smell) probably wouldn't be reasonable as it was too invasive a search. In other words, while smell probably would give the probable cause part - a blood test still would fail because it wouldn't meet the reasonable part of the fourth amendment test.
Everyone flamed me for this and said some about the case I quoted (which pretty plainly says smell alone gives a cop probable cause to conduct more searches) only said "offer" and not "compel" and therefore probable cause for more searches does not exist.
So I'm confused. I said smell alone would give a cop probable cause to search for more evidence. I found a case saying the same thing. And apparently I'm wrong?
In general, its relevant.
As to whether or not a police officer has probable cause to search you - whether he has evidence showing that there is a reasonable likelihood that a crime has been committed - I don't see what relevance your arrest would have.
I don't think so. Not without a warrant. And the cop needs to arrest you in order to obtain it (otherwise he has to let you go).
It's a warrant that "shall issue upon probable cause". If he doesn't arrest me, he has to go find me after he gets the warrant. Very unlikely on a DWI case.
Those cases I found say that smell alone gives the cops pc.
The case doesn't say smell gives probable cause to force a test on the driver. So what? You can refuse any of those tests on cons utional grounds.
And we're not talking about blood testing here btw.
You're right when it comes to arrest.
I'm speaking to the search.
The police need probable cause to search for evidence of a crime. That's not the same as the probable cause they need to execute an arrest.
Actually, it's the exact same one, and it's defined by the 4th amendment. It's search and seizure. The arrest falling in the "seizure" category.
What people need to remember here is that we've given law enforcement the ability to suspend our cons utional rights (like freedom), but under a very specific set of rules and cir stances.
And the other thing to remember is that cops deal with this every day, and thus know every trick in the book. So, if you're not a lawyer, don't around.
At this point, I think you have to call into question whether or not this guy is even a lawyer. Not that he has to specialize in cons utional law, but you don't make it out of law schools without a decent grasp of the 4th amendment.
I'll be changing my designation for vy from ty lawyer to ty fake internet lawyer.
Disclaimer: I'm not a lawyer myself
Yeah, the fake ty internet lawyer is being schooled in law by a layman. That's a problem if he is a lawyer, at least for his clients.
Lol why is this guy so mad? Did you not get into law school and are bitter about it?
The standard isn't the same. Probable cause for an arrest warrant requires a reasonable su ion the arrestee has committed a crime. Probable cause for a search warrant requires a reasonable su ion that evidence will be found in the area to be searched.
tbh, I do my good amount of reading on legaleses in general.
Also, in vy's defense, this topic isn't as clear cut as you would think it is. What we're talking about here is mostly academic, thus my warning about ing around with cops if you can't back it up with a good shark.
I'm mad? You're the one who is in an emotional tailspin lashing out in fits of rage. My point has always been that the smell of alcohol alone is not probable cause for an arrest and that if a cop were to arrest you on those grounds alone the evidence would not stand up in court.
And if you knew the difference between the words arrest and search, you'd realize I never disagreed with you.
I get that. Our cons utional rights are being eroded little by little in a labyrinth of cases with each one serving as precedent to chip a little deeper. 9-11 has amplified this.
But I'm really flattered that you've come up with a couple pet names for me.
I don't see that distinction
http://en.wikipedia.org/wiki/Probable_causeIn United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered.
If a cop smells booze, he has a reasonable su ion that there could be more evidence that a driver is drunk and would be justified in administering tests to collect evidence. But the cop couldn't arrest the guy outright because he wouldn't have a reasonable su ion that te driver committed the crime.
The standard, i.e. reasonable su ion is the same. But arrests and searches are different. One requires reasonable su ion the guy has committed a crime. The other requires that the guy has evidence on him/in his car/etc
Hope that clears it up for you sugarpuss
There is a distinction between arrest and search. For example, a traffic stop is considered a seizure, but not an arrest. Obviously, a formal arrest includes a seizure.
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