Is mandatory blood draws for DWI suspects uncons utional?

[ElNono]

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

This isn't correct.

And I did remember why the arrest is necessary. Considering that the person refuses the search to be carried out, the only way the cop can compel the person to carry the search is by depriving him from his liberty, a process that's done through arrest.

[vy65]

Why isn't that right?

[ElNono]

Here's FWD.... I'll slowly crawl back to my cave...

[ElNono]

Why isn't that right?

Let me rephrase that. If by administering you mean compel (that is, the person can't refuse), then that isn't right. A test is invasive of personal privacy.

[vy65]

No. What I mean by administer is request the driver to take a fst, breathalyzer, etc...

If they refuse, the cop would have to get a warrant from a judge or search the guy and show that the search fell within one of the exceptions to having a warrant (ie transient evidence).

The fact that the cop smelled booze in the car would give pc for the search, ie the warrant.

[ElNono]

No. What I mean by administer is request the driver to take a fst, breathalyzer, etc...

If they refuse, the cop would have to get a warrant from a judge or search the guy and show that the search fell within one of the exceptions to having a warrant (ie transient evidence).

The fact that the cop smelled booze in the car would give pc for the search, ie the warrant.

That we agree with

The thing is, the cop can't pull a gun to the guy's head if he doesn't want to submit to the search. That's why the arrest has to happen.

[ElNono]

BTW, FromWayDowntown might not feel like commenting, but I would certainly appreciate the input.

[Th'Pusher]

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.

El, if you're interested in this stuff, I recommend the book 'The Rights of the People' by David K. Shipler. He's does a good job of looking at how our rights have be expanded and eroded from a historical perspective.

[vy65]

So then we agree that the smell of alcohol provides pc for a search - ie - a search warrant could issue solely on the basis that an officer smelled alcohol in a car?

And yes I know that it would never happen in reality/this is academic, but I'm trying to make a point here.

[vy65]

Th'pusher, where you at my ?

[ElNono]

El, if you're interested in this stuff, I recommend the book 'The Rights of the People' by David K. Shipler. He's does a good job of looking at how our rights have be expanded and eroded from a historical perspective.

Thanks.

vy will tell you I'm always interested in legalese, specifically when it comes to rights. We had these discussions before. I try to catch up with case law whenever possible.

[Th'Pusher]

No. What I mean by administer is request the driver to take a fst, breathalyzer, etc...

If they refuse, the cop would have to get a warrant from a judge or search the guy and show that the search fell within one of the exceptions to having a warrant (ie transient evidence).

The fact that the cop smelled booze in the car would give pc for the search, ie the warrant.

I agree with this. But, I don't think he needs probable cause to ask you to take a breathalyzer test. This is where offer/compel becomes relevant. He's just asking you if you'll take one. Does he need probable cause to ask you to voluntarily take a breathalyzer?

[vy65]

So why did you get so mad?

[ElNono]

So then we agree that the smell of alcohol provides pc for a search - ie - a search warrant could issue solely on the basis that an officer smelled alcohol in a car?

And yes I know that it would never happen in reality/this is academic, but I'm trying to make a point here.

It's tricky because if you lock yourself in your car in private property and get drunk, but you're not driving, I'm not sure a crime was committed.

Even if you're driving and you're transporting a drunk passenger, that's not necessarily a crime either, and I doubt in that case a search warrant would issue either.

I would think it's in the case where the cop thinks the driver is actually drunk, and the driver refuses the test, then he could move to arrest him and charge him with DWI, and then he can conduct all the searches he wants.

[Th'Pusher]

So why did you get so mad?

I'm not mad. Again, you were the one lashing out calling me a moron and an idiot. I was just asking you to back up your claim that the smell of alcohol alone cons utes probable cause. The only case you cited where the smell of alcohol was the single factor, the suspect was arrested for violating the implied consent law.

[vy65]

I'm not mad. Again, you were the one lashing out calling me a moron and an idiot. I was just asking you to back up your claim that the smell of alcohol alone cons utes probable cause. The only case you cited where the smell of alcohol was the single factor, the suspect was arrested for violating the implied consent law.

And I called you an idiot for not understanding the difference between a search and an arrest. My argument never was a cop could arrest someone for smelling like booze, even though literally everyone tried pigeon-holing me into that position.

My point was the smell of booze is sufficient to meet te probable cause standard for a search - ie - that a cop would have be reasonable in believing there was more evidence of drunkenness on the driver.

Just because pc for a search exists doesn't mean te driver automatically gets arrested. It means LE would be justified in searching the guy for more evidence if the requisite formalities are met.

[vy65]

It's tricky because if you lock yourself in your car in private property and get drunk, but you're not driving, I'm not sure a crime was committed.

Even if you're driving and you're transporting a drunk passenger, that's not necessarily a crime either, and I doubt in that case a search warrant would issue either.

I would think it's in the case where the cop thinks the driver is actually drunk, and the driver refuses the test, then he could move to arrest him and charge him with DWI, and then he can conduct all the searches he wants.

While interesting/funny, that wasn't the hypothetical. The hypo was: guy gets pulled over and smells of booze. Is it reasonable to believe there is evidence of DWI on the guy/in the car.

This thread should have been about whether it's reasonable to believe that. Not the show it devolved into.

[ElNono]

While interesting/funny, that wasn't the hypothetical. The hypo was: guy gets pulled over and smells of booze. Is it reasonable to believe there is evidence of DWI on the guy/in the car.

This thread should have been about whether it's reasonable to believe that. Not the show it devolved into.

Meh, I've been pretty tame on the topic because I already know this isn't clear cut. Stated as much, and knew this would turn into this turd.

[Th'Pusher]

And I called you an idiot for not understanding the difference between a search and an arrest. My argument never was a cop could arrest someone for smelling like booze, even though literally everyone tried pigeon-holing me into that position.

My point was the smell of booze is sufficient to meet te probable cause standard for a search - ie - that a cop would have be reasonable in believing there was more evidence of drunkenness on the driver.

Just because pc for a search exists doesn't mean te driver automatically gets arrested. It means LE would be justified in searching the guy for more evidence if the requisite formalities are met.

I understand the difference between search and arrest. I think you are conflating probable cause to arrest with reasonable su ion to detain you to investigate, but that's already been covered.

[CosmicCowboy]

I can't believe you guys are still beating this one up.