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Government forcing blood to be drawn
- Thread starter Dr. Zaus
- Start date
Hayabusa Rider
Admin Emeritus & Elite Member
I don't know about the Constitutionality, but it is clearly illegal.
sactoking
Diamond Member
If blood draws with a warrant for suspected DUI with an injury isn't a violation of the 5th or unreasonable search and seizure, it would be difficult to argue that blood draws with a warrant for all suspected DUIs is a violation of the 5th or unreasonable search and seizure.
Legal under Texas law.
Are Breathalyzers illegal?
Same issue.
JeffreyLebowski
Lifer
Isn't Acevedo the captain from The Shield that sucked some guys wang? Because he can go do that.
If they can't prove someone is drunk by breath test or administering a field test, then they should just tell them it's an admission of guilt. Performing those steps while 99 out of 100 times will prove your guilt, it could be said, they are performing those test to prove your innocense.
With drunk driving or public intox issues, it's a hard thing to prove at the time, unless you have physical evidence of the event. Because if you can't prove at the time that the person was drunk then when it goes to trial, the person will be sober (most of the time) and it's their word against the cop.
It's a catch 22. We don't want drunks on the road, but we can't squash peoples rights.
If they can't prove someone is drunk by breath test or administering a field test, then they should just tell them it's an admission of guilt. Performing those steps while 99 out of 100 times will prove your guilt, it could be said, they are performing those test to prove your innocense.
With drunk driving or public intox issues, it's a hard thing to prove at the time, unless you have physical evidence of the event. Because if you can't prove at the time that the person was drunk then when it goes to trial, the person will be sober (most of the time) and it's their word against the cop.
It's a catch 22. We don't want drunks on the road, but we can't squash peoples rights.
Thump553
Lifer
Look at the site the story is from dui.com, which is basically a reference link for attorneys specializing in drunk driving cases. I strongly suspect more than a few facts were left out of the story, including any potential constitutional challenges. Frankly, I doubt that even in Texas are blood tests mandatory (after all that state has a well deserved reputation for going easy on drunk drivers-it took them almost forever to ban open bottles in vehicles).
In my state there is no mandatory blood draw and any blood draw has to done by an appropriate medical professional (not a cop). If you have the right to refuse a breath test and submit instead to blood testing if it can be done within a very narrow time frame. If you refuse both the breath and blood test, your license is administratively suspended (no need for a conviction) and there are extremely limited defenses to that procedure. The cop has to establish probable cause (ie, field test failure) first.
In my state there is no mandatory blood draw and any blood draw has to done by an appropriate medical professional (not a cop). If you have the right to refuse a breath test and submit instead to blood testing if it can be done within a very narrow time frame. If you refuse both the breath and blood test, your license is administratively suspended (no need for a conviction) and there are extremely limited defenses to that procedure. The cop has to establish probable cause (ie, field test failure) first.
Fern
Elite Member
But this judge seems to have issued some kind of 'blanket' warrent; no details of the individual were communicated beforehand to the judge.
Essentially, the judge empowered the police to decide who, when and where such 'searches' were appropriate. The judge abdicated his responsibility to the officers.
Seems to completetly gut the concept of the 4th to me.
Fern
StageLeft
No Lifer
Difficult topic, because if I refuse a breathalyzer, how else can you prove I was drinking? And liqour doesn't take a ton of time to leave the blood stream, so at some point you really have to just let me off or steal some blood.
As it is now, you don't get a breathalyzer request without cause, like you stink of booze. If you do smell of booze and refuse it, can anybody give a practical reason why that is a valid refusal? 99% of the time it would only be because you know you run a big risk of going over the limit.
As it is now, you don't get a breathalyzer request without cause, like you stink of booze. If you do smell of booze and refuse it, can anybody give a practical reason why that is a valid refusal? 99% of the time it would only be because you know you run a big risk of going over the limit.
Hayabusa Rider
Admin Emeritus & Elite Member
Not really
He's drawing blood when people refuse, not after an accident with injuries.
Any DUI attorney will tell you to refuse the breathalizer because by times the can get a LEGAL blood sample, the odds are if you were slightly over the limit, you would be under the limit by time the sample is drawn.
What Austin is wanting to do is, allow blanket warrants to be used to aquire blood samples by the cops themselves and not medical professions.
The whole blanket warrant is the issue at hand. Its likely not going to meet court challenges. Kinda strange is coming out of liberal Austin.
StageLeft
No Lifer
Are you sure? I doubt that. Surely a trained professional is taking the blood. Taking blood from people is a bit of an artwork. There are many nurses who've been working for years who still have problems finding a vein on certain people. I assume a paramedic or somebody works alongside these cops to get the blood.
sactoking
Diamond Member
Ahh, I didn't pick up on that.
Now that I understand the issue, I agree. That's why other localities have judges on-call at checkpoints. It's not a blanket warrant, but it is an almost-immediate rubber stamp warrant, which passes constitutionality.
If I were challenging a blood draw under this provision, this is what I'd argue (aside from the whole blanket warrant thing). I'd also sue the PD for reckless endangerment. There's always a chance you could get an air bubble or infection from an improper draw, and that's only magnified when non-medical personnel are involved.
Hayabusa Rider
Admin Emeritus & Elite Member
The police are taking the blood. That was the a part of the argument against this policy because of contamination, possible tampering, etc. It's in the article.
JeffreyLebowski
Lifer
I'm surprised it took this long for someone to mention Bush. Good Job meetign the quota though.
Last I receall, military service is purely voluntary.
Wow.... just wow. It just amazes me how far we've allowed the government to go. Non-medically trained personnel, forcibly subjecting you to blood draws that could result in injury, infection and even death. Without any trial, without any defense, without any legal court hearing etc. Sad.
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