The Fourth wins again

[normiss 851]

You got a warrant occifer???

[Stumpy 284]

Good in this case.
Although the advocates of CISPA are doing their best to make a mess of the 4th.

Never try to eat more than you can lift

[Kennedy 0]

Honestly I'm not as happy as you are, for two reasons. First, SCOTUS punted on the issue. They didn't clear it up at all, other than saying "no" in this one case. There are no clear guidelines for LEOs. Second, I am a firm believer in "implied consent" laws as related to driving and DWI testing. I am a firm believer that officers should test blood if a DWI suspect refuses the breath test. However, I don't see why an officer would be unable to find a magistrate (or appropriate judicial official in a given jurisdiction).

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
1*

[normiss 851]

While I agree finding a judge to sign off shouldn't be an issue, I do have issues with signing away my 4th by simply obtaining a drivers license.

I do not condone warrantless searches officer, am I free to go?

[Kennedy 0]

During a stop, I completely agree with you. However, we are talking about a person who has been arrested for DWI. At that point, in every state I know of, you are required to provide a sample for testing. Some require breath. Some allow officer to choose blood or breath. Some specifically prohibit blood without a warrant. The one constant is that you have to give a sample, refusal will be offered as evidence of guilt at trial (no 5th Am protections here), and even if you refuse they can get a warrant to compel you and take it by force if necessary.

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
1*

[normiss 851]

Here's the line.

If I refuse, you should not be able to take it by force.
Get a warrant Mr. Friendly.
Just because I'm drunk doesn't mean I have no rights.

[Arvoitus 1]

So if cops need a warrant for blood test on suspect DUI can they assume then that the time it took to get the warrant is time wasted on alcohol evaporating from the suspects body.

So if takes X hours to get the warrant and the measured BAC is Y and the evaporation rate is Z, then the person gets charged with Y+X*Z BAC.

So for instance if takes 4 hours to get a warrant, the measured level is 0 and the metabolism rate is roughly 0.02 g/dl/h, this would mean that the person had BAC of 0.08 at the time they were suspected and will be punished as a DUI.

I think that would make sense.

Your rights end where my feelings begin.

[kelpdiver 2]

Quote

During a stop, I completely agree with you. However, we are talking about a person who has been arrested for DWI. At that point, in every state I know of, you are required to provide a sample for testing. Some require breath. Some allow officer to choose blood or breath. Some specifically prohibit blood without a warrant. The one constant is that you have to give a sample, refusal will be offered as evidence of guilt at trial (no 5th Am protections here), and even if you refuse they can get a warrant to compel you and take it by force if necessary.

well, more precisely, you agreed to provide it as a condition of having the driver's license. If you refuse to do so, it is revoked.

Given the right not to incriminate yourself, I don't see how you can be obliged to provide anything.

[Kennedy 0]

I agree, but that's not what the law says. It's "implied consent" and refusing a sample leads to significant negative consequences without any adversarial proceedings or further due process. And, like we've all agreed on, refusing to provide a sample for breath testing is just going to lead to them getting a warrant for blood and you license being automatically suspended/revoked.

Either way, don't drive while impaired and odds are near 100% you won't have to worry about blood testing by LEOs.

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
1*

[sfzombie 3]

like you posted, failing to provide a sample leads them to get a warrant to obtain a sample. they have magistrates on call to issue such warrants, and if not, then they should. no watering down of rights for any reason, under any circumstances. the protections are there for a reason.

http://kitswv.com

[airdvr 210]

Quote

I agree, but that's not what the law says. It's "implied consent" and refusing a sample leads to significant negative consequences without any adversarial proceedings or further due process. And, like we've all agreed on, refusing to provide a sample for breath testing is just going to lead to them getting a warrant for blood and you license being automatically suspended/revoked.

Either way, don't drive while impaired and odds are near 100% you won't have to worry about blood testing by LEOs.

I've always maintained that I will not get out of my car and allow you to video me...I will not blow into your machine...I realize the consequences but also know it's more difficult for an atty. to do his job with LEO being in possession of the vid and breath test.

Please don't dent the planet.

Destinations by Roxanne

[Kennedy 0]

I don't give legal advice, but I decided I would be polite and cooperative with any stop, but I wasn't going to answer unrelated questions (where you coming from?) and I wasn't giving them anything. I'd follow instructions, but not waive any rights, including remaining silent and refusing tests. (I don't drive drunk so blowing into the instrument to avoid automatic suspension is an exception, but nothing before or after)

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
1*

[normiss 851]

Criminal defense attorney friend of mine has advised me to do just that if I'm ever stopped and have had even a mouthful of alcohol.
Refusal to blow is a lot lower offense than is DUI.

I also do NOT talk to cops. They are not there to help. In any way.

[loch1957 0]

We do agree on the point of not talking to them. I told my son that and his response was he had nothing to hide. But its not the cops business why I'm driving on this street or where I'm going. They get a name and an ID, any more questions I get a lawyer.

Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure, or nothing.”

[ryoder 1,590]

Quote

I also do NOT talk to cops. They are not there to help. In any way.

Agreed. This speech from a law professor is an eye-opener:
http://www.youtube.com/watch?v=6wXkI4t7nuc

"There are only three things of value: younger women, faster airplanes, and bigger crocodiles" - Arthur Jones.