Police may take blood sample without warrant, court says

Police may take blood sample without warrant, court says

www.startribune.com

When authorities have reason to believe that a drunken driver has caused a serious or fatal accident they have a right to draw the driver's blood to test its alcohol content without their consent and without a search warrant, the Minnesota Supreme Court ruled Friday.

(visit the link for the full news article)

Not really quite sure what to say about this, it seems unreasonable to me that they would need a blood test to confirm if they were drunk unless they were unconscious. Wouldn't a breathalyser also tell them if the suspect was intoxicated? Me personally, I HATE needles, so I am wondering why they could not determine this without the need to draw blood?

One part that really concerns me with the wording is:
[QUOTE]In a 5-2 decision, the Supreme Court said that the "rapid, natural dissipation of alcohol in the blood creates ... a circumstance [requiring immediate attention] that will justify police taking a warrantless, nonconsensual blood draw from a defendant" provided the officer has probable cause to believe that the defendant has committed criminal vehicular homicide or operation.[/QUOTE]

They say they can do so if they have probable cause to believe they committed criminal vehicular homicide OR operation. I read that as, if they killed someone in this act, OR they were operating a vehicle while intoxicated. Those are two very different things and really it opens the door for blood tests without warrant on any alcohol related charge.

Makes me glad I enjoy something alcoholic about twice every month, if even that, and I do not drive drunk, not worth someones life for me to save $$ on cab fare.

Also, this is where I live so this really hits home. (I live really close to Burnsville, MN)

www.startribune.com
(visit the link for the full news article)

Here in the UK when you are arrested for drink driving you get the breath test at the road side and then again under a calibrated and certified system. If this fails or you refuse to provide, then a blood test can be taken by the force Dr with signed witnesses and an evidence chain in place.

hmmm, doesnt that mean for example, if your driving around in your car, with a dent in the fornt bumper say, you can be stopped and have a blood sample taken?
i mean, the cop could claim prbable cause of a traffic accident due to you having a dent right?

The police are now qualified to draw blood?

These are the same guys who will tazer you or shoot you without remorse, and we are now going to trust them to use hypodermic needles to draw blood?

Well, I wonder if they will be using any cruder means; slash and drip.

Methinks this has something to do with the fact a growing number of DUI suspects are challenging the Breathalyzer in court and winning on a technicality.

Basically a number of suspects decided to challenge the Breathalyzer reading. In order to do so their lawyers demanded access to the source code the Breathalyzer uses to determine alcohol content; the company that makes the BA refused to give it up as a "trade secret". The judge in the case stated (rightly, in my opinion) that the accused has a right to challenge the accuser--in this case the Breathalyzer itself, a machine, is the accuser--and thus has the right to access the source code for private analysis by defense experts. The manufacturer refused. Here's a snippet from the case from Florida in an article from 2005:

Without knowing why the computer program is saying my client committed a crime, it is difficult to effectively challenge this evidence. The rhetorical question posed by one of the Judges to the prosecution last Friday sums it up well: "Doesn't the due process rights of the accused take precedent over a manufacturer's claim of trade secret?"

Here's the link.

I'd bet this blood-sample legislation has a lot to do with these successful challenges against the Breathalyzer, made successful specifically because its maker wants to guard trade secrets. It's a lot easier to get a lab technician on the witness stand to discuss blood analysis than it is to force a company to give up confidential information.

Now whether this legislation is right is another matter. I think it opens a whole new can of worms....

I can see the rationale behind this, and would probably even support this decision if there was a guarantee that this new power would not be mis-used/abused (yeah right). However, the Fifth Amendment states that one cannot be forced to provide information that may incriminate oneself.
The Minnesota Supreme Courts' Decision is Unconstitutional, period.
If law-enforcement or the judicial system feel they need this new power then, by all means, gather up the supporters and start the proceedings necessary to repeal or amend the Fifth Amendment of the Constitution.


Duh, edit to change reference to the proper amendment,
thanks to TheNighthawk for listing correct one.

[edit on 2-6-2008 by FewWorldOrder]

[edit on 2-6-2008 by FewWorldOrder]

Originally posted by FewWorldOrder
I can see the rationale behind this, and would probably even support this decision if there was a guarantee that this new power would not be mis-used/abused (yeah right). However, the Fourth Amendment states that one cannot be forced to provide information that may incriminate oneself.
The Minnesota Supreme Courts' Decision is Unconstitutional, period.
If law-enforcement or the judicial system feel they need this new power then, by all means, gather up the supporters and start the proceedings necessary to repeal or amend the Fourth Amendment of the Constitution.

A valid point, and if this involved officers knocking on your door at home and wanting a blood sample, then you'd be absolutely right.

Most states, however, consider driving to be a "privilege", not a "right", and thus one technically has no Fifth Amendment right to avoid self-incrimination in the direct context of a vehicular incident. In Illinois you WILL lose your license for refusing a Breathalyzer test. The ability of police to make you take one is tied directly to the privilege of driving a car. I'm sure Minnesota's decision is set up in a similar manner; i.e. if you're driving, you are enjoying a privilege the State grants you in exchange for your unquestioned cooperation with police if they suspect you are driving while impaired.

Now I'm not saying that's right or wrong; it is what it is. Personally I abhor the likelihood such samples will be used to create a genetic tracking database, and also the likelihood they'll be testing for more than just alcohol so they can really try and "stick it" to a suspect. On the other hand, drunk drivers are a serious menace and kill thousands every year (over 13,000 in 2006, latest numbers I could find on the spur of the moment) and only stronger enforcement, preferably with mandatory prison time in my opinion, can reduce the number of idiots who think they're "fine to drive" after downing a twelve-pack.

I'm honestly on the fence about this.

Originally posted by FewWorldOrder
I can see the rationale behind this, and would probably even support this decision if there was a guarantee that this new power would not be mis-used/abused (yeah right). However, the Fourth Amendment states that one cannot be forced to provide information that may incriminate oneself.
The Minnesota Supreme Courts' Decision is Unconstitutional, period.
If law-enforcement or the judicial system feel they need this new power then, by all means, gather up the supporters and start the proceedings necessary to repeal or amend the Fourth Amendment of the Constitution.

Excellent point! This actually hadn't crossed my mind initially, but it does make alot of sense. I'd guess they will deal with that argument the same way crimes requiring someone submit to DNA testing are delt with. I wouldn't have nearly as big of an issue with this if they didn't conclude the statement about who this applies to with "or operation." To me that leaves quite a large door open as to who this CAN apply to...

I am opposed to these continued limits to our rights or infringement into our personal lives. This one is a bit scary but drinking and driving is a problem.

In Texas the government states that driving on Texas roads give an implied consent for this type of action. When will random stops include a blood test?

Guess a solution is to not drive after recent drinking. Of course may a wreck has been due to some thinking they can still drive will impaired by drinking.

A big concern though is where will this all stop, if at all. 'Are you sick, we think you are sick, give us a blood sample.', etc.

Originally posted by The Nighthawk
Most states, however, consider driving to be a "privilege", not a "right", and thus one technically has no Fifth Amendment right to avoid self-incrimination in the direct context of a vehicular incident.

That consideration is unconstitutional as well.

"The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to drive a horse-drawn carriage or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business. It is not a mere privilege, like the privilege of moving a house in the street, operating a business stand in the street, or transporting persons or property for hire along the street, which a city may permit or prohibit at will."
[Thompson v. Smith, 155 Va. 367,154 SE 579 (1930)]

Seems all of us with a drivers license have been duped into thinking we needed one.

Originally posted by Unit541

Originally posted by The Nighthawk
Most states, however, consider driving to be a "privilege", not a "right", and thus one technically has no Fifth Amendment right to avoid self-incrimination in the direct context of a vehicular incident.

That consideration is unconstitutional as well.

"The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to drive a horse-drawn carriage or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business. It is not a mere privilege, like the privilege of moving a house in the street, operating a business stand in the street, or transporting persons or property for hire along the street, which a city may permit or prohibit at will."
[Thompson v. Smith, 155 Va. 367,154 SE 579 (1930)]

Seems all of us with a drivers license have been duped into thinking we needed one.

Understood. But, that precedent is from 1930, when there were far fewer cars on the road and the need for states to issue licenses barely existed. I dare you to make such an argument in a modern court of law in any state today--you'd be a laughing stock.

I think you'd be hard-pressed to find any competent individual to argue on your behalf that driver's licensing, at the very least as a measure of competence behind the wheel and identification of those who drive, is unnecessary and Unconstitutional.

reply to post by The Nighthawk


Do a google my friend, many modern day cases have been won based on this argument.

Besides, does it matter? There were many fewer guns back then too. Does that mean that because there's more guns that your right to keep and bear arms would be a laughing stock in a court of law?

Constitutional rights are invalidated in only two ways.
1. an individual voluntarily gives up a specific right.
2. the constitution is amended



[edit on 6/2/2008 by Unit541]

reply to post by HaTaX


The majority of drunk driving cases are backed up with the road sobriety test and breath test. If some one faught the breath test the road test sinks it.The blood test is not needed..never was in the past.

This is our government collecting DNA.

Originally posted by Unit541
reply to post by The Nighthawk

 

Do a google my friend, many modern day cases have been won based on this argument.

I haven't found one yet.

Besides, does it matter? There were many fewer guns back then too. Does that mean that because there's more guns that your right to keep and bear arms would be a laughing stock in a court of law?

Apples and oranges. The vast majority of Americans have little or no use for guns. They are used primarily for sport, hobby, and home protection. The fact is their use in everyday life is practically nonexistent outside law enforcement and the military.

Cars, on the other hand, are everywhere. They are needed more often than not to get around. Because of this, and I'm sure most Americans would agree, there MUST be a system of training, verification of competence, and physical issuance of licenses to provide that verification. There must also be a mechanism in place to determine what is and is not acceptable behaviour behind the wheel and to prevent offenders from driving, and licensing also provides this mechanism and that needed to track vehicular use.

I understand where you're coming from, and on a purely philosophical level we have some agreement. However! Would you really want to live and drive in a country that has no standards, no method of enforcement, where the "right to drive" is shared by everyone from the most professional commercial driver to the guy who's had seven DUIs and killed and/or maimed half a dozen people in his drunken stupor? And when he hits you, he doesn't have to stop, doesn't need insurance to pay for your injuries or repairs, and has no consequences attached to his actions?

I sure don't.

One of the things many strict Constitutionalists forget is that the courts have continually upheld the state's ability to issue "reasonable regulation" of certain rights. That's why I can't own guns in Chicago and drivers need licenses.

The reason regulation exists is because with some rights, the power wielded by the practitioner of those rights is such that they can do irreperable harm to others in violation of the others' rights, and such the state has a responsibility to provide regulation and enforcement thereof.

I challenge you to exercise this "right" to drive unlicensed and unrestricted. I hope you have a damn good lawyer.

Law enforcement officers may have blood drawn as evidence of DWI if they have probable cause to believe criminal vehicular operation or homicide has happened, state Supreme Court rules.

When authorities have reason to believe that a drunken driver has caused a serious or fatal accident they have a right to draw the driver's blood to test its alcohol content without their consent and without a search warrant, the Minnesota Supreme Court ruled Friday.

The surprising structure of the report does represent a legal problem, so I'm inclined to think that when the case is written we may see some kind of adjustment to the text.

The term "criminal vehicular operation" can mean ANYTHING, which, by the way, includes "homicide". This tells me that the framers threw in that last word to 'sensationalize' the offense of the accused. This kind of law is almost always troublesome in terms of constitutionality.

Actually, whether you're drunk or not is the point of this law. Speeding, illegal left turn, driving with expired registration, driving with missing license plate, these are all "criminal vehicular operation."

The idea of seeking the blood expressly "as evidence of DWI" is kind of tricky. I mean, once they have your blood they HAVE it. They can, if they can manufacture 'cause', do whatever they want to it test-wise.

Warrants were always deemed necessary because of the abuse of power that frequently took place when such requirements weren't in place. Why all of a sudden is it so urgent to eliminate this requirement?

reply to post by Witness2008

Originally posted by Witness2008
The majority of drunk driving cases are backed up with the road sobriety test and breath test. If some one faught the breath test the road test sinks it.The blood test is not needed..never was in the past.

This is our government collecting DNA.

And if the alleged drunk driver is injured and laying on a stretcher, how will you administer a breath test or field sobriety test?

Hey Jsobecky..I was replying to roadgravels statement. I should have made that clear. My bad.

When a driver is involved with a fatal accident I agree there is little time for a warrant, and there is justification for immediate draw. My issue is with what is happening in Texas where authorities are bypassing the required protocol.

[edit on 2-6-2008 by Witness2008]

Originally posted by Witness2008
...I agree there is little time for a warrant, and there is justification for immediate draw. ...
[edit on 2-6-2008 by Witness2008]

Actually, that is not correct. Almost every single police department in the U.S. has templates where they just fill in the blanks. It takes 10 minutes to fill out a warrant. Another 10 to have a judge sign it. Our rights aren't even worth waking up a judge to get a signature?

BTW, in the 20 minutes it would take to get a warrant, the accused would burn off 1/3 of 1 glass of beer or wine.

Sir-chancealot..I did not know that. Is that nationwide or just a few states? I am most familiar with Texas and Missouri law. Texas has never bothered with warrants and missouri is pretty strict with issuing them.