# Supreme Court To Decide On Police Drawing Blood



## MJS (Jan 9, 2013)

I thought this was interesting.
http://usnews.nbcnews.com/_news/201...without-your-permission?lite&ocid=msnhp&pos=4

"The U.S. Supreme Court will hear arguments Wednesday in a landmark Fourth Amendment case that could clear up almost 50 years of uncertainty over the constitutionality of blood tests that are taken without a suspect's consent.
Follow @NBCNewsUS
The case involves a traffic stop in Missouri, but its ramifications could range far wider, potentially rewriting drunk-driving laws in all 50 states.
"It comes down, basically, to are you going to see blood draws every single time someone gets pulled over for a DUI," said Michael A. Correll, a litigator with the international law firm Alston & Bird, who examined the legality of blood draws in the West Virginia Law Review last year."


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## Tez3 (Jan 9, 2013)

Do you not breathalyse people at the roadside? Here we breathaylse, to refuse to give a sample of breath when asked by a police officer is an offence. If you are over the limit you will be taken to a police station where a more accurate machine is used to give two readings, the lower one is taken for evidence. You will be offered the chance to give a blood or urine test, but it's not mandatory and the police don't need it to prosecute only the breath test. Any blood taking is done by duty doctor or nurse.


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## ballen0351 (Jan 9, 2013)

Usually blood test is used when the suspect is involved in an accident gets hurt and can't blow in the machine.  At least here anyway


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## Tgace (Jan 9, 2013)

ballen0351 said:


> Usually blood test is used when the suspect is involved in an accident gets hurt and can't blow in the machine.  At least here anyway



Same here..and typically under court order.

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## Tez3 (Jan 9, 2013)

there's strict rules of taking blood when a person is injured here. We don't do any sort of sobriety testing at the roadside, it's 'blow here' straight away.


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## ballen0351 (Jan 9, 2013)

Tgace said:


> Same here..and typically under court order.
> 
> Sent from my SCH-I405 using Tapatalk 2


We don't need a court order or consent if the accident caused a serious injury or death.  Otherwise we need consent.  Its easier to just subpoena the medical records later since the hospital will draw blood anyway during treatment


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## Tgace (Jan 9, 2013)

ballen0351 said:


> Usually blood test is used when the suspect is involved in an accident gets hurt and can't blow in the machine.  At least here anyway



Similarly, if its a fatal accident, a judge can force a driver to give blood.

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## punisher73 (Jan 9, 2013)

In Michigan, you do 3 standard field sobriety tests.  If there is a articuable reason not to do one of the standard 3, then there are some alternatives.  You then can check your results with a roadside PBT (prelimanary breath test), but that is NOT admissible in court.  It is just to help officers in their decision based on the tests.  After that, you take them to a certified breathalyzer and have them take two samples. 

At any point if the person refuses or can't get a good sample.  Then our policy is to call the on-call magistrate and seek a search warrant for a blood draw. We would NOT just try it without one.  Many of our officers just get blood draws anyways because it is more concrete against a defense attorney.


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## Tez3 (Jan 9, 2013)

Here you can't call it as someone being drunk without physical proof such as the breath test. While they shouldn't be driving there's other reasons a person may appear drunk such as being in diabetic crisis etc so there has to be proof not just a police officer sayng someone can't walk straight. It takes the responsibility away from an officer deciding someone is drunk and makes it almost impossible for someone to challenge in court.


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## jks9199 (Jan 9, 2013)

Tez3 said:


> Do you not breathalyse people at the roadside? Here we breathaylse, to refuse to give a sample of breath when asked by a police officer is an offence. If you are over the limit you will be taken to a police station where a more accurate machine is used to give two readings, the lower one is taken for evidence. You will be offered the chance to give a blood or urine test, but it's not mandatory and the police don't need it to prosecute only the breath test. Any blood taking is done by duty doctor or nurse.



This is going to get kind of complicated...  The case at issue derives from a DUI stop & arrest, and the officer, relying on a change in wording in the law, felt he had the legal authority to take the blood sample (OK, technically cause it to be taken), and that the suspect could not refuse.  Another justification would be exigent circumstances, where the evidence would be destroyed in the time it took to obtain a search warrant.  Remember that the 4th Amendment generally prohibits unreasonable searches without a warrant, or consent.  The only reason I add unreasonable here is that there are a number of searches, like border searches, that have been held as reasonable.  Functionally, you can't do a search (probe into hidden areas) and seize anything unless it's an exception (like exigent circumstances), or you have a warrant, or you get consent.  

OK... now lets add the DUI wrinkle.  Most states have some form of implied consent law, which essentially says that you WILL consent to some sort of evidentiary test if you're arrested for DUI, or you face a separate charge.  For example, in Virginia, you will consent to a breath test unless it is unavailable, or you are unable to provide a sample (often due to an injury in a crash), and you are arrested within 3 hours of the alleged offense.  So... what does that mean?  I arrest a guy on suspicion of DUI, based on failing field sobriety tests, driving observations, and his admission that he's drunk as a skunk.  I take him to the station, and a licensed operator (I happen to be one) administers the evidentiary breath test, according to the prescribed procedures.  But he can't blow for whatever reason... I take him and have blood drawn.  But -- this is all by consent.  But instead of Mr. Cooperative Drunk -- I get Mr. I-Know-My-Rights, and he refuses.  Without a warrant, in Virginia, I cannot make someone draw that blood.  Mr. I-Know-My-Rights gets 2 charges; DUI & Unreasonable Refusal.  

That's because consent can be revoked at any reasonable time.  (You can't revoke consent after the cops find the evidence...)  If consent is revoked, you're back to needing a warrant or other exception.  As a condition of driving, you're presumed to have given consent.  You revoke that consent, and I can't trump that in Virginia, without a warrant.  The Missouri law eliminated that loophole... and is probably unconstitutional.  I suspect the case at issue will remain overturned; consent can be revoked, and it's a big step to mandate a blood draw.

With all that said -- generally, when I (or most officers) make a DUI arrest, we've got a case, even without an evidentiary test.


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## jks9199 (Jan 9, 2013)

ballen0351 said:


> We don't need a court order or consent if the accident caused a serious injury or death.  Otherwise we need consent.  Its easier to just subpoena the medical records later since the hospital will draw blood anyway during treatment



The catch with a hospital blood draw, unless they know it's a DUI draw, is that they may have used alcohol wipes to clean the arm.  That introduces a line for the defense to attack.


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## Tgace (Jan 9, 2013)

In NY I can charge you with DWI without even knowing your BAC....1192-3VTL (Driving While Intoxicated). If drinking any ammount of alcohol impairs your motor function to the point that it causes you to drive erratically (causing me to stop you) and fail field sobriety tests, you are too drunk to drive regardless of your BAC. When I arrest you, take you to HQ, breath test you and you come out .08 or greater, I charge you with 1192-2VTL (Driving with .08 of one per centum or more of alcohol in the blood). Both are misdemeanors.


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## jks9199 (Jan 9, 2013)

Yep; in VA, it's 18.2-266.  It's illegal to operate a motor vehicle with a BAC of .08 g/210 L breath or .08 % weight/volume, "while a person is under the influence of alcohol" (demonstrated by testimony as to impairment, including the SFSTs or other tests and evidence), and then it's into drugs (some _per se_ blood levels, some not), or combinations of drugs and alcohol.  It's all the same code section & same violation, so when we do a test, we check breath first, then may do blood draws for drugs.  

On the issue of when I do blood draws...  If there are injuries to the mouth that may put blood into the mouth, or they're vomiting, it's definitely time to draw blood.  If they appear to be legitimately trying to do the breath test, but just can't follow directions or are really unable to keep from burping (may let alcohol into the mouth, so burps may preclude the breath test) -- I may give them the option of blood rather than refusal.  If I think they're playing games -- they get to go for refusal, not blood.  In Virginia -- it is NOT their choice.


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## James Kovacich (Jan 9, 2013)

In Ca, atleast the way it used to be a suspect had to submit to either a breath or blood. But if suspected of drug usage it was a blood test.

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## Tgace (Jan 9, 2013)

jks9199 said:


> If I think they're playing games -- they get to go for refusal, not blood.  In Virginia -- it is NOT their choice.



Ditto here.


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## ballen0351 (Jan 9, 2013)

jks9199 said:


> The catch with a hospital blood draw, unless they know it's a DUI draw, is that they may have used alcohol wipes to clean the arm.  That introduces a line for the defense to attack.



Yeah we normally will tell the nurses our plan if its a DUI case.  So they don't use alcohol wipes.


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## arnisador (Jan 14, 2013)

jks9199 said:


> The catch with a hospital blood draw, unless they know it's a DUI draw, is that they may have used alcohol wipes to clean the arm.  That introduces a line for the defense to attack.



There's a legally fascinating and very disturbing case moving through Indiana's courts right now involving an Indianapolis police officer named David Bisard:
http://www.indystar.com/article/999...0/IMPD-officer-David-Bisard?odyssey=topicpage

His cruiser struck motorcyclists at an intersection, causing death and injury. The details are pretty specific to Indiana law: The responding LEOs didn't treat him as a potential suspect, but eventually his blood was drawn--by someone legally licensed to draw blood in the state but not from a category authorized to do so for purposes of a DUI conviction. His BAC was over the limit. The prosecutors have repeatedly tried to get around the issue of who drew it--including trying to have it used to support other related charges even if not the DUI. In the meantime the police dept. has lost a vial of blood from evidence storage and taken another out of refrigeration, with never any trace of who did so or why. It's led to firings at the top and lots of distrust of how the police investigate their own, but the issue you raise above is one of many that has come up. Lots of details at the link, but here's a bit of it:



> According to an IMPD report, investigators went to Methodist  Occupational Health Facility, 1001 S. Eastern Ave., where Bisard was  being treated for minor injuries to his arms and to the top of his head,  to get a blood draw about 1 p.m. When that sample was later tested, the  reading was 0.19. Under Indiana law, a motorist is legally drunk at  0.08.
> 
> Police officers who had been at the scene of the accident  and in close proximity to Bisard said they had not smelled alcohol on  him, nor did he seem drunk. Experts said it would have taken 10 drinks  or more to reach a 0.19 level.
> 
> ...






Tgace said:


> In NY I can charge you with DWI without even  knowing your BAC....1192-3VTL (Driving While Intoxicated). If drinking  any ammount of alcohol impairs your motor function to the point that it  causes you to drive erratically (causing me to stop you) and fail field  sobriety tests, you are too drunk to drive regardless of your BAC.



I know that's true, but I have had the impression that because juries expect CSI-style evidence nowadays that such things were now very hard to prosecute without blood or breathalyzer evidence.


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## jks9199 (Jan 15, 2013)

arnisador said:


> I know that's true, but I have had the impression that because juries expect CSI-style evidence nowadays that such things were now very hard to prosecute without blood or breathalyzer evidence.


Without a BAC, it's maybe 50/50 on DUI or "Wet Reckless."  A wet reckless means that the charge is reduced, but most of the imposed sentence mirrors a DUI conviction.  A lot depends on the exact circumstances, what the evidence supporting the DUI charge is beyond the BAC (driving behavior, test performance, inadmissible BAC like from a Preliminary Breath Test device, history), and most cases where Refusal is charged along with DUI result in a plea dropping the Refusal and keeping the DUI.


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