Forced Catheterization Used In DUI Case

[MJS]

Problem is, they only check for alcohol.

The newspaper states that the driver was pulled over for "drunken driving", but my understanding is that the actual charge was "DUI", which as far as I know is not restricted to just alcohol.

A driver under the influence of street drugs, legally prescribed Rx drugs, or even OTC meds such as nyquil could possibly be just as dangerous as a driver with a BAC of .08 or above.

Well....yeah, of course they're only checking for alcohol. But, I see what you're saying. I could have nothing to drink, but be under the influence of any other drug, which will give the impression that I'm impared. One would hope that if the cop knows what he's doing, he'd realize the person wasn't fit to drive, and arrest him, if he had reason to believe there were drugs in the car or the person was under the influence of drugs.

I'm no doctor, but the tests are only going to show what they're told to show. In other words...I go to my doc for a physical. He sends me for blood work, instructing the people to test for my cholesterol and any other box he checks. The people at the lab are not going to test for the AIDS virus because they weren't told to.

I think, if I'm understanding the article correctly here, the issue is he was forced. AFAIK, if someone refuses to submit to a test, thats the end of it. Charges are based on the persons refusal.

 

[jks9199]

So a Breathalyzer and blood test confirm that the guy was below the limit. How would they have been able to prosecute him anyway. I was just in Indiana and they have warning signs up everywhere that speeding Max 1000.00 fine reckless driving up to 8 years in jail. I wonder what the fine and jail time would be for drunk driving? It would have to be massive for a judge to sign off on the search warrant!

My understanding is that with the right court order, you can be forced to comply. I know if I'm pulled over and refuse a sobriety test I lose my license.

I suspect there's more to this that hasn't come out yet.

A couple of points, without really being able to go too far on what's here.

First, implied consent laws (which most if not all US states have) mean that, as a condition of choosing to drive on the roads of the state, you've consented to a chemical test to determine whether you are driving while intoxicated (or whatever they call it). The chemical test is chosen/defined by the state's law. In VA, it's a breath test unless the breath test is unavailable for some reason, or the officer has reason to believe that you're high, not drunk. If breath testing isn't available or appropriate, it's a blood test, which must be drawn in both a forensically acceptable manner and a medically acceptable manner. We don't use a urine test.

Second, to answer a later question from Bob, breath alcohol testing is generally reliable. Henry's Law tells us that the proportions of chemicals in the gas above a liquid are directly relatable to the proportions in the liquid. From that, we can assume that the breath sample is going to give us a good idea of what's in the blood as it passes through the lungs, if some basic conditions (like no alcohol in the mouth) are met. Generally, the testing protocol and device are designed to ensure that the assumption will hold. For example, in VA, we observe a 20 minute observation to make sure that there is no alcohol in the mouth, and the device will detect other interferants as well as the wrong progression of the test results that would indicate mouth alcohol was present.

There are two common methods of determining the breath alcohol concentration: IR spectrometry (alcohol has a specific absorption spectrum in the ranges monitored, and the absorption is directly related to the concentration of alcohol in the sample), or electrochemical testing (fuel cells). Both are reliable, if used appropriately.

Finally, it seems from the scant information in the article that the officers obtained a search warrant for urine and blood. All that is required for a search warrant to be issued is that there be probable cause that the specific evidence in question is more likely than not going to be found in the place or person named; absent things that would kill a person, it doesn't matter whether we're looking for urine, hair, or DNA in or on the subject's person, or a semi hidden in their garage. Some warrants will specify the method or timing of the execution. For blood or urine, all that would be required is that they be taken in a medically acceptable manner. The evidence in question here (alcohol or drugs in the sample) is perishable, and diminishes over time, so there would have been exigency supporting taking the sample by more forcible means, such as handcuffing or sedating him.

Bluntly, given a proper search warrant for perishable evidence in the blood or urine, I can take a subject into a hospital, and basically sit on his chest if need be to allow the medical staff to take the sample. It's really not all that different than bashing a door in with our "universal door key" (ram).

Note that I am not suggesting that the action of obtaining the search warrant in this case was automatically reasonable and appropriate. There's not enough given to know... I once had a guy who was so high/drunk that nobody could figure out what he was on, and he claimed not to know. We took blood (less dramatically) and basically said "find out; this is how he was acting!")

 

[jks9199]

In Illinois, if you refuse to take the Breathalyzer, they can do an Immediate Blood draw, no court order neccessary.

In fact, its become SOP to have a Doctor on hand at Roadside checkpoints to do these draws on the scene.

I'm going to use this to spring onto the issue of refusing a test, because it's easier than editing my previous post. Again, please recall that I'm not a lawyer, and generally specifics relate to Virginia law.

In Virginia, implied consent means that you have, by choosing to drive on our roads, agreed to a chemical test to determine whether or not you are drunk or high while driving, if arrested for the offense of DUI or several related offenses. You can revoke that consent, and refuse the test, for reasonable grounds. If it's found at trial that you have unreasonably refused the test, you lose your license for an additional year (or more), as well as face separate fines or imprisonment.

You will submit to a breath test, unless the officer suspects you of being under the influence of drugs, or the breath test is unavailable. As a general rule, the breath test is not unavailable unless you're injured, vomiting, or really honestly can't control belching (which might bring stomach contents including perhaps alcohol into the mouth). Unless they suspect only drugs, in Virginia, most cops will do breath anyway, because it's the same code section and the same punishment if you're drunk or high. We can't charge you with both DUI (alcohol) and DUI (drugs) at the same time for the same offense.

 

[Cryozombie]

Don't take this as my support of drunk drivers on the road, just somthing I do find rather interesting... There was a Supreme court ruling in the 70's, (I believe it was Bell vs Burton, you can look it up I don't have it in front of me) that stated having a drivers licence is protected by the 14th amendment, as in many cases neccessary to secure a living... so that would mean that a State cannot pass a law that revokes it, or it CANNOT be taken away without due process under the 14th amendment... So technically, the Refuse, and lose your licence is, by process of that ruling, is a Violation of one's consitutional rights.

Forcing someone's consent to a test may not be... but taking it away without due process would be.

The argument could be made that you refuse, you go to jail, get your day in court and then lose your licence under court order and the 14th is upheld... but IMO that violates the idea that you are Innocent until proven Guilty... rather it would make you Guilty by Suspicion without Proof, and I dont like the sound of that at all.

 

[jks9199]

Don't take this as my support of drunk drivers on the road, just somthing I do find rather interesting... There was a Supreme court ruling in the 70's, (I believe it was Bell vs Burton, you can look it up I don't have it in front of me) that stated having a drivers licence is protected by the 14th amendment, as in many cases neccessary to secure a living... so that would mean that a State cannot pass a law that revokes it, or it CANNOT be taken away without due process under the 14th amendment... So technically, the Refuse, and lose your licence is, by process of that ruling, is a Violation of one's consitutional rights.

Forcing someone's consent to a test may not be... but taking it away without due process would be.

The argument could be made that you refuse, you go to jail, get your day in court and then lose your licence under court order and the 14th is upheld... but IMO that violates the idea that you are Innocent until proven Guilty... rather it would make you Guilty by Suspicion without Proof, and I dont like the sound of that at all.

A driver's license is in a kind of hybrid category. It is and has been held to be a privilige granted by the state -- but, once granted, you have certain property rights in it. It can't be taken away or suspended without respecting your due process rights. There is also a difference between administrative suspensions and judicial/disciplinary suspensions.

 

[Cryozombie]

There is also a difference between administrative suspensions and judicial/disciplinary suspensions.

Interesting. How do they differ? Is it a time period thing or somthing?

 

[Archangel M]

Most states with a "breath test or loose it" law DO have due process.

"Do it or loose it" is just a little hyperbole. Typically at arraignment the judge tells you your license is suspended pending the outcome of your case. Even then..if you refused the test and are found innocent of DWI at trial you can still have your license suspended/revoked. The judge can issue a "hardship license" which is a paper you need to carry that tells an officer when and where you are allowed to drive. Typically for employment.

Then a DMV hearing is held where the DMV decides what they are going to do....this is all due process. It isnt as simple as "refuse the test and the police take your license away". The police have nothing to do with the suspesion/revokation process.

 

[Carol]

I'm no doctor, but the tests are only going to show what they're told to show. In other words...I go to my doc for a physical. He sends me for blood work, instructing the people to test for my cholesterol and any other box he checks. The people at the lab are not going to test for the AIDS virus because they weren't told to.

Sure, so in a given situation, a panel is run to test for the metabolites of reasonably common intoxicants.

I think, if I'm understanding the article correctly here, the issue is he was forced. AFAIK, if someone refuses to submit to a test, thats the end of it. Charges are based on the persons refusal.

The article states there was a court order in place for the urine draw. My understanding is that a person cannot refuse such a situation. If my city knock on my door looking for (whatever) and they are looking for me to voluntarily let them in, I have the right to refuse them. But if they have a search warrant in hand, I must let them in.

I'm willing to give the person the benefit of the doubt, he will have his day in court. However, based on the input from Archangel, this sounds less to me like a wrong-place-wrong-time civil rights issue, and more like a guy in a boatload of legal trouble with a defense attorney challenging anything he can think of to challenge.

 

[Archangel M]

I thought that Cryo..JKS and myself covered this "drivers license right vs privilege" issue before. JKS had the best description of it here:

http://www.martialtalk.com/forum/showpost.php?p=1162341&postcount=43

It doesn't make it a right; the ruling says you have certain ownership rights in the license, once granted.

I know, it sounds like I'm splitting hairs -- but they're important hairs in a legal discussion.

Once the government grants you any sort of license, it can't arbitrarily take it away, without some form of due process as required by the Fifth Amendment to the US Constitution. The license can be seen as a form of property... but it's not the same as saying that getting the license in the first place is a right. This is why many states can, legally and constitutionally, suspend your driver's license administratively when you're arrested for DUI; it's an administrative suspension, not a punishment. The license is suspended as a function of law, and you can see those criteria if you read the laws. For example, HERE is Virginia's.

 

[jks9199]

Interesting. How do they differ? Is it a time period thing or somthing?

It's the process.

Administrative suspensions are generally a function of law; do something (get charged with DUI or refusal, or accumulate too many demerits for traffic violations) or fail to do something (provide proof of liability insurance or fail to pay child support), and your license is suspended. The suspensions often run for a very defined period. In fact, in the case of the administrative suspension for being charged with DUI, it is EXACTLY seven days for a first offense. There's no reinstatement fee for that one (there are for the others)... I've seen a return on someone who's license was valid for literally minutes following an admin suspension. There's often very little room to challenge these suspensions.

Punitive suspensions are imposed by a judge, upon a finding of guilty, or other adjudication. The term may be variable, based on the judge's assessment of mitigating factors or deals made with the prosecutor.

There's often no way to get a restricted license, as I understand it, on an administrative suspension. You can generally request one for a punitive suspension. Not that you'll necessary receive it... but you can ask!