QUESTION
Was my Fourth Amendment violated if CHP wanted to take my blood?
Asked on Apr 19th, 2013 on DUI/DWI - California
More details to this question:
CHP so they wanted to take my blood and I ask if I didn't they would suspend my license so I did can they do that to me was that a threat and was my fourth amendment violated I did smoke 2 hours ago but was able to drive fine.
5 ANSWERS
Criminal Defense Attorney serving Oakland, CA
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Kapsack & Bair, LLP
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I assume your question relates to the new U.S. Supreme Court case, McNeely v.Missouri, which held that a blood draw may not be taken without a warrant simply because the evidence (alcohol) may be dissipating. In California you agree to provide a sample of your blood or breath when you get a drivers license, if you choose to not provide a sample of your blood or breath you may be prosecuted for a "refusal." Prior to McNeely law enforcement could simply hold you down and do a "forced" blood draw, McNeely seems to support the idea that before a "forced" blood can occur, law enforcement must make an effort to get a warrant or demonstrate why a warrant was not available in a timely fashion. It seems quite likely that law enforcement will simply stop taking blood and allow prosecutors to proceed with refusals based solely on the law of implied consent and the evidence supporting the allegation that the driver was impaired. If the officer thought you were under the influence, under implied consent he could ask you to provide a blood sample, once you refused he could either try to get a warrant or simply make the refusal box, a refusal carries more significant suspension and jail if convicted regardless of whether there is a chemical test.
Answered on Apr 23rd, 2013 at 8:48 PM
Michael J. Breczinski
Well driving is a privilege. Thus the legislature in every place has passed laws that if the cops have probable cause and you refuse to give a sample, then they can suspend your license.? You can fight this on the issue of probable cause.
Answered on Apr 23rd, 2013 at 2:10 AM
Litigation Attorney serving Charleston, SC
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The Falk Law Firm, LLC
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Possibly. I would need to know more of the specific facts, but there is a possibility that you had your 4th amendment rights violated. You should contact a criminal defense lawyer to discuss this matter in detail.
Answered on Apr 23rd, 2013 at 1:12 AM
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In Colorado, there are express consent laws. This means that the DMV (not court) will suspend your license for one year for refusing a blood or breath test if the officer has probable cause to believe that you were driving under the influence of alcohol and/or drugs. The Fourth Amendment protects you from unreasonable search and seizure without a warrant - if the police force a blood draw without a warrant that is a per se violation of your rights. So, the cop was right in that if you would have refused the DMV may suspend your license for up to a year- if the officer had probable cause to request the test. This is a rather low standard. If you are being charged with DUID-you should retain a good defense lawyer in your area to fight both the court and DMV actions. A lower level of THC may not rise to the level of impaired as required by statute.
Answered on Apr 23rd, 2013 at 1:11 AM
Nope because you finally consented. 4th Amendment won't help you unless it was a forced-blood-draw (ie. they tie you down and stick a needle in you without you consenting).
Answered on Apr 23rd, 2013 at 12:08 AM