Warrantless Blood Draw, The Ultimate Violation of Your 4TH Amendment Right
On January 9, 2013, the United States Supreme Court heard oral arguments in a critical area of DUI litigation. The case of Missiouri v. McNeeley (No. 11-1425) concerns a citizens Fourth Amendment rights and guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. In essence, McNeely involves a balancing test between the State / Officer’s ability to force an individual charged with DUI to submit to a blood draw if they refuse the breath test. Blood Alcohol Concentration (BAC) levels in the human body at the approximate rate of .02 BAC per hour. Therefore, the State’s argument is that if an offender refuses to submit to a breath test, the evidence of the offender’s alleged intoxication is dissipating every minute. They feel that the immediacy of their need to secure the BAC evidence outweighs a citizen’s rights to freedom from unreasonable searches and seizures without a warrant. The police have the ability to seek a warrant currently to obtain a blood draw, however that requires them to seek a warrant and have a judge sign off on the issuance of it. This step is to ensure that the probable cause the officer had for the arrest was judicially sanctioned. The police want to streamline this process and shove a needle in a citizens arm to take evidence without affording those sacred, protected and core rights. We feel that this request of the US Supreme court would be a landslide decision that will rip through our countries courts like a wildfire.
The impact of DUI Defense litigation could change forever if warrant-less blood draws are allowed. The impact of a decision allowing such a practice would result in the impedance of not just a citizen’s fourth (4th) amendment rights but also would severely alter the intent of the Fifth (5th) Amendment as well. The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves. The common statement pleading the fifth or to “plead the Fifth” is a refusal to answer a question because the response could form self incriminating evidence. Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions. It could also be viewed as a citizens right not to submit a breath sample on the grounds that it too could be looked at as a form of self-incrimination. The landmark case or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), established the Miranda Warning as follows: A citizen has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.
If you refuse to provide a breath sample currently in the great state of Florida it is a violation of Florida’s implied consent law which states that any person who accepts the privilege of operating a motor vehicle within the state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test. These tests include, but are not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. This refusal leaves the state without critical evidence that it needs to prosecute an individual for DUI. If the US Supreme court rules in favor of the state, your ability to refuse to provide evidence that would incriminate you would fall by the wayside in favor of the state.
The attorneys at Daniels and Hannan work hard to protect your constitutional rights and aggressively defend our clients against the allegations that are brought forth by the State. If you have been arrested for DUI in Sarasota, Manatee, Pinellas or Hillsborough counties for a violation of 316.193, Florida Statutes, you have rights. Contact our office today at (941) 932-8007 for a free case evaluation today. Our attorneys are active members of the National College for DUI Defense. Follow us on Twitter at FL DUI ATTORNEY and DH LAW FIRM