No Refusal DWI Laws

[Five0pd310]

I'm saying, if you have a wreck, and I think you're drunk, if I can't get a search warrant for your blood, then I can't investigate the DWI unless you tell me you're drunk. Even then, that confession is not enough for a conviction. It still takes evidence. The law as it is now allows me to investigate it by the use of a search warrant. You don't like that fact, but it is what the law allows. I can take eveidence from you after due process.

[Five0pd310]

Wait, what? Your DNA is the same, no matter if it is coming from semen, sweat, or saliva. I understand that I've only been in law enforcement for a little over 5 1/2 years, but you can match anyone's semen at one scene, to the saliva on a cigarette butt at another scene...and unless someone can point something out differently scientifically, it's going to be hard to convince me of anything otherwise.

 

And please don't tell me that some people have two different DNA codes because I'll call bravo sierra right now.

 

Study:

 

100% of blood samples could be genotyped for DNA testing. However, only 72% to 84% of saliva samples could be genotyped for DNA testing.

 

http://cebp.aacrjournals.org/cgi/content/full/16/10/2072

[applebutter]

I don't want my job to be easy. If it was, then anyone could/would do it. I just want to have a fair shake. If I can't collect evidence for a DWI, then the law has no power. It could not be enforced. Why is THIS law the only one where collecting evidence should be against the law?

 

 

 

So the rules of evidence should be different for every crime? Do you have ANY idea how many laws there are?

Because it's my blood, and my body. What makes you think this is only for DWI? That's just what we're discussing here. I didn't choose the topic, I just stumbled on it.

 

But there aren't that many crimes can be solved by a blood sample. Laws governing involuntary and invasive collection of living tissue could be pretty specific to those crimes, as they are.

 

I can't imagine there would need to be a rule for embezzlement or horse theft.

 

[Five0pd310]

I can't imagine there would need to be a rule for embezzlement or horse theft.

 

Why not? Checks and paperworks can be analyzed for DNA. Perhaps a horse has a blood stain on its saddle from the thief. Blood/DNA testing can be used to investigate all sorts of crimes; Sexual Assault, Assault, Murder, Robbery, Burglary, Theft, DWI, BWI, FWI, OCRWI, Prohibited Sexual Contact, Deadly Conduct, Criminal Mischief...should I go on?

 

 

Because it's my blood, and my body.

 

That argument can be used any number of ways. "This is my dead child's body in my trunk. It can't be searched."

 

You know as well as I do that some people believe that way. It doesn't mean everyone else does and that it should be the law. Officers should be able to get a search warrant to assist them in investigating crimes whether it be blood evidence or something else.

[buckeyefan1984]

Study:

 

100% of blood samples could be genotyped for DNA testing. However, only 72% to 84% of saliva samples could be genotyped for DNA testing.

 

http://cebp.aacrjournals.org/cgi/content/full/16/10/2072

 

Hmm, well you had better get ready to release alot of people from prison then. I'm not sure if I trust the validaty or not, but it sure did look impressive.

[applebutter]

I'm saying, if you have a wreck, and I think you're drunk, if I can't get a search warrant for your blood, then I can't investigate the DWI unless you tell me you're drunk. Even then, that confession is not enough for a conviction. It still takes evidence. The law as it is now allows me to investigate it by the use of a search warrant. You don't like that fact, but it is what the law allows. I can take eveidence from you after due process.

Why can't you investigate it if you suspect I'm drunk? If I'm hospitalized, § 724.012 and § 724.013 cover it and a warrant is not required.

 

But, in the interest of being consistent, the blood's already out. I did it by banging my head on the wheel or windshield or whatever. I don't agree that you shouldn't be able to sample the spilled blood. I think that you should.

 

The state doesn't have to remove my living tissue. If I don't want you to mop it up, I shouldn't have put it down.

[DaveTV1]

We need to understand there are little things officers look for in order to pull someone over; broken tail light, license plate light ou, no directional signal, etc. Once they have on on the side of the road, then begin the "profile" (yes I know DHCF, that's probably not what it's called). Look, listen, smell. Anything stands out, then the process begins.

 

I'm assuming an officer can give a field sobriety test if, for any reason, he suspects the driver has been drinking. DHCF or Five0 will have to elaborate on that.

 

Quite the irony in that post. Compared to what is in another. I don't have a problem with being pulled over, by an officer of the law. I understand what we pay our police officers to do. It's their job to enforce the laws of the land. I have a high respect for many of them. There are a few, that I don't. The few are the one's that make the headlines. It's the one's that are doing their jobs, that we should give commendations to.

 

 

 

 

 

[applebutter]

Why not? Checks and paperworks can be analyzed for DNA. Perhaps a horse has a blood stain on its saddle from the thief. Blood/DNA testing can be used to investigate all sorts of crimes; Sexual Assault, Assault, Murder, Robbery, Burglary, Theft, DWI, BWI, FWI, OCRWI, Prohibited Sexual Contact, Deadly Conduct, Criminal Mischief...should I go on?

 

 

 

 

That argument can be used any number of ways. "This is my dead child's body in my trunk. It can't be searched."

 

You know as well as I do that some people believe that way. It doesn't mean everyone else does and that it should be the law. Officers should be able to get a search warrant to assist them in investigating crimes whether it be blood evidence or something else.

If you must, yes. Most will have blood evidence collected in exactly the same way. It can be defined by the legistature generally for crimes needing blood evidence, or the methods can be specific to the crime. After all, the legislature came up with the crime.

 

That's not even a parallel argument. My body is not a trunk or a car. Cars are artifacts. I may own that artifact, but it's not me. My blood is not a dead child. Dead children, while not strictly illegal, may indicate that something bad may have happened. My blood, on the other hand, is safely tucked away in my body. I can take off all my clothes and dance in circles, flap my arms and bend over and moon you, and you still can't see it. Of course behavior like that makes it likely that someone will beat me up and let some out.

 

They should be able to get a search warrant if there is a provision in properly developed law to get one. But not otherwise. But they shouldn't be able to get one to bypass properly developed law.

[Five0pd310]

1) Why can't you investigate it if you suspect I'm drunk? If I'm hospitalized, § 724.012 and § 724.013 cover it and a warrant is not required.

 

2) But, in the interest of being consistent, the blood's already out. I did it by banging my head on the wheel or windshield or whatever. I don't agree that you shouldn't be able to sample the spilled blood. I think that you should.

 

3) The state doesn't have to remove my living tissue. If I don't want you to mop it up, I shouldn't have put it down.

 

1) 724.012 and 724.013 do NOT apply if the suspect is hurt. Only if they cause death or serious bodily injury to another person. (724.012a3B)

 

2) You know what else is on the floor of many DWI related wrecks? Beer. That has a tendency to skew the results of a blood test. Not to mention the cat hair, old french fries, and the wife's perfume she spilled last year. You do want accuracy, right?

 

3) The State has to remove blood to get your BAC. Simple as that.

 

If you're going to refuse a blood test, I'f sure you're going to refuse any other tests too. After all. Your only goal is to get away with the crime you committed.

[Five0pd310]

They should be able to get a search warrant if there is a provision in properly developed law to get one. But not otherwise. But they shouldn't be able to get one to bypass properly developed law.

 

That's the thing. Search warrants are not bypassing anything. They have always been obtainable through due process to set aside the rights of individuals to obtain evidence.

 

Each and every single situation should not have to be covered under a specific rule. There are BILLIONS of situations that can arise from any case because there are nearly limitless possibilities of different turns a situation can take. The law says I may obtain an evidentiary search warrant if signed by a court of record for evidence on someone's property or in someone's body. If you swallow a bag of cocaine, I can get a search warrant to obtain that too.

[applebutter]

1) 724.012 and 724.013 do NOT apply if the suspect is hurt. Only if they cause death or serious bodily injury to another person. (724.012a3B)

 

2) You know what else is on the floor of many DWI related wrecks? Beer. That has a tendency to skew the results of a blood test. Not to mention the cat hair, old french fries, and the wife's perfume she spilled last year. You do want accuracy, right?

 

3) The State has to remove blood to get your BAC. Simple as that.

 

If you're going to refuse a blood test, I'f sure you're going to refuse any other tests too. After all. Your only goal is to get away with the crime you committed.

1) I missed "other than the person" on § 724.012. I'll concede you're point. I still think i should be legal if the blood's just lying there.

 

2) He probably has less beer and perfume pooled on his forehead. That would be a better place for collection.

 

3) Then what's all this about getting someone to blow?

 

If a crime was committed, you may be right about my goal. But you can't even prove a crime was committed without a legally questionable and invasive procedure. If no crime was committed, you don't have any idea what my goal is.

 

This is fun and all, but I need sleep.

[applebutter]

That's the thing. Search warrants are not bypassing anything. They have always been obtainable through due process to set aside the rights of individuals to obtain evidence.

 

Each and every single situation should not have to be covered under a specific rule. There are BILLIONS of situations that can arise from any case because there are nearly limitless possibilities of different turns a situation can take. The law says I may obtain an evidentiary search warrant if signed by a court of record for evidence on someone's property or in someone's body. If you swallow a bag of cocaine, I can get a search warrant to obtain that too.

Only if they fit the definition of what a search warrant can be issued for. That is the argument. Judges cannot make something legal if they don't have a law to cover their actions.

 

If the judge says to remove my appendix, because that's the only place in the universe where X evidence can be found, he had better have a law to back him up. The taking of blood by force has become so common, judges have no fear of that boundary.

[Five0pd310]

1) I missed "other than the person" on § 724.012. I'll concede you're point. I still think i should be legal if the blood's just lying there.

 

2) He probably has less beer and perfume pooled on his forehead. That would be a better place for collection.

 

3) Then what's all this about getting someone to blow?

 

If a crime was committed, you may be right about my goal. But you can't even prove a crime was committed without a legally questionable and invasive procedure. If no crime was committed, you don't have any idea what my goal is.

 

This is fun and all, but I need sleep.

 

1) It's not legal. It has to come from a sterile, non-contaminated source.

 

2) All it takes is one drop of beer in a vial of blood to turn someone's BAC reading from 0.000 to an unbelievably high percentage. I bet if he spilled it on the carpet, he spilled it on his face too.

 

3) If he blows then it was voluntary. This entire thread is moot if that were the case.

 

"If a crime was committed, you may be right about my goal. But you can't even prove a crime was committed without a legally questionable and invasive procedure. If no crime was committed, you don't have any idea what my goal is."

 

So you just said what I said. Without the search warrant, the DWI can not be investigated. Take the law off the books.

[applebutter]

Each and every single situation should not have to be covered under a specific rule. There are BILLIONS of situations that can arise from any case because there are nearly limitless possibilities of different turns a situation can take. The law says I may obtain an evidentiary search warrant if signed by a court of record for evidence on someone's property or in someone's body. If you swallow a bag of cocaine, I can get a search warrant to obtain that too.

Why? There's a specific rule to obtain a search warrant. There is a specific rule to allow the forced sampling of blood without a warrant in some cases.

 

If I swallow a bag of cocaine, and you see me swallow it, then I think a search warrant is completely appropriate.

 

The law does not say you may obtain an evidentiary search warrant if signed by a court of record just because a judge thinks it's a capital idea. It has to fit within the framework defined specifically by the law.

 

I don't really understand why you've launched on this billion types of crime argument. I don't really think blood evidence has to be treated differently for different crimes. If you've interpretted something I said to mean that, point it out. Either I'll clarify what I said, or I'll apologize and retract the statement.

 

If you have sufficient evidence to get a warrant under the rules passed by the legislature, then you can get one. Our argument, regardless of what you're trying to say it is, is about the granting of warrants for blood in a specific instance that probably does not meet those legal requirements.

 

I'm not arguing for drunk driving rights, or rapist's rights or whatever. I'm arguing for my rights under due process. You may feel that if you obtain a warrant, you're giving consideration to due process. I'm saying that there are warrants that are not legal. And, if such a warrant is granted, due process is not being observed. Further, I'm saying that I believe that blanket warrants allowing the forced taking of blood from any driver based on the opinion of a single police officer is such an illegal warrant, and should not be allowed.

 

I don't drink and drive. Period. This specific flavor of what I perceive to be abuse of power will never convict me. But the implications of a court system that regularly circumvents legitimate law will effect me eventually, will effect my family, and will even effect you.

[applebutter]

1) It's not legal. It has to come from a sterile, non-contaminated source.

 

2) All it takes is one drop of beer in a vial of blood to turn someone's BAC reading from 0.000 to an unbelievably high percentage. I bet if he spilled it on the carpet, he spilled it on his face too.

 

3) If he blows then it was voluntary. This entire thread is moot if that were the case.

 

"If a crime was committed, you may be right about my goal. But you can't even prove a crime was committed without a legally questionable and invasive procedure. If no crime was committed, you don't have any idea what my goal is."

 

So you just said what I said. Without the search warrant, the DWI can not be investigated. Take the law off the books.

Well, what if you don't suspect that I've been drinking, and I have? I think you should just have the phone ready, and a judge waiting to fill the warrant out anytime any police officer speaks to anyone. After all, if I'm drinking and driving, and my blood alcohol level exceeds 0.08, a crime has been committed, even if I don't look drunk.

 

That way, you can investigate a crime even when you don't suspect one has been committed.

 

I think it would be a little excessive to remove the DWI laws because a pretty tight set of circumstances don'w allow you to get an automatically granted warrant to remove blood. Especially when you have other evidence.

[Guest bleeds]

I think I'm missing something. Your original argument was that it is unconstitutional to collect personal evidence that can incriminate yourself (post # 122 paragraph 3). Are you changing that now to you think it is unconstitutional because it is taken with a pin #### instead of a pair of tweezers? Should our laws be set up to appease your opinion an only your opinion, because most people I know disagree with you on this. Believe it or not, some people think DWI laws in general should not exsist since it is their right to drink and drive, and any limitation thereof is a violation of their rights. That they have only broken the law if someone gets hurt. Should we form the law to fit their wishes?

 

 

Yes, you are missing that. My questsions were directed at DHCF as it appeared they were contradictory. I'm not sure where you got all that, or came up with the insinuatiions you've made, but I certainly didn't say those things.

 

I said DNA results could be obtained by taking non-living tissue (hair). DHCF disagreed, but his explanation seemed to have verified my comment. The rest came from what would seem to be a very vivid imagination on your part.

[Guest bleeds]

It's not based on the fact that a guy showed up at a road block. It is based on the fact that he is suspected of driving drunk. If I can't convince a judge that he is intoxicated, then I don't get a search warrant.

 

If the cells in spit are not living tissue, then neither are cells from blood drawn from a vein.

 

 

Just wondering Five0, do you ever use the explanation "...and he presented with a strong smell of alcohol..."?

[camuchs]

First let me say that I am thankful that "parents" son was not injured.

Second, Bleeds and AB, your doing a good job :thumbsup: so I'm not here to interrupt. (serious, no sarcasm)

 

But I wonder if some would toss the second amendment out the window if his/her son was in a mall when a shooting spree broke out?

 

These laws are there in the interest of public safety. With that said,

 

"Those who sacrifice freedom for safety deserve neither"..........Ben Franklin[paraphrased]

[Guest bleeds]

That was going to be my next point. You're not always going to be able to get a DNA match for semen from a cheek swab, or vice versa.

 

 

Hmmm. Interesting. We're hearing everyday, it would seem, of another inmate who was wrongfully accused and convicted of rape/murder/etc, being released from prison due to the diligence of Barry Scheck and modern DNA technology.

 

In the rape cases, how are they being exhonerated if their DNA isn't showing up in trace evidence (hair, semen, etc) in crime scene evidence?

[Guest bleeds]

Why not? Checks and paperworks can be analyzed for DNA. Perhaps a horse has a blood stain on its saddle from the thief. Blood/DNA testing can be used to investigate all sorts of crimes; Sexual Assault, Assault, Murder, Robbery, Burglary, Theft, DWI, BWI, FWI, OCRWI, Prohibited Sexual Contact, Deadly Conduct, Criminal Mischief...should I go on?

 

 

 

 

That argument can be used any number of ways. "This is my dead child's body in my trunk. It can't be searched."

 

You know as well as I do that some people believe that way. It doesn't mean everyone else does and that it should be the law. Officers should be able to get a search warrant to assist them in investigating crimes whether it be blood evidence or something else.

 

 

Pretty weak Five0. The dead chiid thing. Pretty weak.

 

As for the DNA on the paperwork, I would ask that a consensus be reached on this and stuck with. First we're told it's blood and blood only. End of story. Then we're told the complete opposite, that DNA can be retrieved from other sources, which we knew. Then we're told it's unreliable. Now we're being told you can get it off paperwork.

 

Can we get a definitive answer on this? Because if it is available through other sources, your arguement for the need, nay "right" to my blood is shattered.

[Guest bleeds]

If you're going to refuse a blood test, I'f sure you're going to refuse any other tests too. After all. Your only goal is to get away with the crime you committed.

 

 

Typical cop mentality. I refuse a test so I'm guilty and trying to cover that. Innocent until investigated, huh Five0?

 

No. My goal would be to preserve my rights. Rights. Remember those. Skew it as you would. The Constitution offers me those rights. It is judges who have changed the meaning and intent of the framers of the COTUS to make it easy to get convictions.

 

DHCF even said it. Other sources of DNA are available. But they make it very difficult to obtain a DNA determination. Blood makes it easier.

 

Are we throwing out the rights of the individual for the sake of ease and comfort of the cop or the system? Save your brain cells. The answer to that is "Yes".

[Guest bleeds]

First let me say that I am thankful that "parents" son was not injured.

Second, Bleeds and AB, your doing a good job :thumbsup: so I'm not here to interrupt. (serious, no sarcasm)

 

But I wonder if some would toss the second amendment out the window if his/her son was in a mall when a shooting spree broke out?

 

These laws are there in the interest of public safety. With that said,

 

"Those who sacrifice freedom for safety deserve neither"..........Ben Franklin[paraphrased]

 

 

Why would we? The Seccond Amendment is my best weapon, outside the sidearm it allows me to carry. It allows me to keep and bear arms. Texas Concealed Carry laws allow me to carry that weapon where ever I go, with a few exceptions. In fact, if you take the 2nd Amendment at face value (which most do not sadly), we don't need concealed carry laws.

 

"...keep and BEAR arms." In my mind, that means what it says. But through the work of activist judges, it is a mere shadow of what it was intended to mean.

 

If I am carrying within the laws of the land, and someone starts shooting in a mall, and I am there and able, I can end that almost as quickly as it started.

 

BTW, if you ever see me (just for the purposes of making my point since you probably don't know me), be aware I may be armed and well within my rights.

 

BTW, this arguement is old. We've done it many, many times now. Those of us who carry according to the law always win.

[Five0pd310]

Typical cop mentality. I refuse a test so I'm guilty and trying to cover that. Innocent until investigated, huh Five0?

 

No. My goal would be to preserve my rights. Rights. Remember those. Skew it as you would. The Constitution offers me those rights. It is judges who have changed the meaning and intent of the framers of the COTUS to make it easy to get convictions.

 

DHCF even said it. Other sources of DNA are available. But they make it very difficult to obtain a DNA determination. Blood makes it easier.

 

Are we throwing out the rights of the individual for the sake of ease and comfort of the cop or the system? Save your brain cells. The answer to that is "Yes".

 

I don't feel that blood retrieval is a violation of your rights if done with due process of the law, so your argument doesn't convince me. And the scenario was assuming that he was intoxicated while driving and had a collision. That's why I said he wants to get away with a crime. No, I don't think everyone who refuses a test is guilty. It makes me suspicious, of course, but I do not assume they are guilty.

[Five0pd310]

Why would we? The Seccond Amendment is my best weapon, outside the sidearm it allows me to carry. It allows me to keep and bear arms. Texas Concealed Carry laws allow me to carry that weapon where ever I go, with a few exceptions. In fact, if you take the 2nd Amendment at face value (which most do not sadly), we don't need concealed carry laws.

 

"...keep and BEAR arms." In my mind, that means what it says. But through the work of activist judges, it is a mere shadow of what it was intended to mean.

 

If I am carrying within the laws of the land, and someone starts shooting in a mall, and I am there and able, I can end that almost as quickly as it started.

 

BTW, if you ever see me (just for the purposes of making my point since you probably don't know me), be aware I may be armed and well within my rights.

 

BTW, this arguement is old. We've done it many, many times now. Those of us who carry according to the law always win.

 

If my son were in a mall where a shooting was going on, then the shooter is not worried about whether or not he has the right to possess that gun. He's going to have it regadless. At that point my thinking would be that I wish every good guy at the mall had a gun. I'm with BLeeds on this.

[DieHardCubFan]

If they want to, the legislature can even give a judge the power to determine whether it's warranted.

 

 

AB, my friend, they (the legislature) do...it is called the Texas Code of Criminal Procedure, Chapter 18 (Search Warrants).