Every driver who refuses to blow strapped to table, put in headlock, blood drawn

[Meezer]

That is implied consent, not excessive force.

Government agents are not allowed to use excessive force in order to enforce a search or seizure. E.g. the Conwell case where the officer choked the defendant to prevent him from swallowing drugs. Choking someone to recover drugs is an unreasonable method to seizure contraband.

As well, I believe it will be argued here that strapping someone to a table, especially those that consent (!!!), is an unreasonable search and seizure.

Refusal to submit to chemical tests or test results in prima facie evidence of intoxication; duties of arresting officer
Sec. 7. (a) If a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person's driving privileges.



So since the penalty for refusal of any testing is automatic suspension of DL, then why do the LEO's feel the need to act like a bunch of Nazi thugs ???

 

[CathyInBlue]

The "chemical tests or test" are not the roadside field sobriety circus monkey acts. Those tests are the ones done in a lab/hospital. The ones whose evidence can be admitted in court. You can refuse the roadside monkey act all you want and insist that they waste their time taking you to the hospital for a blood draw by a licensed phlebotomist without fear of jeopardizing your license to drive.

 

[MikeDVB]

^^^ Exactly to the Highlighted part.

Indiana code has this covered as well.

Link to whole section Indiana Code 9-30-6

some counties add additional code to this but this covers the entire state. If you don't drink and drive you have nothing to worry about as there will be no probable cause.

While you're at it - let them search your car... You have nothing to worry about as there will be nothing to find, right?

How about they go to your house and search it... No problem with that right? I mean they aren't going to find anything, right?

What is the point of constitutional protection from unreasonable search and seizure if we're forced into being searched [Breathalyzer or Blood Draw] without probable cause? It is not ok just because there is nothing to find. The end does not justify the means.

Next you'll say that you have no issues with officers pulling people over just to see if they are licensed and the license is valid? You have nothing to worry about because you are licensed and it's valid, right?

The erosion of our rights is due in large part to those that believe, "It's ok - it isn't happening to me," or the "I'll waive my rights, they won't find anything anyways," type of people.

 

[j706]

While you're at it - let them search your car... You have nothing to worry about as there will be nothing to find, right?

How about they go to your house and search it... No problem with that right? I mean they aren't going to find anything, right?

What is the point of constitutional protection from unreasonable search and seizure if we're forced into being searched [Breathalyzer or Blood Draw] without probable cause? It is not ok just because there is nothing to find. The end does not justify the means.

Next you'll say that you have no issues with officers pulling people over just to see if they are licensed and the license is valid? You have nothing to worry about because you are licensed and it's valid, right?

The erosion of our rights is due in large part to those that believe, "It's ok - it isn't happening to me," or the "I'll waive my rights, they won't find anything anyways," type of people.

So do you really think a judge is going to sign a BD warrant when there is no PC?

 

[MikeDVB]

So do you really think a judge is going to sign a BD warrant when there is no PC?

If the draw is under the order of a warrant signed by a judge - that's an entirely different matter for discussion unless I'm misunderstanding this thread/the issue.

 

[CathyInBlue]

No actual PC or no manufactured PC? Just because a driver not obviously lacking in his faculties declines a pocket breathalyzer test does not give rise to actual PC, but I can see people of lacking intellectual or moral fiber claiming that it does. This is manufactured PC.

 

[Liberty Sanders]

While you're at it - let them search your car... You have nothing to worry about as there will be nothing to find, right?

How about they go to your house and search it... No problem with that right? I mean they aren't going to find anything, right?

What is the point of constitutional protection from unreasonable search and seizure if we're forced into being searched [Breathalyzer or Blood Draw] without probable cause? It is not ok just because there is nothing to find. The end does not justify the means.

Next you'll say that you have no issues with officers pulling people over just to see if they are licensed and the license is valid? You have nothing to worry about because you are licensed and it's valid, right?

The erosion of our rights is due in large part to those that believe, "It's ok - it isn't happening to me," or the "I'll waive my rights, they won't find anything anyways," type of people.

No one is talking about unreasonable search and seizure.

You have a right to not be subjected to UNREASONABLE search and seizure.

You have NO protection from REASONABLE search and seizure.

If a LEO has reasonable cause to believe that you are DUI and you refuse to comply with the agreement you made with the state to submit to a breath test, the officer will get a search warrant and you will be compelled to provide blood.

This is a REASONABLE search and seizure made in compliance with the Fourth Amendment and is a textbook case of the government doing things the proper way.

The fact that you don't like it doesn't make it unreasonable.

 

[j706]

If the draw is under the order of a warrant signed by a judge - that's an entirely different matter for discussion unless I'm misunderstanding this thread/the issue.

This is a fairly long thread but the issue at hand is Georgia strapping folks down for blood draws after getting a warrant and doing so whether or not they are resisting or not. That practice is excessive and unreasonable IMO.

 

[KG1]

No one is talking about unreasonable search and seizure.

You have a right to not be subjected to UNREASONABLE search and seizure.

You have NO protection from REASONABLE search and seizure.

If a LEO has reasonable cause to believe that you are DUI and you refuse to comply with the agreement you made with the state to submit to a breath test, the officer will get a search warrant and you will be compelled to provide blood.

This is a REASONABLE search and seizure made in compliance with the Fourth Amendment and is a textbook case of the government doing things the proper way.

The fact that you don't like it doesn't make it unreasonable.

I think the question is, and I believe Kirk has touched on it. How much "compelling' in obtaining the blood draw would be considered reasonable seizure?

 

[Liberty Sanders]

No actual PC or no manufactured PC? Just because a driver not obviously lacking in his faculties declines a pocket breathalyzer test does not give rise to actual PC, but I can see people of lacking intellectual or moral fiber claiming that it does. This is manufactured PC.

Cathy, a suspected DUI's refusal to take a test is something that is going to take place (assuming of course that the officer is properly trained and is acting ethically) AFTER PC has been established.

As I pointed out in a previous post, LEO's cannot go fishing for DUI offenders. They cannot just start pulling over cars in the hope that one of them will be DUI. There must be displayed driving behavior indicative of impaired driving that the officer can articulate in court.

PC must come first, THEN any form of testing. An officer who tries to force someone to submit to testing in the absence of PC is making an unlawful arrest.

 

[MikeDVB]

The fact that you don't like it doesn't make it unreasonable.

No, it was just a misunderstanding on my part that this was happening without a warrant.

I can't say that I like the idea of it, but if due process is followed there's not a whole lot that can be said against it except for the amount of force used and whether one feels it's justified or not.

 

[Liberty Sanders]

I think the question is, and I believe Kirk has touched on it. How much "compelling' in obtaining the blood draw would be considered reasonable seizure?

Kg, I hear you on this and I made mention of how I would handle this situation in an earlier post.

This is a VERY gray area. The Constitution is silent on this issue. It says the government can obtain search warrants. It says nothing about the mechanics of serving them.

I know of cases in which law enforcement agents having a search warrant for any number of easily hidden objects have utterly destroyed buildings in conducting a search, ripping up floors, knocking down walls and rendering the building unliveable in the process. I don't know of any agency that has ever been sanctioned for this. A search warrant says you can SEARCH. The only limitation lies in physical possibilities. If you are searching for a stolen refrigerator you are not empowered to open dresser drawers to look for it. But if you're looking for a diamond? The courts have not seen fit to hamper LEOs in how they conduct such searches.

If a LEO obtains a search warrant for blood, he is empowered to take it. If a suspect utterly refuses to cooperate the officers duty is unaffected...he STILL has to get the blood sample. The Founding Fathers didn't foresee this problem and left us no instructions.

Does this mean can they can beat the suspect unconscious with ball bats and then soak the blood up off of the floor? I don't think so nor do I think any court would sanction such a procedure. The REASONABLE approach to be taken in a case like this I think would be pretty much the same as that concerning a LEO's use of force in ANY situation, which is that an officer can use that degree of force necessary to accomplish a legal goal, AND NO MORE.

To me that would be using restraining force (controlling the suspect's movements by superior numbers and strength) NOT punching, kicking, or aggressive actions. If the suspect's actions escalate to the point that officers are being assaulted then force would escalate in accordance with established law on officer use of force.

The fact is that once a search warrant has been issued to take a suspect's blood, that suspect does NOT have a legal right to refuse to supply it. A suspect who does so has to take his chances.

Everyone here knows that citizens have rights. Fewer want to admit the the government has powers, one of which is the right to use coercive force against citizens who are acting aggressively against other citizens.

A person who drives drunk is committing an act of aggression against his fellow citizens, and the government has a right to exercise its coercive powers to stop them.

 

[Kirk Freeman]

I think the question is, and I believe Kirk has touched on it. How much "compelling' in obtaining the blood draw would be considered reasonable seizure?

Think of it as a scope issue. If the police exceed the scope of force necessary then they convert a reasonable search into an unreasonable one (or think of it like they step out of bounds).

This is a VERY gray area.

We say "fact sensitive".

It says nothing about the mechanics of serving them.

Well, the federal Supreme Court and the Indiana Supreme Court have said plenty about it.

Excessive force=unreasonable search and seizure.

 

[MikeDVB]

We say "fact sensitive".

While I may not be a lawyer, I am going to put this one in the memory bank and try to find some situation to use it...

 

[Kirk Freeman]

Suggestions:

With the wife/girlfriend when she decides to call and you are "out of bounds":

"So, where are you now and who are you with?"

"Sweetheart, that is FACT SENSITIVE."

 

[MikeDVB]

With the wife/girlfriend when she decides to call and you are "out of bounds":

I don't go 'out of bounds' so I can't foresee this situation arising.

That said, I will find a way - and when I do, I will make sure and let you know .

 

[Kutnupe14]

^^^ Exactly to the Highlighted part.

Indiana code has this covered as well.

Link to whole section Indiana Code 9-30-6

some counties add additional code to this but this covers the entire state. If you don't drink and drive you have nothing to worry about as there will be no probable cause.

Right, in effect the judge is enforcing a contract. Now, if these are simply BDs based on a person who simply won't comply with a checkpoint, then that's an issue.

 

[GodFearinGunTotin]

Suggestions:

With the wife/girlfriend when she decides to call and you are "out of bounds":

"So, where are you now and who are you with?"

"Sweetheart, that is FACT SENSITIVE."

.....Annnnd that wouldn't be the only sensitive thing when you got home.

 

[Meezer]

The fact is that once a search warrant has been issued to take a suspect's blood, that suspect does NOT have a legal right to refuse to supply it.

This doesn't make any sense. According to IC:


Refusal to submit to chemical tests or test results in prima facie evidence of intoxication; duties of arresting officer
Sec. 7. (a) If a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person's driving privileges.


So if I'm reading the above IC correctly, if the suspect refuses, it means the suspect goes to jail, his/her vehicle gets impounded & the suspects DL is suspended for DUI.

So why the escalation to the headlocks, beatings, etc., for a BD when
it's already a done deal once the suspect refuses?????

 

[Kirk Freeman]

If you got a warrant you might as well come on in.

"But if you got a warrant, I guess youre gonna come in."