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Discussion Starter · #1 ·
An alarming trend:

http://www.wtsp.com/news/topstories/sto ... &catid=250

a judge is on location that can force a mandatory blood test. However, no defense attorneys would be present.

Sound like a problem constitutionally, I would imagine the 4th amendment, as due process is cursory.
 

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Yeah, you try using a needle on me and see what happens. It will not be pretty, I'm diabetic, don't drink & I hate needles. I also have diabetic neuropathy in my feet so half of their field testing cannot be done on me. I'd be a golden test case for a lawyer after I got out of jail for punching a cop.
 

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Discussion Starter · #4 ·
So I have a question for any attorney on here:

What should a person who has not been drinking, but believes in his constitutional rights do when pulling up to one of these checkpoints?
 

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That cannot possibly be an accurate news report. I am not buying it. I am not going to go and research Florida law, but I do not believe that they are forcing breath tests without probable cause to believe the driver is DUI.

Then, after a refusal, a judge is there to issue the warrant.

Even then, I see the judge as less than objective, which has its own problems. He is there as part of the DUI enforcement team, not a neutral and detached magistrate. What next, judges coming along on drug buys so that they can watch the informant work and issue the warrant on the spot?
 

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i love their logic... As long as its saving lives we're legal to do it... my @#[email protected]#[email protected]#$ [email protected]#[email protected]#[email protected]!#[email protected]# [email protected]#[email protected]#[email protected]#$ [email protected]#[email protected]#[email protected]#$ [email protected]#[email protected]#[email protected]#$! [email protected]#[email protected]#$.... Judge or not I'll sue the cold living @#[email protected]#$ out of em take that to the bank. Wheres Al Sharpton when I need him..
 

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Discussion Starter · #7 ·
What next, judges coming along on drug buys so that they can watch the informant work and issue the warrant on the spot?
We should pass that one on to Holder, that could be a campaign slogan for anyone who wants to be tough on crime. :lol:

But back to the story, I don't know if it's accurate, but if it is, it's certainly scary.
 

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This a horribly written article as it does not explain the entire process, what Florida state law is on the matter, and at what point they are going before the judge for the order.

Click here:

http://chiefweems.wordpress.com/2010/06/19/dui-info/

and here:

http://chiefweems.wordpress.com/2010/07 ... o-part-ii/

for two pieces that I wrote on DUI procedure here in GA. Since I don't know FL law on the matter, I'll use the magic of the interweb and play like this is a practice in employment in GA.

Just to be clear, I have a constitutional queasiness concerning road checks and have never participated in one. The only one that I have ever approved was when looking for a fugitive when we had information that he was in a particular area.

With that out of the way, if they are stopping people at the road check, asking them to blow into a breathalyzer, and then going for a court order simply based on a refusal then we have a problem.

However, if as in GA where the state request for test(s) of blood, breath, urine, etc, comes after custodial arrest has been made based upon probable cause for DUI, seeking a court order based on PC probably pass muster.

As for a defense lawyer being present, defense lawyers are not typically present when a court order/warrant is sought.
 

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legacy38 said:
if they are stopping people at the road check, asking them to blow into a breathalyzer, and then going for a court order simply based on a refusal then we have a problem.
I doubt that is what is happening, in spite of the article plainly seeming to say so. I think the reporter missed the boat, but maybe somebody can update us on Florida law.
 

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Has anyone looked to see if one of those judges is riding a LawMaster 5000 and
is named Dredd ??

What next... Apprehend, Charge, Convict, Sentence and Execute...

Certainly save a lot of time and attorney's fees....
 

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Would not work in Georgia, however several states do allow police officers to obtain a search warrant and forcibly obtain blood as part of a dui investigation once the have probable cause. There are some who are advocating for Georgia's implied consent law to be changed to permit such testing in Georgia and the federal government has been pushing this type of enforcement behind the scenes as well.

From Lexis Nexis:
The right of refusal to submit to a state-administered test of the suspect's blood, urine, or other bodily substances is reinforced by the express language of O.C.G.A. § 40-5-67.1(d).

The word "shall' is generally construed as a word of command. The import of the language in O.C.G.A. § 40-5-67.1(d) is mandatory. Therefore, the statute plainly requires that if an individual does not consent to the designated chemical test, then no test is to be administered. This precludes any discretion on the part of the officer to attempt to obtain such testing.

Under the implied consent law, O.C.G.A. § 40-5-67.1(d), the consequences of refusing the requested testing are the possibility of admission of such refusal at a criminal trial as well as suspension of the driver's license. These legislatively-created sanctions do not include being compelled to submit to testing through the use of a search warrant. Otherwise, the right of refusal under the implied consent law would be rendered meaningless.

O.C.G.A. § 40-5-67.1(d) clearly prohibits the giving of any chemical test once the suspect refuses to submit to the requested one. It certainly makes no provision for the police to then attempt to obtain a search warrant.

The right to refuse to submit to state-administered chemical testing has been created by the Georgia general assembly. The general assembly has expressly contemplated the possibility of refusal and has provided adverse consequences, other than the involuntary taking, by warrant or otherwise, of a specimen from the non-consenting suspect. At present, the plain language of O.C.G.A. § 40-5-67.1(d) restricts the ability of law enforcement to forcibly obtain that which has been refused.
However implied consent is not read until after one is arrested for DUI, refusing to consent will not prevent one from being charged with DUI, as you will likely still be charged under 40-6-391(a)(1), Georgia's Less Safe Statute, and your refusal to consent to testing may be entered into evidence against you at trial.
 

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I've been practicing DUI law for over 10 yrs now and it just gets worse and worse. From what I remember from a DUI conference, I believe in the state of Utah the officer can actually draw blood at the scene. :shock:
 

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Discussion Starter · #14 ·
Is it strange that these are traditionally conservative states eroding our rights first?

Florida
Utah
Texas
 

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Viking said:
I've been practicing DUI law for over 10 yrs now and it just gets worse and worse. From what I remember from a DUI conference, I believe in the state of Utah the officer can actually draw blood at the scene. :shock:
Through the nose or do they just shoot you and collect it out of the puddle. :screwy:
 

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bdee said:
Is it strange that these are traditionally conservative states eroding our rights first?

Florida
Utah
Texas
Irrelevant. Just because the people in those states vote mostly conservative doesn't mean the elected officials (or appointed ones) behave and conduct themselves as such. Both sides (left and right) have now become the enemy of freedom and liberty in this country.
 

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bdee said:
Is it strange that these are traditionally conservative states eroding our rights first?

Florida
Utah
Texas
I agree, it is disturbing.
 

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Having a judge at the scene is an unintended consequence of what the SCOTUS has done, and I believe we've discussed this before, is permitting roadblocks for sobriety checks. The presence of a judge was likely not considered by SCOTUS since it may have not written the example into law.

On another note, the press release is a good way to scare the public into thinking twice about it. Let's wait and see until we get our first case.
 

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Having the judge on scene is a step up from the old days when they just signed a blank pad of warrants for the cops to fill out as needed.
 

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"If you refuse a breathalyzer"

Wait -- I thought you weren't required AT ALL to participate in roadside sobriety tests, breathalyzers, or anything else.

The only required test, as I understand it, is the one down at the station.
 
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