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Can Police Force Drunken Driving Suspects To Take Blood Test?
NPR ^ | 09 Jan 2013 | Nina Totenberg

Posted on 01/09/2013 10:39:07 AM PST by Theoria

The U.S. Supreme Court hears arguments Wednesday in a case testing whether police must get a warrant before forcing a drunken driving suspect to have his blood drawn.

The court has long held that search warrants are ordinarily required when government officials order intrusions into the body — intrusions like drawing blood from an unwilling individual. The court has reasoned that such intrusions amount to a bodily search and thus are covered by the Fourth Amendment's warrant requirement. But the court has also ruled that there are exceptions to that requirement in what are called exigent situations — emergencies. And Wednesday's case tests how broad the definition of an emergency may be.

The case began in Missouri in 2010. Tyler McNeely was driving 56 mph in a 45 mph zone at 2 a.m., when he was stopped by state highway Patrolman Mark Winder. The officer administered four field sobriety tests. McNeely failed all of them, and when he refused to submit to a Breathalyzer test, he was arrested and taken to a hospital, where he also refused to allow his blood to be drawn. Although Winder had gotten warrants in the past without difficulty in such situations, he did not try to get one this time. He ordered the blood drawn. It showed a blood alcohol level well above the legal limit, and McNeely was charged with driving under the influence.

At trial, though, the judge threw out the blood test because it was obtained without a warrant. The Missouri state Supreme Court unanimously agreed, noting that there were no events that would have interfered with getting a warrant — there was no accident to investigate, no injury requiring medical attention, and a judge was on call to review a warrant application quickly. The state court said that under these circumstances, there was no justification for failing to get a warrant before forcing an unwilling suspect to have his blood drawn.

The state of Missouri appealed, contending that because alcohol dissipates in the bloodstream over time, that alone constitutes an emergency situation that justifies forcing a blood draw without a warrant.

"Our main point is that under the exigent circumstances exception, when we know for certain that important, reliable, evidence is in the process of being destroyed, a search warrant is not necessary because, during any delay to obtain a search warrant, you are allowing the best evidence of the crime to dissipate and be destroyed," says John Koester, assistant prosecuting attorney for Cape Girardeau, Mo. The state also maintains that in these circumstances, a warrantless blood draw is "a minimal intrusion."

But Steven Shapiro of the American Civil Liberties Union, representing McNeely, counters that alcohol dissipates over a matter of hours, and that here, where there was no emergency that could have interfered, a warrant could have been quickly obtained.

The arresting officer testified that he had never had problems getting warrants in the past. In fact, he testified that the only reason he didn't get a warrant was that he had seen an opinion from the state prosecutor's office saying that they were unnecessary in routine cases. That contradicted an opinion from the county attorney's office and a state police legal advisory.

The ACLU's Shapiro explains the reason for the warrant this way: "For the police to order medical professionals to put a needle into your arm and take blood is a fairly significant ... intrusion on your privacy and your bodily integrity. And that ought not to be a decision that the police are making without review by a judge."

Indeed, he observes, warrants can and were obtained in other cases in a half-hour or less, and a majority of states do require such warrants. He also notes that McNeely's refusal to agree to the blood test can have adverse consequences for the accused, since the refusal can be used as evidence against him at trial.

The Obama administration, however, backs up Missouri in its contention that the need for quick blood-alcohol testing outweighs any individual privacy interest. Time, the government argues, is of the essence, since a person's blood alcohol starts to dissipate after he or she stops drinking.

The government notes that in 2010, more than 10,000 people were killed in motor-vehicle accidents that involved alcohol-impaired drivers. That is one death every 51 minutes.


TOPICS: Crime/Corruption; Government; US: Missouri
KEYWORDS: constitution; missouri; supremecourt; warrant
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1 posted on 01/09/2013 10:39:19 AM PST by Theoria
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To: Theoria

‘California weed’ apparently.


2 posted on 01/09/2013 10:46:52 AM PST by sickoflibs (Losing to O is NO principle!)
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To: Theoria

They will allow the ‘search’ without consent.

After their earlier upholding of HealthControl, the United States is a totalitarian state as defined in conventional political science. The rest will follow.

http://www.thefreedictionary.com/totalitarian+state


3 posted on 01/09/2013 10:47:14 AM PST by Psalm 144 (Capitol to the districts: "May the odds be ever in your favor.")
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To: Theoria

Make em get a warrent. If the police feel they don’t need one for a DUI case, they may expand it to other areas where a warrent is now required.


4 posted on 01/09/2013 10:50:30 AM PST by jaydubya2
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To: Theoria

Truly it’s immaterial in almost every place I am aware of, because they have laws on the books if you don’t give a sample, automatic penalties and suspensions kick in, so it’s not like they are going to be able to somehow skirt negative consequences if they don’t give a sample.


5 posted on 01/09/2013 10:50:45 AM PST by Secret Agent Man (I can neither confirm or deny that; even if I could, I couldn't - it's classified.)
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To: Theoria

Isn’t the failure of 4 field sobriety tests enough?


6 posted on 01/09/2013 10:51:16 AM PST by stuartcr ("I upraded my moral compass to a GPS, to keep up with the times.")
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To: Theoria

The penalty for not taking the test is usually worse than failing the test....at least for the first offense.


7 posted on 01/09/2013 10:56:18 AM PST by AppyPappy (You never see a massacre at a gun show.)
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To: Theoria

Here in Washington State a refusal to perform routine roadside tests or submit to a blood test automatically causes your drivers license to be suspended for six months.


8 posted on 01/09/2013 10:56:49 AM PST by beelzepug ("Why bother creating wealth when you can just redistribute it?")
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To: Theoria

In fact you can’t force one. There are legal solutions to make people agree to a test. For example, in Russia refusal to take a sober test is an offence itself, punished by suspension of driver’s license for a year or so.


9 posted on 01/09/2013 10:58:02 AM PST by cunning_fish
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To: Theoria

Every state has “implied consent” laws - when you get a drivers’ license, if you’re arrested for drunk/drugged driving, you give consent to have a breath/blood/urine test administered to determine if you were intoxicated. You have no legal right to condition taking the test on your lawyer showing up. Driving is a privilege and not a constitutional right.


10 posted on 01/09/2013 10:58:27 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: Theoria

Here in Florida, you can refuse the blood test, but you have to give up your license at that point........


11 posted on 01/09/2013 10:59:29 AM PST by Red Badger (Lincoln freed the slaves. Obama just got them ALL back......................)
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To: Theoria

Here in Indiana the police routinely get a warrant for a forced blood draw if someone refuses the breath test. It only takes about 40 minutes.


12 posted on 01/09/2013 11:04:27 AM PST by circlecity
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To: goldstategop

I agree on implied consent, but I assert that the implied consent only applies to retention of the right/privilege of driving.

There is still such a thing as the 5th amendment, and you cannot remove that without 3/4 of the states ratifying an amendment to repeal it. IOW, you can refuse, but they can’t forcibly take your blood. If you refuse, they can take away your privilege. If it is practiced to the contrary, then we are subject to future diminuation of other rights willy-nilly in the name of “this or that [usually, the ‘chilrun’]”


13 posted on 01/09/2013 11:06:28 AM PST by Gaffer
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To: AppyPappy

If you can buy a decent DUI lawyer the best thing is to say and do nothing. Let them take you to jail. Be polite, even helpful, but say nothing.

When the D.A. sees that the video shows you not admitting to drinking and that you would not volunteer to any tests (any) then there is very little evidence to convict. Often, the D.A. will either reduce the charge or throw it out.

It will cost money, but less money than it would otherwise. A DUI is a big problem whether you’ve been drinking - or not (as was the case with my wife, no joke). Once the officer pulls you over and decides that you have been drinking and driving it’s time to just shut up and wait for the ride to the station - then call that lawyer.

“Anything you say or do may be used against you in a court of law.”


14 posted on 01/09/2013 11:06:42 AM PST by Noamie
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To: Secret Agent Man

Nope..not really

DUI lawyers recommend not doing the field sobriety tests and or breathalyzer....ESP if you have prior DUI convictions. Harder to convict...and....most states usually give some type of restricted license during the automatic suspension period

In Florida...half of all DUI arrests end up with no conviction


15 posted on 01/09/2013 11:06:58 AM PST by SeminoleCounty (Fiscal Conservatives are Neither)
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To: Secret Agent Man

Nope..not really

DUI lawyers recommend not doing the field sobriety tests and or breathalyzer....ESP if you have prior DUI convictions. Harder to convict...and....most states usually give some type of restricted license during the automatic suspension period

In Florida...half of all DUI arrests end up with no conviction


16 posted on 01/09/2013 11:07:36 AM PST by SeminoleCounty (Fiscal Conservatives are Neither)
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To: circlecity

What happened to the 5th Amendment and not being forced to give testimony against yourself?


17 posted on 01/09/2013 11:07:50 AM PST by massgopguy (I owe everything to George Bailey)
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To: circlecity

What happened to the 5th Amendment and not being forced to give testimony against yourself?


18 posted on 01/09/2013 11:08:13 AM PST by massgopguy (I owe everything to George Bailey)
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To: Theoria
While it is immaterial whether you take any tests, it is the observations that make the case. This may be in line with busting the drugged up fools and how that is viewed in the lower courts.
19 posted on 01/09/2013 11:11:04 AM PST by Domangart
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To: goldstategop
'you give consent to have a breath/blood/urine test administered to determine if you were intoxicated.'

Yeah, in most states. But, I don't think MO called for the whole taking the blood without a warrant issue. Sure, the license is revoked, but you didn't agree to have part of your body taken away, nor searched.

20 posted on 01/09/2013 11:11:26 AM PST by Theoria
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To: massgopguy
What happened to the 5th Amendment and not being forced to give testimony against yourself?

Under a line of Supreme Court cases going back more than 100 years, blood, saliva, hair, fingerprints, footprints, etc. are not considered "testimony." Taking any of these things is covered by the Fourth Amendment (unreasonable searches and seizures) not by the Fifth Amendment (self incrimination).

21 posted on 01/09/2013 11:16:33 AM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Theoria

If you refuse to take the test, the officer takes away your license.

The DMV then convenes an administrative hearing to determine whether the revocation should be made for the duration specified by law.

Moral of the story is its always better not to be arrested for a DUI in the first place since it can be very costly and emotionally draining.

I’ve never had that experience.


22 posted on 01/09/2013 11:16:44 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: circlecity

I would refuse the forced blood draw. They would need to taze me, subdue me, handcuff me, and strap me into the restraint chair. Even then I would be bucking in the chair to make it difficult to get the needle in.


23 posted on 01/09/2013 11:17:13 AM PST by Lazamataz (LAZ'S LAW: As an argument with liberals goes on, the probability of being called racist approaches 1)
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To: circlecity

Now, I don’t condone drinking and driving, but 40 minutes may be enough time for your blood to go from “easy DUI conviction” to a “reduced charge.”

Besides, many officers really don’t want to bother with that level of testing. Sometimes, if they take you to the local hospital for testing it can be 2 hours later because you’re a low priority.

In Georgia, by the most strictest of law (letter of the law stuff) they have to take you to 2 separate hospitals for blood testing. but you need a good lawyer to argue that appropriately.


24 posted on 01/09/2013 11:18:17 AM PST by Noamie
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To: Lazamataz

Losing your drivers’ license isn’t the end of the world. Facing felony charges for resisting arrest would be.


25 posted on 01/09/2013 11:21:21 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: massgopguy
"What happened to the 5th Amendment and not being forced to give testimony against yourself?"

The Fed and most States have ruled that 5th amendment privilege does not apply to blood, breath, urine, DNA or even handwriting samples.

26 posted on 01/09/2013 11:23:25 AM PST by circlecity
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To: Theoria

In Idaho there is “implied consent” when you receive your driver’s license that you will submit to a blood test. I personally think it’s a crock.


27 posted on 01/09/2013 11:24:40 AM PST by andyk (I have sworn...eternal hostility against every form of tyranny over the mind of man.)
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To: goldstategop

My wife was arrested and put in jail for 13 hours (12.5 hours longer than it took me to bail her out) and she hadn’t had a drop. I know because I was with her all day and was in the car when it happened.

I came close to choking a cop that night after he starting reading my wife her rights. He came close to breaking my arm. We came to an agreement on the hood of my car.

3 months and $20,000 later she was acquitted and the Asst. DA’s were almost disbarred and the arresting office was put on suspension - after he tried to intimidate me outside the doors to the courtroom before my testimony. No joke.

The best thing to do, in my experience, is shut up and ask to be let go or arrested. Then call a DUI lawyer ASAP.

Once the DUI game begins, losing your license can be the easy part.


28 posted on 01/09/2013 11:25:58 AM PST by Noamie
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To: goldstategop
>>Driving is a privilege and not a constitutional right.<<

Not sure we have too many constitutional rights any longer.

Wonder if this blood that is being drawn enters into a dna database or destroyed? Just curious.

29 posted on 01/09/2013 11:27:51 AM PST by servantboy777
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To: beelzepug

“Here in Washington State a refusal to perform routine roadside tests or submit to a blood test automatically causes your drivers license to be suspended for six months.”

I’d like to see that RCW. Roadside tests are always voluntary. Implied consent for Breathalyzer only kicks in after you’ve been arrested. Don’t make the cop’s job easier by volunteering anything.


30 posted on 01/09/2013 11:29:09 AM PST by Rinnwald
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To: goldstategop

I would then kill the cop, the judge, and every person involved in the process,


31 posted on 01/09/2013 11:29:18 AM PST by Lazamataz (LAZ'S LAW: As an argument with liberals goes on, the probability of being called racist approaches 1)
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To: Noamie
"but 40 minutes may be enough time for your blood to go from “easy DUI conviction” to a “reduced charge.”

Not very often. You throw off ethanol much more slowly than you absorb it and in a hour's time you'd only go down about .01 depending on your size and weight. So that would only matter if you were right at the line when you got arrested. If that was the case I rather argue against the borderline BAC than the refusal that goes along with a blood draw. The fact of refusal goes to the jury and creates a rebuttable presumption of intoxication.

32 posted on 01/09/2013 11:30:15 AM PST by circlecity
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To: Theoria

..with a judges search warrant.


33 posted on 01/09/2013 11:30:34 AM PST by TexasCajun
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To: SeminoleCounty

even with dashcam video of people falling over, recording slurred speech, etc?


34 posted on 01/09/2013 11:31:31 AM PST by Secret Agent Man (I can neither confirm or deny that; even if I could, I couldn't - it's classified.)
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To: Lazamataz
"I would refuse the forced blood draw. They would need to taze me, subdue me, handcuff me, and strap me into the restraint chair. Even then I would be bucking in the chair to make it difficult to get the needle in."

That cops around here run into that attitude frequently and they still get their sample. Every. Single. Time.

35 posted on 01/09/2013 11:31:54 AM PST by circlecity
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To: SeminoleCounty

i’m seeing comments from others that indicate a different experience than what you are seeing in florida.


36 posted on 01/09/2013 11:33:44 AM PST by Secret Agent Man (I can neither confirm or deny that; even if I could, I couldn't - it's classified.)
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To: circlecity

Oh, I know. But I would then hunt the cop and his entire bloodline like a feral cat hunts a mouse.


37 posted on 01/09/2013 11:46:23 AM PST by Lazamataz (LAZ'S LAW: As an argument with liberals goes on, the probability of being called racist approaches 1)
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To: Theoria

As a nurse, I would never draw blood from a person that does not want to give a sample; cops asking or court ordered. Under the laws of most states (and rulings of medical/nursing boards), performing a medical procedure of any type on a person against their will is considered assault - and a warrant does not absolve one of that legal liability and risk to licensure.


38 posted on 01/09/2013 11:50:29 AM PST by clee1 (We use 43 muscles to frown, 17 to smile, and 2 to pull a trigger. I'm lazy and I'm tired of smiling.)
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To: cunning_fish

That is the law in Mn. Not sure but I think it might be more than a year here.


39 posted on 01/09/2013 11:54:53 AM PST by DManA
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To: AppyPappy
I am 86 years old and have not touched a drop of alcohol for many years, two weeks ago I was stopped by a cop in an unmarked car (I think he must be the chief)while riding my bicycle and ordered to take a breathalyzer test which I submitted to because I knew he would order a blood test if I refused. This cop mistook old age for intoxication even though he could have easily asked me a few questions to confirm I was sober. yet he radioed for another patrol car to bring the breathalyzer because he didn't have one with him. So the breathalyzer was brought by a uniformed patrolman and they had me breathe into it.

Now I have been trying to figure out why did this cop go to all this trouble to get this breathalyzer test? Did he have some ulterior motive? Your comments would be appreciated. I have not had a drink for fifty years and I have never used any kind of prescription or illegal drug either.

40 posted on 01/09/2013 11:56:52 AM PST by tommix2 (,)
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To: Theoria

Keep a vial of blood handy in case you’re pulled over. Problem solved!


41 posted on 01/09/2013 12:00:23 PM PST by count-your-change (You don't have to be brilliant, not being stupid is enough.)
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To: Theoria
"The Obama administration, however, backs up Missouri in its contention that the need for quick blood-alcohol testing outweighs any individual privacy interest."

Of course they do, they work daily at rendering the entire Bill of Rights moot. They've been so successful at destroying the 4th Amendment that its existence is barely even mentioned any longer.

42 posted on 01/09/2013 12:04:54 PM PST by zzeeman ("We can evade reality, but we cannot evade the consequences of evading reality.")
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To: Lazamataz
I would refuse the forced blood draw. They would need to taze me, subdue me, handcuff me, and strap me into the restraint chair. Even then I would be bucking in the chair to make it difficult to get the needle in.

I'm pretty sure they would have to shoot me. No one sticks a needle in my arm. No one.

FMCDH(BITS)

43 posted on 01/09/2013 12:10:46 PM PST by nothingnew (I fear for my Republic due to marxist influence in our government. Open eyes/see)
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To: goldstategop

the concept of “implied consent” is one of the more evil ideas to come out of our police state.


44 posted on 01/09/2013 12:20:01 PM PST by zeugma (Those of us who work for a living are outnumbered by those who vote for a living.)
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To: tommix2
Did he have some ulterior motive? Motive was to intimidate... His wife probably left him because of the beatings... but hey, here is this 86 year-old riding a bike... He is nothing but a bully and a coward.
45 posted on 01/09/2013 12:22:00 PM PST by Rodamala
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To: Noamie

Refusal to Take the Test is the offense. Kinda hard to get out of that.


46 posted on 01/09/2013 12:24:32 PM PST by AppyPappy (You never see a massacre at a gun show.)
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To: Noamie
and she hadn’t had a drop. I know because I was with her all day and was in the car when it happened.What do you suppose was the cop's motive in accusing your wife of intoxication when she had not had any thing to drink. On another thread a few days ago a demale cop i n Utah was caught for false arreste for DUI to get extre pay.

I ask this because I was falsely suspected of intoxication a fewdays ago.

47 posted on 01/09/2013 12:24:32 PM PST by tommix2 (,)
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To: Rodamala
He is nothing but a bully and a coward. Thank you. I guess that is how I should file it in memory. I now take a different route that they don' patrol.
48 posted on 01/09/2013 12:30:34 PM PST by tommix2 (,)
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To: jaydubya2

All three Emergency Rooms in my county have dedicated fax machines with speed dials to the judges’ homes. If the cops have a DUI suspect who refuses the breath test, or the cops suspect controlled substances, judge has a fax of a probable cause affidavit in front of them in about 10 minutes. The warrant is faxed back to the ER about 5 minutes later.

Although it might involve waking up a judge at 3:00 a.m., it’s pretty much a rubber-stamp procedure. By the way, the judge doesn’t like being woken up at 3:00 a.m. and remembers that when the case goes to Court.


49 posted on 01/09/2013 12:31:21 PM PST by henkster ("The people who count the votes decide everything." -Joseph Stalin)
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To: SeminoleCounty

In Indiana, as noted in a couple posts above, they routinely do the warrant for blood draw. Refuse everything, and you get the one year license suspension under implied consent for the refusal. Then they also get the search warrant for the blood draw and get the evidence they need to convict anyway. The license suspension for the conviction for DUI is by law stacked on top of the one year suspension for the refusal.

Don’t refuse the test. Better than that, don’t drink and drive.


50 posted on 01/09/2013 12:35:08 PM PST by henkster ("The people who count the votes decide everything." -Joseph Stalin)
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