October 07, 2005

Forced Blood Tests...A 4th Amendment Issue?

A Nashville man is facing DUI charges after running a traffic light and injuring a woman in another car.

Officers saw alcohol in the vehicle and smelled it on his breath. Officers also noticed that he was slurring his speech. After failing a field sobriety test, they wanted him to submit to a breathalyzer or blood test, but the suspect refused. Metro police took him to the hospital for a forced blood test, but the hospital refused to cooperate because the suspect would not consent...

When the officer took Balderas to Metro General to have blood drawn, he says the nurse on duty and supervisor would not do it because Balderas would not consent.

The accused drunk driver refused to take a breathalyzer or have blood taken, but according to the arresting officer, under state law a hospital must draw blood for a test even if the arrested person refuses.

The officer then got one of the Davidson County DA's on the phone in the middle of the night to tell the hospital about the law.

But the hospital still refused to take the blood.

The suspect did fail the field sobriety test, alcohol was found in the vehicle and it could be smelled on his breath. What more has to be done to prove that the driver was not fit to drive?

When a suspect is forced by law to submit to giving up blood it, to me, become a 4th Amendment issue because you are having to submit evidence from your person sans warrant that can and will be used against you in a court of law. (I have heard it argued that you are essentially testifying against yourself with the evidence you are providing thus becoming a 5th Amendment issue, but we'll stick to the 4th Amendment for now).

I have to give kudos to the hospital for not bowing to a potentially un-Constitutional law. They did the right thing.

I've never been comfortable with laws that force drivers to submit to such tests. On one hand, dealing with drunk driving is a serious issue that is a serious concern to public safety, but on the other, there are Constitutional protections that should be upheld. I don't like the idea of being strapped down and forced to give up my own blood for evidence in a criminal case against myself.

No, I don't plan on doing any drunk driving anytime soon, but where do things like this stop? We've seen time and time again that when a law is created for the "public good" which ignores a Constitutional protection, it only leads to more laws that ignore the Constitution...the "slippery slope" effect, if you will. Of course, many people will say that we no longer have a 4th or 5th Amendment (or a 9th, 2nd, 1st, etc. etc. etc.), and unfortunately, they would be right.

We really need to start paying attention to what's going on around us. "Feel good" laws that are designed to protect us aren't always in our best interests.

We might can justify these little things that bend the Constitution here and there now, but when the government is knocking down your door to force you to submit DNA samples for the "greater good," be sure to pull out your little copy of that Constitution. I'm sure it will stop them dead in their tracks.

Comments:

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I agree with most of the blog story, but doesn't the law also say if one refuses to submit to these tests, they will lose their drivers license? Driving is not a right, but rather a privilege in that society should have rules and regulations - to a certain point. Yes, drunk drivers should not be allowed on our roads. No, Chief Serpas should not be able to use this venue for increasing city revenues.

Posted by: no_static_at_all at October 7, 2005 07:33 AM

The law you are referring to is implied consent. However, if you have a decent lawyer you won't have to worry about that charge either.

Posted by: Drake at October 7, 2005 07:59 AM

"Driving is not a right, but rather a privilege in that society should have rules and regulations"

It is? The right to travel has a foundation in case law (Kent v. Dulles):

"the Court held that the right to travel is an inherent element of "liberty" that cannot be denied to American citizens"

Obviously, it would still be subject to reasonable regulations but forcing blood withdrawal is not real reasonable.

Posted by: SayUncle at October 7, 2005 09:13 AM

Whether driving and traveling are considered the same, or a simple parsing of words (driving may be a type of travel (?), I think we all agree that we don't want drunk drivers on the roads. I also agree that forcing blood withdrawl sets a bad precedence. (Although I am not sure how I would respond if he had hit and killed someone.)

IMO, the person made a choice not to allow his blood taken, society made a choice to remove his driving license privilege. Where is the reasonable median?

Posted by: no_static_at_all at October 7, 2005 09:52 AM

the most common means of travel is driving.

we also don't want criminals to have guns. That doesn't change the fact there's a right to arms. I'd consider it a reasonable regulation.

A 'choice' not to allow his blood taken or an exertion of his right to freedom from unreasonable searches?

Posted by: SayUncle at October 7, 2005 12:08 PM

DUI Mike's got the right idea:

http://www.duimike.com/driver.htm

Posted by: Big Daddy at October 10, 2005 02:46 PM