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There has been much talk about this. Especially the Zimmerman case, as to why the police didn't force a chemical test from him or even take one. ALOT of persons, many on this board, called the police inept for not taking one. A blood/chemical test also was not taken of Holmes after the shooting in Colorado.
So, when and how can a police agency FORCE a blood/chemical test from someone?
There has been much talk about this. Especially the Zimmerman case, as to why the police didn't force a chemical test from him or even take one. ALOT of persons, many on this board, called the police inept for not taking one. A blood/chemical test also was not taken of Holmes after the shooting in Colorado.
So, when and how can a police agency FORCE a blood/chemical test from someone?
In Nevada, they can, and will, if you are suspected of DUI with a crash and refuse the breathalyzer. This is due to the documents that you sign to obtain a driver's license. I would imagine in the case of Holmes or Zimmerman, a warrant would need to be obtained. By the time that was done, the blood test might be irrelevant, as I suspect it was in both of those cases anyway.
In Nevada, they can, and will, if you are suspected of DUI with a crash and refuse the breathalyzer. This is due to the documents that you sign to obtain a driver's license. I would imagine in the case of Holmes or Zimmerman, a warrant would need to be obtained. By the time that was done, the blood test might be irrelevant, as I suspect it was in both of those cases anyway.
Excellent analysis. Now the bigger question is: Why? How come?
Hypothetical here: You shoot up a movie theatre and I arrest you. How, when can I force a blood test from you? Or can I ever?
Excellent analysis. Now the bigger question is: Why? How come?
Hypothetical here: You shoot up a movie theatre and I arrest you. How, when can I force a blood test from you? Or can I ever?
4th amendment? Or maybe the 5th since my blood might be self-incriminating?
I can't answer your second question with anything resembling an informed response, so here's an uniformed one based upon watching Law and Order. I think you would probably need a court order like they do with the DNA tests. I'm guessing there might be exceptions if you hospitalize me and tell the hospital staff that you believe my life is in danger from ingesting some substance. I'm guessing any evidence obtained in that scenario would be inadmissible in court?
Excellent analysis. Now the bigger question is: Why? How come?
Hypothetical here: You shoot up a movie theatre and I arrest you. How, when can I force a blood test from you? Or can I ever?
The police can ask the person to submit to one. If the person refuses the police can try to obtain a search warrant and if approved they can then force a drug test.
The laws vary a lot from state to state. Remember a couple of years ago when they finally took a DNA sample of a guy in prison for armed robbery and found out he was a serial killer they'd been watching to catch for 18 years? They never tested him before because the nature of his known crimes didn't warrant it.
4th amendment? Or maybe the 5th since my blood might be self-incriminating?
I can't answer your second question with anything resembling an informed response, so here's an uniformed one based upon watching Law and Order. I think you would probably need a court order like they do with the DNA tests. I'm guessing there might be exceptions if you hospitalize me and tell the hospital staff that you believe my life is in danger from ingesting some substance. I'm guessing any evidence obtained in that scenario would be inadmissible in court?
Yes, the 4th Amendment is the issue. Remember, the key word in the 4th Amendment is "reasonable." Morever, remember the 4th Amendment ONLY applies to law enforcement. Not private persons.
So, lets look at Zimmerman. As I said, a lot of people were upset no chemical test was taken from him. Many persons, again many on CD, pitched a ***** and complained the police agency was inept for not taking a test from him. Many said it was the same as police officer, involved in a shooting, and blood tests were taken from those officers (i've been involved in 4 seperate officer involved shootings and have NEVER submitted to a chemical test and never will). I digress.
Zimmerman is arrested/detained. Unless one of those officers who did so, had probable cause to believe Zimmerman was under the influence, it wasn't possible for them to get a chemical test. They could request it called consent, however if Zimmerman said, "No." They would be forced to get a search warrant (ah yes, a search warrant, read the 4th Amendment again) to obtain the blood. By the time it was written and judge signed it, it would be many, many, many hours after the offense; thus rendering it worthless (in most cases).
You could, maybe, depending upon the jurisdiction, where I live and work, wouldn't fly, argue you needed to force the blood test because of the destruction of evidence (time). This MIGHT fly in certain areas; however, most no. If the offender declines, what am I supposed to do? Punch him in the nose and catch the drippings in a cup?
Most nurses REFUSE to have you strap someone down and force a blood draw. Including a DUI Investigation, regarding a death. Many hospitals in my area flat our refuse to do it and we have to require a private phlebotomist to withdraw the blood. Expensive and time consuming.
The funny thing is, no one complained in the theatre shooting. No one on this board, etc complained the police didn't take a chemical test. When asked, the investigator said, "There was no evidence he was under the influence of a drug." End of story. You CANNOT, under these circumstances, FORCE a chemical test from someone.
DUI and this issue are totally different. And yes, many people argued they are the same thing and should be treated as such. Maybe. Yet the LAW says differently.
At the Clark County Detention Center, they have their own medical staff and they will strap you down and take your blood given a DUI charge or a court order. Sometimes, I think the court order / warrant might have come after the blood draw, but that's Nevada justice for you. *shrugs*
In the Zimmerman case, wouldn't a finding that he was on something be a boon to the defense who would argue some sort of diminished capacity? " Your Honor, my client had a drug problem and has agreed to accept treatment..."
My biggest problem with Zimmerman is that he was told by the professionals not to do what he did. Don't follow the guy. If he acted in self-defense it's because he put himself in that position, which makes him a dip****. I have very little tolerance for incompetence, in professional life, or private. I'm surly like that.
At the Clark County Detention Center, they have their own medical staff and they will strap you down and take your blood given a DUI charge or a court order. Sometimes, I think the court order / warrant might have come after the blood draw, but that's Nevada justice for you. *shrugs*
In the Zimmerman case, wouldn't a finding that he was on something be a boon to the defense who would argue some sort of diminished capacity? " Your Honor, my client had a drug problem and has agreed to accept treatment..."
My biggest problem with Zimmerman is that he was told by the professionals not to do what he did. Don't follow the guy. If he acted in self-defense it's because he put himself in that position, which makes him a dip****. I have very little tolerance for incompetence, in professional life, or private. I'm surly like that.
Alcohol and drug intoxication is not a defense to a crime. In Zimmerman's case, it would be completely against his own self interests to have given a chemical test. Remember, a blood test can be tested for ANYTHING. Not just illegal drugs, but over the counter prescription drugs too. You can argue Benadryl causes poor judgement, etc (and it does, that is why they say not to use it and drive, including the drowsiness). There is such an uproar of this case, any impairment which could be proven would seal his fate.
Zimmerman's case, however, is a whole different story.
Alcohol and drug intoxication is not a defense to a crime. In Zimmerman's case, it would be completely against his own self interests to have given a chemical test. Remember, a blood test can be tested for ANYTHING. Not just illegal drugs, but over the counter prescription drugs too. You can argue Benadryl causes poor judgement, etc (and it does, that is why they say not to use it and drive, including the drowsiness). There is such an uproar of this case, any impairment which could be proven would seal his fate.
Zimmerman's case, however, is a whole different story.
PS. Its freaking cold here in Las Vegas.
Coldest weather we've had in five years or so. The top of my pool is frozen and I haven't had warm toes in days. Pipes bursting all over town, ugh. I hope that other than freezing you rear end off, you are enjoying the show.
Topic: As far as forced testing of people's blood for alcohol or drugs goes, it seems like the proverbial slippery slope. The legal consequences also seem to be applied rather inconsistently (at least here).
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