Can police force someone to submit to a drug test?

[jennyred66]

Thanks

Thanks to everyone who answered my post or tried to. I appreciate it and it was very helpful. One question. What's a DRE? Thanks again.

 

[HighwayMan]

Drug Recognition Expert.

 

[disneykid52]

Stepping outside or even answering the door was a bad idea. It changed the rules between being in a public place and being in the home.

Property lines end just outside the home owners door?. hmmmmm, interesting

 

[HappyWanderer]

It's not about property lines, but your reasonable expectation of privacy. The Supreme Court has drawn the line at the threshold. Past the threshold is the most private place and where a person has the highest expectation of privacy.

Some circuits have a slightly different standard by saying that which you show to the public willingly should not get those protections. The person in this thread was in the 9th circuit where the lesser protection for willing exposure is had. There, not only should the person not stepped over the threshold, he should not have even opened the door.

 

[dntburnme]

Yes, in CA we can compel a chemical test. Even the USSC says we can compel a chemical test. However, it is the POLICY of a number of agencies NOT to compel blood on anything short of a felony. In your state, there may be a law prohibiting the forced taking of blood - but it would be a state law; it might also be a local policy or practice rather than law.


The arrest requires probable cause to believe that the person is under the influence of a controlled substance. As such, there is probable cause to believe that the evidence is in his body. The exigency is that the body is metabolizing (i.e. destroying) that evidence each and every minute. Ergo, you have probable cause AND an exigency to justify the exception to the warrant requirement.

And, no, "looking high" is NOT sufficient to establish probable cause. It should include the articulated, objective symptoms of being under the influence. And one does no have to be a DRE to make such an arrest, but it helps. I believe am the only DRE trained officer in my county, aside from one of the local CHP officers. But many officers have the lesser DAR class, or simpler still "11550 training." I used to be tapped by everyone to go out and bless their dope influence arrests ... now, thank God, they have enough people who are minimally trained to do the job.

Can the DA search my blood for an 11550 when arrested for a DUI and there was no mention of drugs from the arresting officer. I opted for the blood test because a judge friend of mine had banned certain brand of breathalizers beacause of there unreliability in manatee county FL. Shouldn't they only check for my BAC? THis is happening in Riverside county CA.

 

[HighwayMan]

This thread has been dead two and a half years. Don't necropost!

If you have an issue/question start your own thread.

 

[disneykid52]

Stepping outside or even answering the door was a bad idea. It changed the rules between being in a public place and being in the home.

So the property line stops outside the door on the other side of the threshold? hmmmm

 

[CdwJava]

Can the DA search my blood for an 11550 when arrested for a DUI and there was no mention of drugs from the arresting officer. I opted for the blood test because a judge friend of mine had banned certain brand of breathalizers beacause of there unreliability in manatee county FL. Shouldn't they only check for my BAC? THis is happening in Riverside county CA.

This belongs in its own thread.

However, the state can test for drugs and/or blood. But, since the tests are sent to different facilities (if done by the DOJ) and taken in different vials, then the blood taken would have had to be earmarked for drug testing from the start. OR, the BAC test turned up a result below .08 and was then sent off for drug testing because of the lower than the pe se level BAC.

What happened in FL has no real bearing on CA.

 

[jefo]

unreasonable search & seizure

This belongs in its own thread.

However, the state can test for drugs and/or blood. But, since the tests are sent to different facilities (if done by the DOJ) and taken in different vials, then the blood taken would have had to be earmarked for drug testing from the start. OR, the BAC test turned up a result below .08 and was then sent off for drug testing because of the lower than the pe se level BAC.

What happened in FL has no real bearing on CA.

The comment about FL has bearing about the accuracy of a breathilizer test. The questioner was being charged with driving under the influence of alcohol, I assume that he chose a blood test because he was worried that a breathilizer test could give a false positive. You infer that if the BAC showed below .08, that the cops could just keep testing the sample until they found something to charge him with.

I can imagine the conversation: "Lets see, he wasn't drunk, lets go fishing. Test it for heroin and barbituates. If that is negative, how about marijuana or opium? Not there? Hey, look for cocaine, how about meth? We gotta find something! Mescaline? Ecxtasy, Mushrooms, LSD?..."

Only one problem with that scenario. Aren't they supposed to have probable cause at the time of arrest for each and every substance tested for?

 

[CdwJava]

The comment about FL has bearing about the accuracy of a breathilizer test. The questioner was being charged with driving under the influence of alcohol, I assume that he chose a blood test because he was worried that a breathilizer test could give a false positive. You infer that if the BAC showed below .08, that the cops could just keep testing the sample until they found something to charge him with.

How it works in most state labs is that if they are looking for alcohol and the alcohol in the blood or urine comes back less than .08, then the lab will test again for drugs using the standard panel. That might not work everywhere, but that's how it is done here (and the OP, dntburnme, is in CA).

I can imagine the conversation: "Lets see, he wasn't drunk, lets go fishing. Test it for heroin and barbituates. If that is negative, how about marijuana or opium? Not there? Hey, look for cocaine, how about meth? We gotta find something! Mescaline? Ecxtasy, Mushrooms, LSD?..."

Not how it works. See above.

Only one problem with that scenario. Aren't they supposed to have probable cause at the time of arrest for each and every substance tested for?

Nope.

 

[jefo]

Thank you, CdwJava!

California Health & Safety code section 11550 makes it a crime to be under the influence of a controlled substance. If an officer believes, based on the available evidence, that you are under the influence of a controlled substance, then they have probable cause to obtain evidence by way of a search. A blood test has been ruled by the courts to be minimally invasive and they do not need a warrant to get a blood sample. They can force a blood draw without waiting for a warrant because the evidence they seek ( the drugs in your system, allegedly) may be out of you system by the time they get a warrant. This "exigency" allows them to obtain the evidence and force a blood sample. They must be able to demonstrate probable cause to obtain this sample. It's a higher standard than reasonable suspicion, but is not all proof beyond a reasonable doubt.

There is great info here, I hope you will excuse me for pulling up an ancient post like the above (Number 8 in this thread).
I am a newcomer to this subject, having just gotten arrested last week and charged with H&S 11550(a). For the sake of my criminal defense process I am intently studying the relationship between the involuntary blood test and the 4th amendment. Quoting from that document:
"...no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Notice the phrase; "particularly describing the place to be searched and the ... things to be" (looked for) seems to rule out fishing expeditions. That is why I was suprised that the lab could take a sample that was voluntarilly submitted by dntburnme for an alcohol test to check his complyance with a vehicle code regulation to search for other stuff. I guess, since you straightened me out on that one. I can see that no warrant was necessary because dntburnme voluntarily provided the sample. Kind of like if you let the cops into your house so they can see that you don't have any of the loot from the recent neighborhood burglery, when they see the marijuana piled up on your coffee table. They are not searching for marijuana, but they couldn't help but notice it.

Back to the above quote (from ERAUPIKE). I learned a new word, "exigency". That is what allows the cops to force a blood sample. They still have to have "probable cause", but the cops are on their honor here, right? No body is going to look at any oaths or affirmation before permission to seize the sample is issued. OK, I can see that.

But what about testing the sample that was taken without a warrant. Does the fact that it can be justifyably seized without a warrant mean that they also don't need a warrant to search (test) it? What if I object to them testing mine without a court order?

 

[HighwayMan]

There is great info here, I hope you will excuse me for pulling up an ancient post like the above (Number 8 in this thread).

If you got locked up and need to ask questions about it then start your own thread.

 

[CdwJava]

There is great info here, I hope you will excuse me for pulling up an ancient post like the above (Number 8 in this thread).
I am a newcomer to this subject, having just gotten arrested last week and charged with H&S 11550(a). For the sake of my criminal defense process I am intently studying the relationship between the involuntary blood test and the 4th amendment. Quoting from that document:
"...no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Notice the phrase; "particularly describing the place to be searched and the ... things to be" (looked for) seems to rule out fishing expeditions.

And if we were talking about SEARCH WARRANTS you might be correct. We're not. We're talking about evidence already seized.

If I recovered a baggy of drugs from your possession but didn't find fingerprints, I could also ask that it be checked for DNA. All because I ruled out one likley possibility does not mean I cannot check others.

I guess, since you straightened me out on that one. I can see that no warrant was necessary because dntburnme voluntarily provided the sample.

Voluntary made no difference. Under CA state law the police could have forced blood from him if he had refused.

Back to the above quote (from ERAUPIKE). I learned a new word, "exigency". That is what allows the cops to force a blood sample. They still have to have "probable cause", but the cops are on their honor here, right? No body is going to look at any oaths or affirmation before permission to seize the sample is issued.

Correct. But, the sample need not be volunteered, only lawfully obtained.

But what about testing the sample that was taken without a warrant. Does the fact that it can be justifyably seized without a warrant mean that they also don't need a warrant to search (test) it? What if I object to them testing mine without a court order?

The evidence is in the possession of the state. Once they have it, you cannot object to the tests done to it. You might have grounds to object to it being used to enter your DNA into a state database, but not for testing for illicit substances.

Better you listen to your attorney on this one. You have an opportunity at diversion for an 11550 arrest. I'd recommend you take advantage of it unless there is some other grounds to fight the case.

And, if you wish to carry this conversation on, please start your own thread.

 

[jefo]

In Conclusion . . .Thanks for all the information

I would love to see what happens if the police took blood because someone looked high. Especially when the blood test comes back with nothing. The cops are going to have to come up with some fancy dancing. They don't have to be right, they do have to have good reasons for thinking what they did.

That pretty much sums it up. Either the blood test comes back with a controlled substance, and I end up in the diversion program, and the arresting officer can pat himself on the back - OR - it comes back with nothing, and the DA asks the judge to dismiss "For furtherance of Justice"; the arresting officer gets to go back out and try it again.

That is the dance as it is done in Califonia. No one really cares about reasons for thinking wrongly. And if my test comes back clean, I doubt that anyone apologizes. I will just be glad when the judge tells me, "You're free to go."

I really love what DAVE33 said. "Well, obviously in CA. it is legal to compel a blood test. But come on, does anybody really believe that was the spirit of the constitution or the bill of rights? I realize that there is plenty of supporting case law and a statute that defines it as legal. I just cannot believe that Americans that believe in individual freedoms and rights could support such a blatant act against ones wishes. Besides taking a life, can you violate someones rights any more openly?"

That is (apparantly) how it is. The spirit of the bill of rights has died.

Again, thanks for this forum and all the facts, knowledge, and information that y'all have provided.

 

[HighwayMan]

That is (apparantly) how it is. The spirit of the bill of rights has died.

You just won't leave this thread alone will you?