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  1. #1
    alexp is offline Junior Member
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    back seat passenger under the influence charge

    What is the name of your state (only U.S. law)? California

    I was riding in the back seat of a car that was pulled over for going 100mph. The driver had a warrant for failing to appear for his 3rd dui, and was justly arrested for that and his 4th.
    The officers then asked the front seat passenger to get out and talk to them. A few minutes later, they told me to get out to talk to them. They frisked me for weapons and immediately asked me where the drug stash was (there was no drug stash). After asking me the same thing over and over again, they told me the front seat passenger "said you guys had been smoking." I honestly had no response and simply didn't respond. They put me in cuffs and consulted with each other about searching the car, did, and found nothing but a messy car. The front seat passenger was not arrested and drove the car home.
    When we got to the CHP station, the officer told me that I had to submit to either a urine test or blood test. I opted for the urine test so I wouldn't have to get poked. They couldn't find the kit, and said it'd have to be a blood test. He brought me to a different room than the driver, interrogated me more (I admitted to having an addiction problem to a medicine prescribed to me, and that I sometimes took it more than directed). Then he returned me to the room the driver was in, cuffed me to the table, and while pointing to what looked like wrestling mats, told me that if I didn't submit, they'd hold me down. I told him that I didn't intend on fighting with them. He then told me that I was under arrest and read me my Miranda rights. I told him that I thought I understood them. The medic showed up, sat opposite me, and the officer presented me with a consent to draw my blood form. I asked him if he said that I had the right to an attorney. He affirmed. I said that I wanted one before I signed, and he said that right was irrelevant here and to sign it.
    Can I have the blood test suppressed?What is the name of your state (only U.S. law)?
  2. #2
    outonbail is offline Senior Member
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    Did you sign the form?
  3. #3
    CdwJava is offline Senior Member
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    If they had probable cause to believe you were under the influence of a controlled substance (and it appears they did) then they also have a right to obtain the evidence - in this case, your blood.

    Your attorney can try to suppress it, but I see no grounds as they did not NEED your consent to take the blood, anyway.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  4. #4
    dave33 is offline Senior Member
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    I do not understand why you were brought to the police station to begin with. If you were brought there for suspicion of being under the influence that seems like a waste of resources. If this is the case I find it hard to believe that you can be forced to give blood. What ever happened to the right not to incriminate yourself. If this is truly the situation, Cal. is openly violating peoples rights. Stories like this truly make me afraid for my son and other people I care about. I hope I am missing something here, because that sure does not sound like America when I think of what we stand for. Also these cases in that state must have reached the higher courts. I just can't imagine supreme court justices supporting such a law or statute. I realize this was no help at all and I apologize, I was just taken aback when reading this and felt compelled to say something. goodluck.
  5. #5
    JKBee is offline Member
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    As of a few years ago, at least, the tests could only state that you tested positive for a drug. There was no test that could detect the amount. If you had a legal prescription for this drug, the police have nothing to hold against you. Taking a legal prescription? Not prosecutable. If you do not have a legal prescription, well, the test will still show you tested positive. Then you have better have your lawyer explain that you just found the old prescription and had been using it until you could get into the doctor for a current one.
  6. #6
    outonbail is offline Senior Member
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    I thought it was a little strange that the police chose to drag him down to the station to force blood from him. There is most likely much more to this situation than we are being fed by the OP. Like why he didn't choose to pee?

    However, I will say, that the OP might consider thanking the officer who pulled the vehicle over and subsequently took him into custody along with the driver.

    I say this because anyone who has had three DUI's and decided not to appear for his third, wouldn't have a valid drivers license. This would also mean he had no insurance either.

    Yet the OP climbed into this criminal's car and just sat back, as the driver, drunk once again, proceeded to exceed 100 miles per hour?

    It's not a matter of "if" this habitual drunk driver will injure or kill someone, it's a matter of when and how many!
    Even if you are only injured in this death ride waiting to happen, the driver has no financial means to pay his victim's medical expenses.

    The OP should be glad the officer stopped the car before he was listed in this week's obituaries,,,,
  7. #7
    JKBee is offline Member
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    It does sound like there is alot more here than is being said.

    But still, if there is a legal prescription, bottom line is that tests can't tell the amount if the substance, just the presence.
  8. #8
    outonbail is offline Senior Member
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    Quote Originally Posted by JKBee View Post
    It does sound like there is alot more here than is being said.

    But still, if there is a legal prescription, bottom line is that tests can't tell the amount if the substance, just the presence.
    Actually, I believe they can tell how much of the drug is in the bloodstream. May not be as exact a science as with the measurement of alcohol, but I believe they can determine the amount of the drug present at the time the blood was taken.

    The testing for a specific quantity may be more than most LE departments bother with, because if it is an illegal substance, any amount is a violation of the law.
  9. #9
    JKBee is offline Member
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    I would be interested to know this. My pharmacist told me that tests don't show the amount, just the presence.
  10. #10
    Proserpina is offline Senior Member
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    Quote Originally Posted by JKBee View Post
    I would be interested to know this. My pharmacist told me that tests don't show the amount, just the presence.
    Depends on the test.

    It's actually fairly standard to note the level of a particular drug in the patient's blood; the provider needs to be sure the dosage actually meets optimal therapeutic guidelines and to check for toxicity and abuse, and to see how efficiently a patient is (or isn't) metabolizing the drug.

    (example: if you have a regular prescription for Vicodin the amount in your bloodstream is expected to fall into a certain range - if it's considerably higher the patient generally isn't taking it as prescribed....)

    More importantly though, you can absolutely be prosecuted even with a legitimate prescription ; having that prescription doesn't mean you can drive under the influence, by any means.

    (as early as 2000 we were checking levels of diphenhydramine - for example - to determine impairment)

    (and actually also convicting based upon the same!)
    Last edited by Proserpina; 09-30-2009 at 12:46 AM.
  11. #11
    CdwJava is offline Senior Member
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    Quote Originally Posted by dave33 View Post
    I do not understand why you were brought to the police station to begin with. If you were brought there for suspicion of being under the influence that seems like a waste of resources.
    Why? The police investigate crimes. Being under the influence of drugs and/or alcohol is a crime. Ergo ...

    It is what they do.

    If this is the case I find it hard to believe that you can be forced to give blood.
    Of course you can. I can cite case law in both CA and from the USSC that says they can, if you'd like.

    What ever happened to the right not to incriminate yourself.
    Blood is not testimony, it is evidence. It is also evidence that is metabolizing (i.e. being destroyed) which makes it an exigency and thus exempt from the warrant requirement. So long as it is drawn in a medically approved manner and does not shock the conscience of the court, it's good.

    If this is truly the situation, Cal. is openly violating peoples rights.
    Not according to the US Supreme Court and the CA courts. In fact, this is the case in most states. As far as I recall only a very small number of states do NOT allow compelled blood draws for misdemeanors, and I am not sure whether those are conditional or not.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  12. #12
    CdwJava is offline Senior Member
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    Quote Originally Posted by JKBee View Post
    As of a few years ago, at least, the tests could only state that you tested positive for a drug. There was no test that could detect the amount. If you had a legal prescription for this drug, the police have nothing to hold against you. Taking a legal prescription? Not prosecutable.
    Sure they can be prosecuted.

    The law in CA prevents you from being under the influence of a controlled substance - prescription or otherwise. This is not a problem if you are looped in your own home so long as you are taking your prescribed medication. When the concentration is too high, or, when you are out in public and under the influence, you can be arrested and convicted. This is true in every state as far as I know.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  13. #13
    CdwJava is offline Senior Member
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    Quote Originally Posted by JKBee View Post
    I would be interested to know this. My pharmacist told me that tests don't show the amount, just the presence.
    The tests we get back from the lab show a positive above a presumptive "positive" level. It can also be re-tested for a specific concentration (NG/ML) in the blood.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  14. #14
    dave33 is offline Senior Member
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    Carl, I understand what you are saying. Physical evidence is not testimony, but in the absence of the spoken word, the blood was still used to incriminate him. There would be no other evidence except for a visual inspection by the officer. The blood draw certainly makes for a stronger case. Since he did not consent it still seems like he was forced to incriminate himself. I understand it is metabolizing therefore exigency circumstances exist. But come on, being held down and forced to give a fluid for such a thing is just wrong. In my state being under the influence alone is not a crime, although disorderly conduct of course is. The law may very well be on your side, as i have not investigated it. Just sees like the opposite of freedom. Although since o.p. was legal in taking the drug this might be for nothing, I just wasn't aware some or most states had and supported those laws.
  15. #15
    xylene is offline Senior Member
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    Law vs. policy

    Quote Originally Posted by CdwJava View Post
    When the concentration is too high, or, when you are out in public and under the influence, you can be arrested and convicted. This is true in every state as far as I know.
    Aggressive prosecution of drug/narcotic intoxication apart from a related criminal offense is not law enforcement and/or prosecutorial policy in New York.

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