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  1. #1
    musicalshore is offline Junior Member
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    drug testing and fifth amendment rights

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

    I am currently involved in an Integrated Domestic Violence court case. I am the criminal defendant. There are no children involved. I have been told by my lawyer, who wants me to cop a plea, that I will be forced to take a hair follicle test. I am innocent of the charges brought against me, which are quite serious. Assault in the 2nd degree, assault in the 3rd degree, harassment in the 2nd degree, and criminal possession of a weapon. I have done my research and the only charge that I can honestly say that I am guilty of is harassment. I yelled a lot.

    I have been told by others that i cannot be forced to testify against myself, and that having me submit to a drug test is a violation of my constitutional rights. I was advised to look for precedents. I am recreational pot smoker and I've occasionally used cocaine. When I say occasionally, I mean maybe four or five times a year. I've been out with friends, it's been offered, and I've accepted. Once I found out that I may be forced to take a drug test, I made a decision to stay away from all drugs. I can easily pass a urine test. Whether or not I've smoked pot or used cocaine in the past does not make me a violent felon, but it does not look good. Can anyone offer any advice on this matter?
    Last edited by musicalshore; 04-23-2011 at 04:05 AM.
  2. #2
    Stevef is offline Senior Member
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    Quote Originally Posted by musicalshore View Post
    I have been told by my lawyer, who wants me to cop a plea, that I will be forced to take a hair follicle test.
    Agreeing to a test as part of a plea agreement is not the same as being forced. If you feel it is too intrusive, you don't have to accept the agreement.

    I have been told by others that i cannot be forced to testify against myself, and that having me submit to a drug test is a violation of my constitutional rights.
    The fifth amendment protects you from testifying against yourself. The key here is testimonial. Testimony is spoken words, when a witness gets on the stand and speaks. You cannot be forced to tell anything.

    A drug test is physical evidence, not testimony. There's nothing in the fifth amendment that prevents that. The Fourth Amendment protects you from the unreasonable seizure of evidence, but in your case, if there is probable case, supported by oath or affirmation, a judge can order a search.
  3. #3
    musicalshore is offline Junior Member
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    I still don't see how being guilty of one crime, of having used drugs at an indeterminate point in my life, constitutes evidence that I beat up my girlfriend or that I possess a weapon.

    She is on trial in the family court part. She isn't facing jail time, they are just determining whether to uphold my restraining. I have two witnesses that have seen her attack me without any provocation on my part. She has a history of mental illness (borderline personality disorder), and she is currently on disability for drug addiction. She overdosed four times in the past year (before I met her). Furthermore, I've seen her take drugs she hasn't been prescribed on several occasions. She hasn't had a job in years, and the last job she had was as a substitute teacher and she was asked to leave because she was making sexual advances towards her students. Can't I insist that she be drug tested as well?

    I have been well-employed for most of my adult life. I have no criminal record except for a DWAI-Drugs (marijuana) and possession of marijuana charge in 1997.

    If I lose this case, I will lose my restraining order and I am certain she will have me re-arrested. The charges probably won't stick, but I will still have to go through the trauma of being locked up in a cell for a night, or a weekend.
  4. #4
    CdwJava is offline Senior Member
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    Quote Originally Posted by musicalshore View Post
    I still don't see how being guilty of one crime, of having used drugs at an indeterminate point in my life, constitutes evidence that I beat up my girlfriend or that I possess a weapon.
    Then refuse the plea deal that has those conditions and take your chance at trial.

    My guess is that the victim has alleged that your actions may be connected to your substance abuse, or, the state feels that drugs might somehow be involved.

    In any event, they cannot force you to accept a plea offer. If the conditions are more than you want to accept, you can say "no" and take the whole matter before a jury.

    She hasn't had a job in years, and the last job she had was as a substitute teacher and she was asked to leave because she was making sexual advances towards her students. Can't I insist that she be drug tested as well?
    You can ASK for anything. They do not have to agree to it.

    I have been well-employed for most of my adult life. I have no criminal record except for a DWAI-Drugs (marijuana) and possession of marijuana charge in 1997.
    I suspect that this may be one of the things the state is keying on with its offer that includes drug testing.

    What does your attorney recommend?
    A Nor Cal Cop Sergeant

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  5. #5
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    Quote Originally Posted by musicalshore View Post
    I still don't see how being guilty of one crime, of having used drugs at an indeterminate point in my life, constitutes evidence that I beat up my girlfriend or that I possess a weapon.
    Not directly. But being a drug user will have effect on the veracity of your testimony...you already admitted here that you are a non-convicted felon.

    Keep on accepting those free drugs.
  6. #6
    musicalshore is offline Junior Member
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    I am not a felon, the dwai-drugs and possession are misdemeanors. Yeah, but I've been flagged. I have stopped using drugs, but a hair follicle test can go back years.

    My attorney is difficult. He was recommended by a family friend and is supposedly doing this at a discount. I've given him $2K already, he told me I didn't even need him, but if I hired him he'd clean it up nice. At the conference, he was late, unprepared and looked like he'd been slapped around by the boogeyman. He wants me to take the plea, because he says it will cost $15K to fight it. I'm going to have one more talk with him to get whatever info I can, because he hasn't used up my retainer and doesn't give refunds. I'm looking for a lawyer who has experience in cases where the accuser has a personality disorder. This woman is seriously mentally ill. It's been pretty obvious to everyone that has met her (except me). I'm counting on the judge seeing that. It's all dependent on how I appear in court. She may decide that the girl is a lunatic and lying, or she me decide that I should have known better.

    Although this is a criminal case, it's being tried in civil court.
  7. #7
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    Quote Originally Posted by musicalshore View Post

    Although this is a criminal case, it's being tried in civil court.
    You mean in a courtroom normally used for civil cases or being heard via civil procedure?

    [url=http://www.ipassedmydrugtest.com/hair_drug_test_FAQ.asp]Hair Follicle Drug Testing FAQ - Hair Testing Facts[/url]

    This website says a hair test only goes back 90 days .... so go cut your hair. If your use was > 90 days you MAY be OK. You are taking a risk though being a drug user, you would have to stop.
  8. #8
    IrishRover716 is offline Junior Member
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    Firstly, I have to disagree with Stevef. The fifth amendment says no person "shall be compelled in any criminal case to be a witness against himself". This is generally accepted as a general protection from self-incrimination, and there are several case precedents that could be used to argue that forcible admission of a defendant's genetic material, or evidence taken from any part of their body constitutes being a witness against themselves. That being said, Stevef is absolutely correct in his first statement. Plea bargains are voluntary. You're not being compelled to take it, and so no fifth amendment violation has been happened.

    I would also recommend, if you have witnesses to abuse on the part of your ex, that you contact a magistrate and pursue charges against her. If the courts refuse to hear the charges (as frequently happens in domestic violence cases, the courts being decisively biased towards female complainants), you could attempt to argue that trying you for your involvement in the case while refusing to investigate or try your claims against your ex represents a presumption of your guilt on the part of the court, and therefore violates your fifth amendment right to due process.

    Edit to add: You can also attempt to challenge the credibility of her testimony
    Last edited by IrishRover716; 04-23-2011 at 07:22 PM.
  9. #9
    Stevef is offline Senior Member
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    Quote Originally Posted by IrishRover716 View Post
    several case precedents that could be used to argue that forcible admission of a defendant's genetic material, or evidence taken from any part of their body constitutes being a witness against themselves.
    Please provide a citation for one of these cases in NY.
  10. #10
    IrishRover716 is offline Junior Member
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    Quote Originally Posted by Stevef View Post
    Please provide a citation for one of these cases in NY.
    Fair request. I really can't, without further research. I'm not a New York resident, and not very familiar on NY case law, so I'll bow out on this one. I will say that I do believe that it would be an arguable point in any jurisdiction. But, as we both agree, the fifth isn't even applicable in this case.
  11. #11
    Ohiogal is offline Senior Member
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    Anyone actually read the New York Rules of Evidence? It states:

    S 60.75 Rules of evidence; chemical test evidence.
    In any prosecution where two or more offenses against the same
    defendant are properly joined in one indictment or charged in two
    accusatory instruments properly consolidated for trial purposes and
    where one such offense charges a violation of any subdivision of section
    eleven hundred ninety-two of the vehicle and traffic law, chemical test
    evidence properly admissible as evidence of intoxication under
    subdivision one of section eleven hundred ninety-five of such law shall
    also, if relevant, be received in evidence with regard to the remaining
    charges in the indictments.
    It would be admissible IF gotten due to a vehicle issue (think OVI/DWI/DUI stop). But they cannot force him to test before trial. Now they can make that a condition of probation/parole.

    But they can't force him to test and then prosecute him for it.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  12. #12
    musicalshore is offline Junior Member
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    this is the best info I've received so far. Thanks.

    Are the rules of evidence different for civil court? Remember, I'm defending myself against criminal charges in a civil court (IDV). I realize they can't force me to take the hair test, but that's essentially an admission of guilt. Maybe not in criminal court, but that's how it will be perceived in civil court and it will be used against me.
  13. #13
    Zigner is offline Senior Member
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    Quote Originally Posted by musicalshore View Post
    I have stopped using drugs...
    Directly contrasted by:

    Quote Originally Posted by musicalshore View Post
    I am recreational pot smoker...

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