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State Supreme court ruling in Mo. WOULD ?

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dillon45

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

A 62 year old woman was involved in a accident approx. 8 month's ago. The officer arrested the woman and gave her a breath test, which was .00 she had
not been drinking.
She was diagnosis-ed the next day w/ a concussion. However, the officer demanded she submit to a blood test,she stated no, the officer continued to brow beat the woman
with threats, and taking her license and tearing it up. She still refused and the threats continued, the officer than called in a DRE officer and had him draw blood.

The woman made it very clear that she did not want to take a blood test, and w/ a closed head injury she was not thinking clearly as well. Finally she submitted to
the blood draw under protest.

Her court case is scheduled for may 2013.. Since this time the State Supreme court ruled the following:


Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California , 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence," id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.

Held: The judgment is affirmed.


QUESTION: Would this woman be eligible to have the blood draw dismissed (suppressed) ?
 


Zigner

Senior Member, Non-Attorney
What is the name of your state (only U.S. law)?

A 62 year old woman was involved in a accident approx. 8 month's ago. The officer arrested the woman and gave her a breath test, which was .00 she had
not been drinking.
She was diagnosis-ed the next day w/ a concussion. However, the officer demanded she submit to a blood test,she stated no, the officer continued to brow beat the woman
with threats, and taking her license and tearing it up. She still refused and the threats continued, the officer than called in a DRE officer and had him draw blood.

The woman made it very clear that she did not want to take a blood test, and w/ a closed head injury she was not thinking clearly as well. Finally she submitted to
the blood draw under protest.

Her court case is scheduled for may 2013.. Since this time the State Supreme court ruled the following:


Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California , 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence," id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.

Held: The judgment is affirmed.


QUESTION: Would this woman be eligible to have the blood draw dismissed (suppressed) ?
Her attorney would be the best one to ask...
 

dillon45

Junior Member
Her attorney would be the best one to ask...[/QUOTE

Yes I agree, however, it's my understanding the lady does not have sufficient funds to spend on a real DUI lawyer, and I further understand that this guy
is not the sharpest pencil in the box.

So, I thought I would get some information from this site that may be helpful for her , and maybe she could even bring any good info. to her lawyer.
 

tranquility

Senior Member
This is not a mere DUI arrest, but there was an accident involved. All the decision requires is the officer get a warrant or articulate a reason why there is an exigency beyond mere time dissipation. It is uncertain as to if the seriousness alone (accident over pulled over) would create a more exigent situation. Also, the 4th amendment remedy of exclusion tends to be justified to eliminate police misconduct. Since there was no clear holding beforehand, when the blood was taken, I am uncertain how retroactive application of the recent decision would serve to change police behavior.

It is an argument, but there are other arguments as well. This is not going to be a do-it-yourself thing but will require a knowledgeable attorney who will work hard. It might require an appeal. But, a couple of questions.

In the accident, was anyone hurt?

What was found in the blood?
 

dillon45

Junior Member
This is not a mere DUI arrest, but there was an accident involved. All the decision requires is the officer get a warrant or articulate a reason why there is an exigency beyond mere time dissipation. It is uncertain as to if the seriousness alone (accident over pulled over) would create a more exigent situation. Also, the 4th amendment remedy of exclusion tends to be justified to eliminate police misconduct. Since there was no clear holding beforehand, when the blood was taken, I am uncertain how retroactive application of the recent decision would serve to change police behavior.

It is an argument, but there are other arguments as well. This is not going to be a do-it-yourself thing but will require a knowledgeable attorney who will work hard. It might require an appeal. But, a couple of questions.

In the accident, was anyone hurt?

What was found in the blood?
1. The DRE report has not been given to her lawyer as of yet, and yes it is somewhat unusual this close to her court date. however, she was taken prescription pain meds. due
to a hip replacement just prior to the accident.

2. One injury, not serious.
 

TigerD

Senior Member
1st question asked: What is your state?

Options:
1. Hire her an attorney.
2. Become an attorney.
3. Assist her in setting up her own account and asking her own questions.

DC

PS - You might wish to reconsider threatening people on this site. It is uncalled for and unnecessary.
 
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