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right to an attorney and false arrest?

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chevy372

Member
What is the name of your state? California

I was at a friend of mine's house, and a police officer knocked on the door (Neither of us are minors). My friend is going through a divorce and he had filed a complaint against his wife. The officer that came to the door had in his hands a urine test kit. He took my friend outside, and a time later knocked on the door. I answered and he told me my friend was under arrest for meth usage, and he had admitted it. He asked me to grab his keys for him and come outside. I told him he had his keys on him, at whichtime a call over the radio came over that the suspect did have his keys. The officer then told me to turn the lights off for him then. When I did so, he shined the lights inside the apartment. I turned the lights on and said, "Officer, I don't know what you're looking for, but there's nothing here." He then asked me to step outside and on the curb. At that time he asked me to take a FST. I agreed, and passed 3 out of 4 tests. He said after the 3rd test that the previous tests did not count and that the last one did. The previous ones I had passed where the timed count to 30 seconds with my eyes closed and head back, the pulse test, and touching my fingers to my nose. The one he said I failed is the test where he shined his light in my eyes. He then arrested me for being under the influence of a controlled substance as well. When I was placed under arrest, I asked for an attorney, and he told me that I did not have the right to one, and that he would bring me to the station and tell me why. He put me and my friend in the back of the police car where he then took us to the station. Once in the holding cell, he then brought in a paper for me to sign that said that they request I take a urinalysis. I told him that I wished to speak with an attorney before I signed this or made a decision. He told me that I had no right to. The whole time in custody he never read me my rights. I told him five times that I wished to speak with an attorney, and he never let me. He then told me to initial that I declined to take an urinalysis. I did, but put T.D.C. on the paper next to my initials. I was then taken with my friend to county jail and booked. Come to find out, my friend never said he was under the influance of a controlled substance, and also refused to take the urinalysis. No substance was found on either of us, nor any paraphernalia. We were not driving, so I assume no implied consent law applies. I think that I can get the charges dismissed, and sue the officer, city, and county for false imprisonment and arrest. Also sue the officer in civil court. What is anyone else's take on this?
 


CdwJava

Senior Member
chevy372 said:
The officer that came to the door had in his hands a urine test kit. He took my friend outside, and a time later knocked on the door. I answered and he told me my friend was under arrest for meth usage, and he had admitted it.
It sounds like your friend is on probation for something. And he certainly did not have him piss in a bottle outside, so they likely observed he was under the influence through other means.


At that time he asked me to take a FST. I agreed, and passed 3 out of 4 tests. He said after the 3rd test that the previous tests did not count and that the last one did.
Okay, you think you "passed". You likely didn't know what the officer was looking for.


The previous ones I had passed where the timed count to 30 seconds with my eyes closed and head back,
Also referred to as the Romberg Test ... sway, eyelid flutter, involuntary motions and twitches, and other observations are made during this test. It's not just about estimating 30 seconds.


the pulse test
This isn't a test - it's measuring your pulse. The standard standing pulse would generally be between 60 and 90. People who are under the influence of meth or other CNS stimulants will measure much, much higher (120+ BPM is not uncommon).


and touching my fingers to my nose.
And in that we also look for things other than just touching the finger to the tip of the nose.


The one he said I failed is the test where he shined his light in my eyes.
Poor eye reaction? Hippus? Delayed dilation? Rebound? There are several things to look for here as well.


He then arrested me for being under the influence of a controlled substance as well. When I was placed under arrest, I asked for an attorney, and he told me that I did not have the right to one, and that he would bring me to the station and tell me why.
He's right. You don't have a right to an attorney until both interrogation AND custody applies. At this time, you were just in custody.


Once in the holding cell, he then brought in a paper for me to sign that said that they request I take a urinalysis. I told him that I wished to speak with an attorney before I signed this or made a decision. He told me that I had no right to.
That depends. What did the form say? Unless it was a confession, they likely had no obligation to allow you an attorney prior to signing. Heck, they could have simply had a phlebotomist or a nurse stick a needle in your arm. A urine test is so much easier and less painful for you.


The whole time in custody he never read me my rights. I told him five times that I wished to speak with an attorney, and he never let me.
Okay ... if you confessed to being high on drugs, that statement can be tossed out.

Unlike TV the police do not have to read you your rights simply because you are under arrest.


We were not driving, so I assume no implied consent law applies.
You're right. However, the laws of evidence DO apply. They have a right to seize evidence so had they forced blood from you they could have done so. In many coutnies, you CAN be prosecuted based solely on the expert testimony of the officer. Your attorney would have to challenge the training and experience of the officer to conduct a DAR or DRE evaluation in order to beat the observation.


I think that I can get the charges dismissed, and sue the officer, city, and county for false imprisonment and arrest. Also sue the officer in civil court. What is anyone else's take on this?
On what basis?

An officer can make an arrest based on probable cause. If the officer had probable cause to believe that you were under the influence of a controlled substance, he can make the arrest. An arrest is most often still perfectly valid even after a case is dismissed or the suspect is acquitted.

Unless the officer was completely off base (i.e. an officer of similar training and experience would certainly NOT have made the arrest) the arrest will be perfectly lawful.

- Carl
 

chevy372

Member
CdwJava said:
It sounds like your friend is on probation for something. And he certainly did not have him piss in a bottle outside, so they likely observed he was under the influence through other means.
He's on differed judgement. He had filed a complaint against his wife with another officer 10 minutes prior at the police station. Why would they have not asked him to submit to the test while he was there?


CdwJava said:
Okay, you think you "passed". You likely didn't know what the officer was looking for.
Well, he said "ok, good job" after the tests I stated I passed.

CdwJava said:
This isn't a test - it's measuring your pulse. The standard standing pulse would generally be between 60 and 90. People who are under the influence of meth or other CNS stimulants will measure much, much higher (120+ BPM is not uncommon).
He stated it was within the normal rage.


CdwJava said:
Poor eye reaction? Hippus? Delayed dilation? Rebound? There are several things to look for here as well.
He only stated that the pupil was not getting small enough.


CdwJava said:
He's right. You don't have a right to an attorney until both interrogation AND custody applies. At this time, you were just in custody.
I asked if I was under arrest, after he placed the cuffs on me he said "Yes." I was just under the impression that once placed under arrest you have the right to an attorney. Damn that constituion for lieing to me.


CdwJava said:
That depends. What did the form say? Unless it was a confession, they likely had no obligation to allow you an attorney prior to signing. Heck, they could have simply had a phlebotomist or a nurse stick a needle in your arm. A urine test is so much easier and less painful for you.
The form said that I was under arrest for 11550 being under the influence of a controlled substance. It stated a case People v. Sudduth in 1966 (I found out later that it referenced a drunk man arrested for DUI and refused a urinalysis and FST) and because of that case, they requested my urine. It said that if they did not find anything, that I would still be booked, and it was up to the DA to determine whether he would still press charges. Also that if I refused it would be taken as an admission that I thought I was guilty, and that's why I refused. Then at the bottom, I do not have the right to an attorney before I make my decision to sign the paper because of that case. The case had nothing to do with the right to an attorney.


CdwJava said:
Unlike TV the police do not have to read you your rights simply because you are under arrest.
My bad, damn that constituion for lieing to me. The 6th admendment actually.


CdwJava said:
You're right. However, the laws of evidence DO apply. They have a right to seize evidence so had they forced blood from you they could have done so. In many coutnies, you CAN be prosecuted based solely on the expert testimony of the officer. Your attorney would have to challenge the training and experience of the officer to conduct a DAR or DRE evaluation in order to beat the observation.
They have to get a warrent to seize anything from my body. My 5th admendment right says so, something about testifying against myself. Prosecuted yes, but how often do they convict based soley on his opinion. The DAR is a 3 day class that the officer takes when he is first put on the force. This officer has been on for 9 YRS. and the DAR is taught by non-licensed medical experts. They are not registered nurses, doctors, or physicans.


CdwJava said:
On what basis?
wrongful arrest, wrongful imprisionment, and defimation of character.

CdwJava said:
Unless the officer was completely off base (i.e. an officer of similar training and experience would certainly NOT have made the arrest) the arrest will be perfectly lawful.
Another officer came and was confused as to why he was arresting us. He stated, "you were only suposed to let him know about his wife." Would not the officer at the PD have arrested him?


My main question is about him coming to my friends house. What other means would there be?
 
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CdwJava

Senior Member
chevy372 said:
He's on differed judgement. He had filed a complaint against his wife with another officer 10 minutes prior at the police station. Why would they have not asked him to submit to the test while he was there?
Beats me. It could be that another officer called or that a probation officer called and asked for him to be tested.

Besides, HIS issues have nothing to do with yours.


Well, he said "ok, good job" after the tests I stated I passed.
I often say, "Good" and "Thanks" as well. I don't tell people they passed, but, ya never know.


He stated it was within the normal rage.
Okay. That's good for you then.


He only stated that the pupil was not getting small enough.
That can be a bad sign.


I asked if I was under arrest, after he placed the cuffs on me he said "Yes." I was just under the impression that once placed under arrest you have the right to an attorney. Damn that constituion for lieing to me.
You have a right to attorney before questioning. You weren't being questioned.


The form said that I was under arrest for 11550 being under the influence of a controlled substance.
Yep. Most commonly used for CNS stimulants such as meth.


It said that if they did not find anything, that I would still be booked, and it was up to the DA to determine whether he would still press charges. Also that if I refused it would be taken as an admission that I thought I was guilty, and that's why I refused.
I'm not familiar with that form at all, so I really can't comment on it. Obviously your county has had an issue here and the DA or the agencies involved have used this form to somehow protect themselves. But, I don't know.


My bad, damn that constituion for lieing to me. The 6th admendment actually.
Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


And this was denied you ... how?


They have to get a warrent to seize anything from my body.
No,they do not. This is well-established Constitutional law ... there are USSC cases affirming this as well. Exigency is one of the exceptions to the warrant requirement. And in this case evidence is being destroyed (metabolized) every minute. Thus, an exigency exists.


My 5th admendment right says so, something about testifying against myself.
Your blood is not testimony, it is evidence.


Prosecuted yes, but how often do they convict based soley on his opinion.
It depends on the county. In San Diego County it happened frequently because the agencies there were squeamish about forced blood draws. I have never lost one.


The DAR is a 3 day class that the officer takes when he is first put on the force.
Actually, no. Not every officer has been to DAR training. It's a basic course, but can be sufficient to provide expert testimony when combined with other training and experience.


This officer has been on for 9 YRS. and the DAR is taught by non-licensed medical experts. They are not registered nurses, doctors, or physicans.
It depends on the training and who puts it on. It does not HAVE to be put on by medical professionals. We aren't making a medical evaluation, we are recording observations and interpreting those observations based upon the training we receive.


wrongful arrest, wrongful imprisionment, and defimation of character.
Good luck finding an attorney to take the case. There would have to be elemnts present that weren't clear in your posdt before I would think you have much of a case. But, it's your money.


Another officer came and was confused as to why he was arresting us. He stated, "you were only suposed to let him know about his wife." Would not the officer at the PD have arrested him?
I don't know. I have no idea what the officer at the PD saw, knew, or should have known. And I don't know what the officer at the scene knew or thought he knew about either of you.

You could be right and the whole thing was a foul up. On the other hand, it could be (and likely is) a perfectly lawful arrest.


My main question is about him coming to my friends house. What other means would there be?
There could be any number of reasons why he came there. I suppose you'll have to wait until your attorney receives the report before you'd know.

And before you start thinking of a civil suit, you had best beat the criminal charge. And keep in mind that beating the criminal charge does not mean that you have any grounds for a civil suit, it only means that it wouldn't likely be dismissed out of hand.

- Carl
 

LawGirl10

Member
Read the Constitution and CASE LAW interpreting the constitution before you make statements about the constitution "lying to you." Your belief about your 5th and 6th Amendment rights are completely wrong. Your perception of those rights are understandable, but erroneous.

The following is general information about U.S. Supreme Court rulings. Individual states may decide to provide more protection than the U.S. Constitution.

Just in general, your Miranda rights under the 5th Amendment are not implicated until you have custody and interrogation (both of them must occur). I don't see any evidence of interrogation.

Your right to an attorney under the 5th Amendment is not implicated just because you were arrested. As long as they don't interrogate while you are under arrest (or custodial situation that rises to the level of an arrest type situation), they don't have to provide you with an attorney.

Likewise, you do not have a self-incrimination issue under the 5th Amendment when they asked you to submit to chemical or field sobriety testing. The tests are not considered to be testimonial in nature so they do not implicate the self incrimination issue.

The 6th amendment right to an attorney (which is distinct from the 5th Amendment right to an attorney) is not implicated until you have been indicted. You were not indicted. You were merely arrested. There is a difference.

As for the sitation you specifically described, I am a little curious about your statement about the officer coming to the house with a urine test kit. That one needs more explanation.

If the police were there lawfully, they very well could make out a case for intoxication (liquor and/or drugs) even without a test.
 

chevy372

Member
interpertation of Supreme Court

I understand that you are a lawyer (overpaid mediator) and that your precepitions may be blurred. I carry all of my rights with me at all times and never waive any of them. Just because an Officer tells you something does not mean it is "the law". But yet they "illegally practice law" without a license everyday by telling a suspect what the law says. They also practice medicine without a license, by submitting (via their reports) evidence that they are not trained or authorized to do, and again they "illegally practice medicine". They go to a DAR (Drug Abuse Recognition) class is less than 20 hours over a weekend. I certainly would not want a nurse to even take my pulse if they only had that minimal amout of training. Would you feel comfortable have a doctor diagnose you with less than 20 hours of training?The Supreme Court does not interpert the Constitution, (is it written in Spanish?) they apply the Constitution to the case in front of them. I know that law school only has a one semister class called "con law" wherein you study the Constitution, yet all laws/regulations/statutes must be in harmony with the US Constitution or they are void ab initio. The facts are simple in this case. Two Officers came to the door of a house (no implied consent law applies) to give results of the report filed against his wife. I just happened to be on the couch and heard the whole thing. They started telling him "we are not babysitters and you need to stop reporting 'every' little thing that happens." Next thing you know they are requesting a field soberity test. After arresting him for refusing they next come back to the house and tell me "Your friend just admitted he is using "meth" and wants help, so we are arresting him and he wants you to lock up his house". He then started in the house, as I was pulling the door closed. He said hey your buddy needs his keys (Officer Singleton had his keys) I said he has his keys. He next said "hey save your buddy some money and turn off the lights". I said he makes enough money I just want to lock up his house as he requested me to do. The officer says hey just leave one on and turn off the other. As I was turning off the light, the Officer is shinning the light around the apt. I then came over turned on the front room light and said "hey man my friend has asked me to lock up his apt, go ahead look is there anything here?" He then looked around (did not come past living room) and said ok lock it up. Ask I shut the door and turned, he was ahead of me, he turned around and said why don't you step over here and then it began.
 

chevy372

Member
CdwJava said:
Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


And this was denied you ... how?
"...and to have the assistance of counsel for his defense." Now this may be a novel idea to you, but my "defense" starts with the Officer asking me my name! He is not there to help me!
 

CdwJava

Senior Member
chevy372 said:
I understand that you are a lawyer (overpaid mediator) and that your precepitions may be blurred.
Actually, I am not a lawyer - I work for a living.

(Just for you SJ ;) I couldn't resist ...)


I carry all of my rights with me at all times and never waive any of them.
Good. Nobody's asking you to.


Just because an Officer tells you something does not mean it is "the law". But yet they "illegally practice law" without a license everyday by telling a suspect what the law says.
Telling you waht the law says is not the "illegal" practice of law.


They also practice medicine without a license, by submitting (via their reports) evidence that they are not trained or authorized to do, and again they "illegally practice medicine".
An dthat statement is not true, either.


They go to a DAR (Drug Abuse Recognition) class is less than 20 hours over a weekend.
Actually, it's 24 hours or more during the week.


Would you feel comfortable have a doctor diagnose you with less than 20 hours of training?
Good thing the officer isn't trying to diagnose an illness.


The Supreme Court does not interpert the Constitution, (is it written in Spanish?) they apply the Constitution to the case in front of them.
It is their interpretation that the rtest of us must follow. Thus, for practical purposes, they interpret the Constitution.

The alternative is that we each apply the Constitution as we THINK it should be interpreted. That would be a recipe for chaos.


Ask I shut the door and turned, he was ahead of me, he turned around and said why don't you step over here and then it began.
If he observed you and your behavior indictaed you might be under the influcence of a controlled substance, he had every right to detain you.

Any issues with regards to your friend are up to your friend to raise - not you.

Hire an attorney and fight the under the influence charge. If you beat that, THEN see if an attorney will take your civil case. The details are to convoluted for me to make any real sense of it, so let an attorney take a look at it.

- Carl
 

CdwJava

Senior Member
chevy372 said:
"...and to have the assistance of counsel for his defense." Now this may be a novel idea to you, but my "defense" starts with the Officer asking me my name! He is not there to help me!
Actually, the assistance of counsel applies to court proceedings and not an arrest and the collection of evidence.

Perhaps you should do a little more reading. It is clear cut law that they do not have to call an attorney because you ask for one. You also have no right to an attorney before a chemical test - that, too, is clear cut USSC case law.

Don't like it? Start a drive to change the law. Call your Congressman.

- Carl
 

chevy372

Member
LawGirl10 said:
Likewise, you do not have a self-incrimination issue under the 5th Amendment when they asked you to submit to chemical or field sobriety testing. The tests are not considered to be testimonial in nature so they do not implicate the self incrimination issue.

The 6th amendment right to an attorney (which is distinct from the 5th Amendment right to an attorney) is not implicated until you have been indicted. You were not indicted. You were merely arrested. There is a difference.
Maybe I was not explict regarding the IV, V & VI amendment rights I was speaking about. 1) My IV amendment right to "...be secure.....in my persons, houses, ....against unreasonable searchs and seizures, ....shall not be violated, and no Warrants shall issue,...." Now when an officer is attempting to take something "out of" my person (body) and it is not during a traffic stop (no implied consent) he has me in his custody, there are no extringent circumstances. Yes it is true the evidence is erroding, but the evidence (of narcotics) takes approx 4-7 days to get out of your system. Therefore the Police have plenty of time to get a warrant from a judge. Even if the judge doesn't sign the warrant for a day of two, the deminished amount will still show up and ANY amount (of the narcotic) is against the law. 2) As to my V amendment right. I was speaking about the right not to have to bear witness against myself and if the IV amendment is violated (by taking blood/urine out of my person without warrant (they have me in their custody) then it would still be evidence they were seeking, but again they have time to get the warrant and pursuant to the V amendment I cannot "...be deprived of life, liberty or property without due process..." and yes my blood is MY property they are taking without due process of law as no judge has signed a warrant. Policemen do not determine probable cause.....Well unless this Policeman is a judge, judge pro tem, etc the Officer is not part of the judicary branch he is part of the executive branch and ONLY a judge or Grand Jury can determine probable cause. The Officer may have reasonable cause, reasonable suspicion, suspicion, but he cannot make a determination of probable cause. 3) As to the VI amendment's right to assistance of counsel. The last line states "...and to have the assistance of counsel for his defence". My defence starts the minute I am DETAINED and cannot walk away. This Officer is not there to help me out, he is there investigating a crime he feels has been commited. I am entitled to my counsel right then and there. If you don't believe me then just take a look at the Jon Ramsey case, her parents did it right. The first thing they did was talk to the officers and then the detectives wanted to come talk to them. They had already seen this coming and had hired legal counsel. So this right does apply BEFORE any charges are lodged. I look forward to your responses.
 
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CdwJava

Senior Member
chevy372 said:
Now when an officer is attempting to take something "out of" my person (body) and it is not during a traffic stop (no implied consent) he has me in his custody, there are no extringent circumstances. Yes it is true the evidence is erroding, but the evidence (of narcotics) takes approx 4-7 days to get out of your system. Therefore the Police have plenty of time to get a warrant from a judge.
Not necessarily true. It depends on the nature of the drug. And, you are not going to be legally under the influence for the full 72 hours that it takes the typical CNS stimulant to work through the system.

Plus, the concentration may well fall below the accepted standard set to establish impairment in as little as 8 hours (depending on quantity and substance used). Thus, there IS an exigency.


Even if the judge doesn't sign the warrant for a day of two, the deminished amount will still show up and ANY amount (of the narcotic) is against the law.
Not true. At least not in CA. If that were the case, I could be arrested for taking prescription meds.

The levels are set by the lab for particular NG/ML of blood that the courts in the jurisdiction have expressed as being sufficient for legal impairment. Anything below the cutoff level will not come back as a positive result.


2) As to my V amendment right. I was speaking about the right not to have to bear witness against myself and if the IV amendment is violated (by taking blood/urine out of my person without warrant
Read more ... the courts have consistently ruled that this is not testimony. We take rape kits from suspects without warrants and can take blood, breath and urine without warrants as well. For DNA you'd have a point - it won't degrade or change with time. But intoxicants and biological evidence (such as with sex crimes) CAN degrade.


Policemen do not determine probable cause.
Actually, we act based on what we believe to be probable cause and then a judge decides later if that was the case. When we make an arrest, a declaration of probable cause accompanies the arrest and booking for a judge's review later.


The Officer may have reasonable cause, reasonable suspicion, suspicion, but he cannot make a determination of probable cause.
He may arrest on probable cause. If the officer believes that probable cause exists to make an arrest, he may certainly do so. I don't have to call the judge in the middle of the night and ask if I may handcuff someone.


3) As to the VI amendment's right to assistance of counsel. The last line states "...and to have the assistance of counsel for his defence".
Your arrest and your booking process are not part of the court process. The attorney comes later. All your request does is tell the officers that they may not interview you or use anything they solicit from you in violation of Miranda against you.


My defence starts the minute I am DETAINED and cannot walk away.
Not true ... at least so far as it pertains to your right to have an attorney during the process.


I am entitled to my counsel right then and there.
Not according to USSC and other case law.


If you don't believe me then just take a look at the Jon Ramsey case, her parents did it right.
They were not arrested. They did not ask for an attorney at booking. They were asked to come in and make a statement. Your situation is way different.

Had you been interviewed after requesting an attorney, you'd have a point. But, it is well established law in the United States that an attorney consultation is NOT required prior to extracting blood or other evidence and no warrant is required. You may not like it, but that is the status of the law. And it is the current status of the law that must be argued, not what you think the law SHOULD be.

- Carl
 
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seniorjudge

Guest
CdwJava said:
Actually, I am not a lawyer - I work for a living.

(Just for you SJ ;) I couldn't resist ...)
Our eyes and ears are everywhere....
 

chevy372

Member
Actually, the assistance of counsel applies to court proceedings and not an arrest and the collection of evidence.

You also have no right to an attorney before a chemical test - that, too, is clear cut USSC case law.
I think you may want to do more research yourself. If what you say is true that "the sixth amendment ONLY applies to court proceedings and not an arrest..." then I guess what the parents in the Jon Ramsey case did was ILLEGAL? They talked to the police the day of the murder, and when detectives called to set up an appointment to gather more evidence (confessions) they exercised their RIGHT to counsel immediately. They knew they had rights and exercised them. The Police sure can't exercise your rights for a suspect. If the suspect does NOT know what his rights are then that is on him/her. Many people have an attorney BEFORE ANY CHARGES are filed and use this attorney to advise them on what LEGALLY they should do. This is not an admission of guilty it is their right. So the VI amendment does NOT only apply to court proceedings. If I have this right I have it AT ALL TIMES not just limited to after the over zealous Officer (who I suspect is lazy and doesn't want to gather evidence on his own) has violated my rights and took it from me without warrant. If this evidence is in my body, it would fall under the IV amendment. ("The right of the people to be secure in their PERSONS, houses, papers, AND EFFECTS,.....) The forefathers stated persons FIRST and if you want to say that my blood or urine is not part of my person it is evidence then it would fall under MY effects and they still cannot TAKE it without a warrant. The clear cut law that you speak of is not so clear. All the cases that support your position are cases where the person was operating a motor vehicle therefore it was implied consent cases the court was ruling on, and yes the court said that the car could move out of the county before a warrant could be obtained. But when you have the suspect in custody I don't think (unless he escapes) that the suspect is going anywhere and there are no extringent circumstances as to IV amendment. This is well settled law (implied consent) regarding the exceptions to the fourth amendment, problem in this case is I was not driving a vehicle at any time, I was in a house. I did not ask the officer to CALL my attorney, I said I didn't want to answer any more questions or take anymore tests (had already submitted to several and was now under arrest) until I consulted my attorney and he told me I didn't have the right to do that I had to take the UA. He should have stopped his interrogation right then and there and just booked me as I had just envolked my right to remain silent. This Officer ever told me I did not have the right to remain silent. Some and I emphasis some Officers are a bit over zealous and want that promotion a little too much for my liking, but I was very respectful to this Officer and he was respectful to me. Yes he could have just strapped me down and taken my blood, but that just would have led to a bigger award in a "violation of my constitution rights" suit that will be filed. Now as to your second point that the evidence is erroding very fast. A narcotic takes approx 4-7 days to leave your system. This is plenty of time for the Officer to go get a warrant, as ANY amount of the narcotic is illegal, so even if the judge didn't sign the warrant (and he will based on the Officer's reasonable suspicion) for two or three days the narcotic/evidence would still be there. Additionally it has been mentioned several times that the Officer has probable cause. This is a misnomer. Officers DO NOT determine probable cause, (unless he is also a sitting judge or grand jury) judges and grand juries do. Officers get suspicion, reasonable suspicion and sometimes actually see a crime being commited, but only the judicary can determine probable cause, not an Officer of the executive branch of government. The reason being that Officer is getting pay rasises, promoted, comendations, etc based on his preformance and we sure would not like to go back to old england where this over zealous Officer could arrange the facts to meet his circumstances for arrest.

Defendant in Error, Paul
 
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seniorjudge

Guest
Well unless this Policeman is a judge, judge pro tem, etc the Officer is not part of the judicary branch he is part of the executive branch and ONLY a judge or Grand Jury can determine probable cause. The Officer may have reasonable cause, reasonable suspicion, suspicion, but he cannot make a determination of probable cause.

The cops are a branch of the judiciary and make determinations of probable cause all the time. The court will tell the cop if he is right or wrong in that determination.
 

CdwJava

Senior Member
chevy372 said:
then I guess what the parents in the Jon Ramsey case did was ILLEGAL? They talked to the police the day of the murder, and when detectives called to set up an appointment to gather more evidence (confessions) they exercised their RIGHT to counsel immediately.
They were not arrested and asked for a blood sample. They were asked to make a statement. Blood is not a statement. There IS a difference.


So the VI amendment does NOT only apply to court proceedings.
The PRESENCE of an attorney does NOT apply to booking and blood tests.


The clear cut law that you speak of is not so clear. All the cases that support your position are cases where the person was operating a motor vehicle therefore it was implied consent cases the court was ruling on,
No, not true. And when I get to the office I can cite chapter and verse on case law permitting chemical tests on suspects for drug influence. I don't keep that stuff here at home, however.


I said I didn't want to answer any more questions or take anymore tests (had already submitted to several and was now under arrest) until I consulted my attorney and he told me I didn't have the right to do that I had to take the UA.
He was right in that the USSC said you don't have the right to an attorney before a chemical test. You DID have every right not to answer any questions, however.


Yes he could have just strapped me down and taken my blood, but that just would have led to a bigger award in a "violation of my constitution rights" suit that will be filed.
And when did the court change it's opinion in this area?


Now as to your second point that the evidence is erroding very fast. A narcotic takes approx 4-7 days to leave your system.
Okay ... let me explain this again ... a CNS stimulant can leave your system in 72 hours ... other drugs have varying degrees of passage to be as little as 8 hours and longer. But! The concentration of metabolytes or drug in the blood will diminish. Inside of 24 hours, most drugs will dissipate to the point that (in CA) that they will drop BELOW the cutoff established by the lab and the local courts to prove impairment. Hence the reason to take the test ASAP.


This is plenty of time for the Officer to go get a warrant, as ANY amount of the narcotic is illegal
Not true. Read The Health and Safety Code of California. "ANY" amount is NOT illegal.


Officers DO NOT determine probable cause, (unless he is also a sitting judge or grand jury) judges and grand juries do.
Officer develop probable cause and this cause has to be affirmed by a judge. If I believe Probable Cause exists, I may make an arrest based upon that cause. A judge signs off on the PC after the arrest, or (on rare occasions) rejects the booking. And later, the PC can also be challenged in court as well.

The officer is not the final arbiter of probable cause, but we do devlop the cause and make an arrest based upon that cause. Again, I do not have to call the judge and ask him if I can make an arrest.

- Carl
 
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