Why Not lower the legal Limit?

[justalayman]

Ok, let me be more exacting.

Can you find a case where there was a forced blood draw to determine BAC in the state of Penn when they were charged with violation of section 3802 of the Penn code?

I know that is very specific but any other reason to withdraw blood, although similar, is arguable when applied to violation of section 3802 and the applicability of section 1547.

 

[CavemanLawyer]

Ok, let me be more exacting.

Can you find a case where there was a forced blood draw to determine BAC in the state of Penn when they were charged with violation of section 3802 of the Penn code?

I think this is close enough.
http://www.superior.court.state.pa.us/Opinions/a46021.pdf

At its heart, the request to submit to a BAC test is a request for a
search and/or seizure of the person who is the subject of the request, and is
therefore a matter of search and seizure law, or a derivative thereof. A BAC
test is evidence of a person’s level of intoxication and, technically speaking,
once a police officer develops probable cause to believe a driver has been
driving under the influence of intoxicating substances, the state may
constitutionally seek evidence to this effect. Schmerber v. California, 384
U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Theoretically speaking, a
search warrant or court order could be sought and issued authorizing the
BAC test and if the subject of the search warrant or order resisted, he would
be subject to sanctions for contempt of court. Practically speaking, seeking
a search warrant, or other court order, is not a viable option since the
evidence of a person’s BAC dissipates fairly rapidly and the act of seeking
and obtaining a warrant/order will require a period of time during which the
suspect’s BAC will be in a state of flux and will eventually dissipate. Given
the above, many states throughout the country have passed implied consent
legislation which is tied to the granting of a driver’s license.

The court very clearly states that an officer in Pennsylvania can obtain a blood search warrant in the event that any DUI suspect refuses to submit a blood sample. The court further explains why this is overly burdensome to do for every DUI case and how evidence is lost since it takes time to procure the warrant. The Court explains why this is the rationale for implied consent laws which create an exception to the requirement, THAT ALL STATES HAVE IN THEIR CONSTITUTIONS, that a search and seizure must be pursuant to a warrant. Most importantly, and what I've been saying all along, is that the search for blood is no different than the search for any other piece of evidence. It falls within the purview of the US constitution's 4th Amendment and Pennsylvania's equivalent Constitutional provision. As such you can ALWAYS obtain a warrant to procure the evidence. The implied consent laws just give you an easier way, an exception to the warrant requirement.

You seem to be basing your argument on this language, "If any person...refuses to [submit to chemical testing], the testing shall not be conducted." I guess you are saying that this language trumps a warrant. The court addresses this argument in this case.

75 Pa.C.S. § 1547.
4 The Pennsylvania provision follows:
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of
section 3802 is requested to submit to chemical testing and
refuses to do so, the testing shall not be conducted but
J. A33016/05

Most implied consent statutes, including Pennsylvania’s, allow an individual to
refuse the request.4 However, this right to refuse, with attendant consequences, is not a constitutional right and cannot be construed to mean that the state is without constitutional authority to seek evidence. Implied consent laws notwithstanding, from a constitutional standpoint a request to submit to a BAC test is similar to a police officer’s seekingconsent to a warrantless search of a car or residence. Absent an exigency, the police have no constitutional right to conduct the search without a warrant

This means that if police do obtain a warrant they can make the search even if the person refused to consent. Practically speaking this is not done on minor DUI offenses because it is overly burdensome. But it is done in many counties for felony DUI's and yes they do strap the person down and forcefully take the blood. Some counties set their judges up with fax machines and have an on call judge at all times. The officer's affadavit is faxed to the judge and the warrant is signed and faxed back. The blood can then be forcefully drawn in a matter of minutes so that the fleeting BAC evidence is not lost.

 

[CdwJava]

And, of course, given the nature of blood and alcohol, you should be able to argue an exigency. But, there may well be some states where court interpretations do not hold to the need for this exigency.

In my state we rely on the federal standard and as such, we can seize blood with a refusal and without a warrant. By the time we got a warrant, the person would be sober (or nearly so) so we tend not to do so.

- Carl

 

[paguy88]

I wonder in my state PA. if there was a forced blood draw for a non accident dui stop say a check point what would the public say? Once they found out this happened...

 

[CdwJava]

I wonder in my state PA. if there was a forced blood draw for a non accident dui stop say a check point what would the public say? Once they found out this happened...

That's a political question. The real issue is whether or not it is lawful.

Out here (and, I imagine in most states) it is more a matter of policy (i.e. a political decision) NOT to compel blood for lesser offenses than a matter of law.

- Carl

 

[JustAPal00]

My thought is that you must have had too much to drink before posting this...
Either that, or you just got out of jail for a DUI that you don't feel you deserve.

Driving is NOT a right. If you don't like the way it is, don't drive.

It should be! My taxes pay for that road, and I pay tax on the fuel I am burning.


I don't like the BAC method of testing sobriety. Everyone is different. Some people are impaired at .08 others are not. I'm more in favor of a test to determine judgement and reaction time. It could be done on a laptop in the back of a police car.

 

[CdwJava]

It should be! My taxes pay for that road, and I pay tax on the fuel I am burning.

Paying for it does not confer it as a right. If you wish to support a Constitutional Amendment to make driving a right, go right ahead and give it a go.

I don't like the BAC method of testing sobriety. Everyone is different. Some people are impaired at .08 others are not.

Not true at all. A person IS impaired at .08 - they may not THINK they are, and they may not appear to be to everyone, but clinically, they are. That is one of the reasons that .08 has become the 'per se' level.

I'm more in favor of a test to determine judgement and reaction time. It could be done on a laptop in the back of a police car.

Contact NHTSA and arrange for the validation studies and the clinical trials ... then arrange for the billions of dollars that this would cost to implement nationwide.

There are many things that CAN be done, but what CAN be done and what can PRACTICALLY be done, are different animals.

- Carl

 

[sked]

I have read these forums for a long time - never posted. I think what the OP is saying (correct me if I am wrong) is if there is a no tolorence policy people would know you either drink or drive - not both. I like the idea myself. By the way I have had a DUI and I did not know I had too much to drink and I only had a few beers.

 

[JustAPal00]

Paying for it does not confer it as a right. If you wish to support a Constitutional Amendment to make driving a right, go right ahead and give it a go.


Not true at all. A person IS impaired at .08 - they may not THINK they are, and they may not appear to be to everyone, but clinically, they are. That is one of the reasons that .08 has become the 'per se' level.


Contact NHTSA and arrange for the validation studies and the clinical trials ... then arrange for the billions of dollars that this would cost to implement nationwide.

There are many things that CAN be done, but what CAN be done and what can PRACTICALLY be done, are different animals.

- Carl

When I was in college I took part in an alchohol awareness program. It was administered by the PA State Police. They took 5 girls and 5 guys and had us drink a beer or mixed drink every 20 minutes. Between drinks we did a battery of field sobriety tests and computer tests. I saw the difference first hand between how different people were affected.

 

[CdwJava]

When I was in college I took part in an alchohol awareness program. It was administered by the PA State Police. They took 5 girls and 5 guys and had us drink a beer or mixed drink every 20 minutes. Between drinks we did a battery of field sobriety tests and computer tests. I saw the difference first hand between how different people were affected.

You saw the difference first hand of how the test subjects handled the outward manifestations of their inebriation in a controlled environment. The medical studies are pretty clear - at .08 BAC your systems ARE impaired. Beginning at as low as .02 the impairment can be measureable, and by .08 you ARE impaired.

- Carl

 

[VeronicaLodge]

I have read these forums for a long time - never posted. I think what the OP is saying (correct me if I am wrong) is if there is a no tolorence policy people would know you either drink or drive - not both. I like the idea myself. By the way I have had a DUI and I did not know I had too much to drink and I only had a few beers.

the op doesnt need a no tolerance law for that he can just put that as a rule on himself. he can choose to never drive if he drinks even one sip.

i feel the same way about helmet laws for motorcyclists, just because there isnt a law to wear one doesnt mean it is not the smartest and most prudent thing to do anyway.

 

[tranquility]

You saw the difference first hand of how the test subjects handled the outward manifestations of their inebriation in a controlled environment. The medical studies are pretty clear - at .08 BAC your systems ARE impaired. Beginning at as low as .02 the impairment can be measureable, and by .08 you ARE impaired.

I come back for just a minute, look around and find the debate continues without talking to one another.

.02 is not the problem driver who causes accidents. .08 is not the problem driver who causes the majority of accidents. The fatal accident is generally caused by problem drinkers with a much higher BAC levels. The per se limit makes it easy for the police to arrest and convict people who are not causing the problem of deaths on the road from drunk driving. I have not seen statistics regarding the BAC of those arrested, but bet there is a substantial number arrested around .08. There is little evidence, if any, that the per se limit has reduced the deaths from drunk driving. Society has arrested and given a criminal record to millions, created a drunk driving industry where lawyers, courts, police (cities) profit from arresting people who are not the source of the problem it purports to be trying to solve.

Depending on how you define "impariment", a person is impaired within 90 minutes of waking up. They are impaired within certain times after eating carbohydrates (depending on the type of carb the time changes). They are impaired when angry, when listening to the radio or when talking on the phone. The key is not to find some "impairment" but to find the level of impairment which negatively affects driving to an unacceptable level. This should not be a statistical calculation designed to increase the conviction rate.

 

[paguy88]

Not true at all. A person IS impaired at .08 - they may not THINK they are, and they may not appear to be to everyone, but clinically, they are. That is one of the reasons that .08 has become the 'per se' level.



I will not agree with this.. .10 use to be the limit... now .08 why??? For states to get federal HWY money if they did nto change it they where going to lose it I believe under a bill from the clinton Administration...

I can not believe that suddenly people decided after 100 years of people drinking that .08 you are to drunk to drive.. when it use to be .10

Now as far as FST test go... My neighbor is a cop he was part of some study by a local university with 20 people(not sure the mix) that they where told had drank different amonts of booze... they gave FST too all 20... 47% failed.... peoblem with this was actually NO ONE had a drop to drink.... they where just told they did.... makes you think...

 

[Sweetiepi]

I'd like to see an "Intoxilyzer" device as standard equipment in every car, mine certainly included. Then everyone would remove the burden of judging for themselves if they have had too many drinks or not. At least those over the per se limit. But alas, that would devastate a very big industry.

That is a great idea BMFL. Perhaps no one really thought about it before. We are all adults if we drive, but it does offer another level of confidence to an enormous nation of motorists.

 

[justalayman]

I think this is close enough.
http://www.superior.court.state.pa.us/Opinions/a46021.pdf



The court very clearly states that an officer in Pennsylvania can obtain a blood search warrant in the event that any DUI suspect refuses to submit a blood sample.
.

Not even close. This is the same as the others. It deals with the release of the BAC from a blood test that was already performed and the need for a warrant. Did you read this on page 12:

Therefore the trial court properly
suppressed the blood test results.

Did I miss something in there?

Theoretically speaking, a
search warrant or court order could be sought and issued authorizing the
BAC test and if the subject of the search warrant or order resisted, he would
be subject to sanctions for contempt of court.

It states nothing about physically forcing a suspect to undergo a blood draw. It speaks that there would simply be contempt of court charges.

So, want to try again?