Taimoor Rana is seasoned criminal defense attorney specializing in DUI related cases. He shares his expert legal opinion here Is it Justified to Forcefully take Blood for Testing? »
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- When a police arrest any citizen for DUI then that arrested person has the right to choose that either he or she is willing to take a breath test or a blood test. Of course, there is always a third choice that is to refuse to take either.
Refusal to take test lead to bad consequences
The individual can do this, but it will lead towards bad consequences. These are that he or she will face an increased jail sentence or a longer driver’s license suspension or, in most states, that person who refuse any test has to face both these. Now the problem is that some police officers just won’t accept their refusal.
Now the Law enforcement agencies forcefully take the Test
It has been noticed that now among law enforcement agencies it has become an increasing practice to simply ignore this third choice and they forcefully take blood from the arrestee (although some this practice has been banned by some states).
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What Happened to the Presumption of Innocence? »
This happens in most countries of the world, an illegal charges by the State forces the accused to prove himself innocent. However, in America, the presumption of innocence has always been a fundamental part of our rights as a free people.
This basic protection that has been given against the power of the government has been recognized as flowing from the 5th, 6th and 14th Amendments to our Constitution. As said by the United States Supreme Court, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. U.S., 156 U.S. 432 (1895).
So what has happened to this presumption of innocence in a case of drunk driving? Can we consider this as another example of “the DUI exception to the Constitution”? So let us take a look at how this fundamental right has been slowly eroded by our DUI laws….
So now Let us assume that you have been arrested for drunk driving, and a reading of .09% blood-alcohol concentration (BAC) is shown by breathalyzers. By the breathalyzer you will be charged probably with two crimes:
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10 DWI/DUI Myths and Their Facts – Part-3 »
Myth # 8:
Law enforcement officers can’t influence the BAC reading of a breath-testing machine.
Fact:
Law enforcement officers can and do influence BAC readings. Law professor and lawyer Lawrence Taylor quotes Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington. He said that, By far, the error which is most overlooked in breath testing for alcohol is the pattern of breathing…. During the breath the concentration of alcohol changes considerably… After discarding the dead space, the first part of the breath, has an alcohol concentration much lower than the equivalent BAC. Whereas, the alcohol concentration of the last part of the breath is much higher than the equivalent BAC. The last part of the breath could be over 50% above the alcohol level….Thus, it maybe indicated by a breath tester reading of 0.14% which has been taken from the last part of the breath that the blood level is only 0.09%.
It has been explained by Professor Taylor that, many police officers are aware of this error. They also know that if the machine opposes their judgment that the person they arrested is intoxicated, then it will effect their reputation.
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