Help me settle an argument with hubby, please!

Hubby says if you have ever been near a murder scene and the police want to check all the DNA of people in that vicinity against DNA found at crime scene they can without warrant or even suspicions against you, force you to give DNA for testing.

For instance lets say there is a party, several night later that home become a crime scene, hubby says the police can force everyone to give DNA so they can verify what DNA belongs to whom. Thus clearing certain individuals or finding the killer.

I say the police can request your DNA and if you want to give it ,you can, but to force you to give up your DNA they must show just cause to warrant such evidence and they must obtain a warrant.

Who is right?

You are.

In order to obtain DNA from anyone, either consent or a warrant is required.

It can also be obtained through discarded articles such as cups, cig. butts etc.

Semper

They need a warrent, but not cooperating makes you high on the suspect list and they can detain you for 24 hours while they get the warrent.

Plus, the warrent wouldnt be hard to get.

From what im aware they cannot force you, they can request, If they have reason to think you are more a part of the event they would have to issue an arrest warrent and do it under those conditions,

Originally posted by semperfortis
You are.

In order to obtain DNA from anyone, either consent or a warrant is required.

It can also be obtained through discarded articles such as cups, cig. butts etc.

Semper

Yes you are right it is the same in a drink drive case but if you refuse to give a sample it's like an admission of guilt and you will be arrested.

asala,

An arrest warrant wont do it. It takes a Search warrant that fills the requirements of the 4th Amendment. An arrest warrant does not give us the ability to search anywhere except the outside of the body and a reasonable amount within reach of the suspect. (Search Incident to Arrest)

The acquisition of DNA being invasive, the SC has upheld the need for a search warrant in all cases excluding those of consent.


Also that 24 hour waiting period is variable state by state and even department by department. Here it is a "reasonable time." Usually accepted as 4 hours. It is specifically 4 hours in Delaware.

Semper

No,

You can NOT be arrested for refusing to give DNA.

DUI is different as it deals with the PRIVILEGE to drive and not a specific crime under a criminal code. Also when you obtain your D.L. you give permission to have your blood alcohol taken when signing the paperwork for your license.

By the way, you can not be arrested for refusing to give a breath sample either. If the Police Officer has probable cause, he may compel you to give a blood sample, but ONLY if Probable Cause exists.

Semper

ps. glad to answer any questions

S

Thanks semp, Im not clued up on this just stating what i think i may have heard lol,


though, Could it e different in other countrys, like here in the UK?

Now that is VERY possible.

I have absolutely NO (0) Zip, experience in other countries as far as police work goes. I have traveled extensively, but always managed to NOT get locked up. :w::w: no matter now much of this I did. HAHAHAHAHA

Semper

Originally posted by kuhl


Yes you are right it is the same in a drink drive case but if you refuse to give a sample it's like an admission of guilt and you will be arrested.

that sounds like a violation of your fourth amendment rights. and maybe your fifth .

So another question on the drivers license, that when you sign your drivers license you are giving the right to take your blood if you refuse to take the breath test for alcohol. I remember when I got mine the worker at the DMV said I had to sign it or it was not legal, she insisted I sign it before I left the building. Way back in time when you acutally had to have the signature in ink, now I think they have you sign it and they imprint it on the license.

So what if you are aware of what you are signing and refuse to sign, can they deny you a license? Isn't this going against your rights, being forced to give someone permission to take your blood or else no license to drive?

They can request a sample to anyone. If someone don't want to give by request, they can get a warrent and force you. And they don't have to have a cause to believe you are guilty to get the warrent if they are trying to rule people out.

Of course laws change, but the last time I studied, this is the way it was.

1st and foremost; ALL repeat ALL, warrants are issued on what is called an affidavit of Probable Cause.
This includes but is not limited to, Search Warrants, Arrest Warrants etc. The Warrant required to draw blood is a simplified search warrant of the body. Same with DNA.

This document is the testament of the requesting party, ie. police officer usually or prosecutor, in which probable cause is given to support the allegation that a criminal offense has been or is going to be committed.

ALL warrants require Probable Cause. Probable Cause is defined as Physical evidence or testimony that would lead a reasonable person to believe a crime has been or is going to be committed. A warrant shall not be issued based solely on testimony!!! It requires some amount of "hard" evidence to support the testimony, however direct testimony can carry a lot of weight depending on the Judge, the Officers tenure and the seriousness of the offense.

A license to drive is a privilege "GIVEN" to you by the state. It has absolutely NOTHING to do with rights or the constitution and can be revoked for ANY reason by the state. That is the kicker, no where does the constitution cover a license to drive, so there are no rights involved in it. You don't sign, you don't get one. That simple. You do sign and you are acknowledging your cooperation in giving a sample of breath or blood to determine your blood alcohol content. Now, that being said, you can still refuse and all that will happen by a simple refusal, is you can lose your license. The Officer can only COMPEL you to give blood, if he has PROBABLE cause to think you have exceeded the legal limit. That is accomplished by field sobriety tests, observations and of course the ever present video.

Any other questions?? I love it

Semper

deny him some pie...


man I need to stop posting today, I'm just like spewing forth.


I apologize.


if anyone needs me, I'm on smoke break.

Come back lysergic, come back... !!!!!!:w:

We MISS YOU!!!!

:bash::bnghd:

Semper

It varies by jurisdiction.

In Texas, I'd hate to tell a judge that I needed DNA to "rule out all the innocent people at the party."

There is huge precedent, and some case law probably, for not violating the privacy of persons who are not serious suspects.

And I'm fairly confident that in this state, a judge would refuse to issue more warrants, based solely on someone's refusal to cooperate with police, even in a murder investigation. Judges really do like to tell cops to go do their jobs. They also HATE frivolous warrants.

On TV shows like Law & Order (NY law-based), they say stuff like "we'll just have to get a warrant, and then we'll come in anyway."

Don't ever fall for that. When a cop tells you he'll just go get a warrant, tell him, "cool, my lawyer will want it as a receipt."

Also it never hurts to know the name of at least one lawyer, to throw around if a cop ever hassles you. Then you can say:

When, or if, you ever get that warrant, don't bring it to me, just call the law offices of Jackie Chiles, and I'll meet you down there.

Chances are, unless the cops want you, personally, they will give up when you start talking about lawyers.

When I was involved in interrogations, it was really easy to spot the perps. 90% of the time, innocent interviewees start demanding a Bible and a lawyer. The guilty ones always think they can 'splain their way out of things, because their alibi is SOOOOO clever. . . .

IF the cops are just trolling, they'll buzz off when you mention lawyers. If they are THAT serious, they really will just come back with a warrant.

All that innocent guy-framed is pretty much just TV plotlines. The vast majority of cops just want to catch the perp and go home.

.

I hate to be controversial, HAHAHAHAHA

BUT

The regulations involving warrants all stem from the 4th Amendment of the Constitution. So the only thing that should vary, is the opinion of the sitting judge that reviews the affidavit and how it is served.

I'm not going to say that certain courts do not reach outside of their power and violate SC decisions, but as a rule there are Supreme Court decisions that are to be followed in the issuance of ALL warrants.

REMEMBER!!!! Probable Cause MUST (MUST) exist and be present in the affidavit before ANY judge issues a warrant. (Or it is supposed to be)

Semper

Originally posted by semperfortis

So the only thing that should vary, is the opinion of the sitting judge that reviews the affidavit and how it is served.

Semper

Exactly. And unless there is review by a higher court, that is the final word.

YET,

The warrant is ALWAYS reviewed by a higher court.

Most warrants are issued on the magistrate level, the reviewing court will always be CCP, or Superior Court level and then where ever the trial is, the warrant get another review.

Semper