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Source | DUI Defenders | Implied Consent
Under an implied consent law, any person who operates a motor vehicle in the state is deemed to have consented to a DUI chemical test. The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law’s foundational fallacy that a driver's presence on a state's highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer.
Originally posted by kerontehe
What is the difference between a mouth mucosal swab and a breathalzer conducted at roadside?
Other than the wait time for results?
Both involve an invasion of personal space. Both involve taking a sample that is unnique to the individual. And in both cases the individual has the right to refuse to submit to the testing.
Does refusing to submit give "probable cause" or make that individual a "person of interest"? Depends on the rest of the circumstances.
Originally posted by kerontehe
reply to post by goosdawg
Agreed. even though the implied consent has been challenged sucessfully in court.
My point is - the article states that the swabs are collected from "persons of interest".
American Civil Liberties Union | Know Your Rights: What to Do If You're Stopped by the Police
1. What you say to the police is always important. What you say can be used against you, and it can give the police an excuse to arrest you, especially if you bad-mouth a police officer.
2. You must show your driver's license and registration when stopped in a car. Otherwise, you don't have to answer any questions if you are detained or arrested, with one important exception. The police may ask for your name if you have been properly detained, and you can be arrested in some states for refusing to give it. If you reasonably fear that your name is incriminating, you can claim the right to remain silent, which may be a defense in case you are arrested anyway.
3. You don't have to consent to any search of yourself, your car or your house. If you DO consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ASK TO SEE IT.
4. Do not interfere with, or obstruct the police -- you can be arrested for it
Originally posted by eyewitness86
reply to post by benign.psychosis
You are dead wrong again. You do NOT understand the law at all. A " Reasonable ' search is one that is based upon ' PROBABLE CAUSE ' which requires a hell of a lot more than some serial killer being loose to grab a citizen and demand DNA!!
It is NOT reasonable to assume that everyone out there is likley the killer, now is it? Of course not. Then it is NOT reasonable under the law. Cut and dried. YOU ask any attorney, and they will tell you that the cops' do NOT have the right to insist on swabs just because they think that is a great way to proceed. You are totally wrong.
What you are saying is that you think that our rights should be subservient to the wishes of the police. You are saying that you believe that we should all obey the cop's anytime they give a reason and demand some action on our part. Fine, if you are that way, thats you. But STOP please trying to say that there is any law that backs this up: There is not.
The courts have ALREADY ruled on all this. It is not some new idea. Cop's lying and bluffing does not equal a law being implemented. If a citizen refuses to give the DNA, they CANNOT be legally required to do so, unless the cop's quite a bit of independent evidence in addition to the refusal. A refusla alone does NOT constitute some kind of trigger that allows cop's to forget about the Constitution!!
Of COURSE the serial killer can refuse the DNA test also!! Thats the whole point!1 Did it go over your head?
But thank God we still have a few rights, and one of them is NO searches or seizures without a warrant.
I suggest you do some legal research into the meanings of the words: " Reasonable Grounds to Believe ' and ' probable cause' as well as the relevant Supreme Court decisions. That will settle your wrongful legal advice. It is NOT reasonable under the law to assume that people who have shown absolutely no reason to be suspected could be forced into giving up body fluids on the side of the street to some flatfooted jerk of a cop that might very well misuse or mishandle your most personal info.
I suggest you do some legal research into the meanings of the words: " Reasonable Grounds to Believe ' and ' probable cause' as well as the relevant Supreme Court decisions.
The cop's have NO business sticking anything into the mouths ( or any other orifices ) of a citizen without a warrant. Plain and simple: No warrant, no legal demand.