Originally posted by ColoradoJens
How does an incapacitated person consent to medical treatment? They don't.
How does an incapacitated person consent to an alcohol test? They don't.
Are you somehow suggesting they do?
I chopped the rest since its irrelevent to the legal issue we have been discussing. Let me also state while I understand your argument, as well as
some others in this thread, you guys are ignoring the legakl application in the context of the OP article.
Secondly - and ive explained this in other threads and will try again here for context. When a person is involved in a situation involving law
enforcement, cooperation and compliance with the law fall into different areas. As an example if a person answers my questions yet refuses to leave
an area they are illegally in, the refusal to leave is a form of resistance. We see this most often with demonstrations where individuals will block
a public right of way and refuse to move.
That action is a form of passive resistance and is an accepted protest technique, although it can be illegal depending on what is being blocked. So
while the individuals may have complied with the request for name and info, they refused to comply with the lawful command to move to a different
It would be like giving an officer your pedigree information on a traffic stop and then refusing to exit the vehicle when requested to do so. It
would also be like an officer asking for your info on a traffic stop as the driver where the driver refuses to answer and comply to exit the
In the above 2 example its a text book example (in general) of resisting a lawful detention / arrest or stop (among other applicable laws). When a
person is drunk, the impact on the persons CNS is extensive. Its one reason drunks will survive accidents where the other driver does not.
With that being explained.,..
To answer your response above - Yes, I am stating the person does in fact give consent when they are incapacitated and medical treatment or an alcohol
test is required.
When you get your driver's license you agree to this legal application. If you dont agree with it thats acceptible as well as a person is ont
required to obtain a drivers license. They are free to take other forms of transportation outside of motor vehicles.
Since you gave me a definition I will give you one -
Implied Consent - Various applications - Specific to this topic is DWI and Medical
Implied consent is consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances
of a particular situation (or in some cases, by a person's silence or inaction).
1. Implied Consent - Motor Vehicle application -
Implied consent and driving while intoxicatedSee also: Drunk driving (United States)
All U.S. states have driver licensing laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a
Breathalyzer or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the
states' police power, against challenges under the Fourth Amendment (as a reasonable search and seizure) and Fifth Amendment (as not violative of the
right against self-incrimination). This is largely because in the United States, driving is considered a privilege rather than a right, and the state
has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most
states, however, the police must have reasonable grounds for administering a sobriety test.
If you are the driver in a motor vehicle that is involved in an accident and you are incapacitated, a blood draw can be done without the persons
conscious, verbal, consent. This is established when you sign and receive your drivers license. If you are not incapacitated then we go through the
normal request / accept / refusal.
2. Implied Consent - Medical application (also applies to motor vehicles).
First aidIn the United States, if a person is at risk of death or injury but unconscious or otherwise unable to respond, other people including
members of the public and paramedics may assume implied consent to touch the person to provide first aid. Many states have Good Samaritan laws that
protect persons giving aid from legal liability, but the type of persons (laypeople versus healthcare professionals) and the amount of protection
Does this better explain the other side of the fence?
One other thing to take into account that is either ignored or people just do not understand. Law Enforcement does not decide innocence or guilt nor
does a civilian who is dealing with the officer and his actions..
That is the responsibility of the courts.
edit on 4-11-2012 by Xcathdra because: (no reason given)