In Maricopa County, if you are pulled over for a DUI, you have the right to refuse a blood or breath test. If the police have probable cause, they can call a magistrate and ask for a warrant to pull blood. However, we are starting to see a new trend across the nation. The trend–“no refusal” enforcement. DUI lawyers are crying foul.
DUI Attorneys know that these police tactics open the door to Constitutional violations. It just seems that the public doesn’t care. Take Kane County, for example. There, the State’s Attorneys office has announced their latest “No Refusal” operation for the Super Bowl. Any driver who refuses a blood or breath test will be subjected to a mandatory search warrant. Judges and phlebotomists will be standing by.
Here’s the problem. When you have a “No Refusal” policy it creates an atmosphere that chills Constitutional rights. The whole public relations campaign sends exactly the wrong message. Motorists actually have the right to refuse a blood or breath test. It isn’t illegal. If the name of the campaign is, “No Refusal,” then that tells people that they don’t have the ability to invoke their constitutional rights.
In State v. Rochin, the Supreme Court agreed that the police do not have the right to forcibly extract blood from the arms of motorists without a warrant. The Court held that restraining people and sticking them with a needle is an obvious intrusion into a person’s privacy. The Court agreed that there should be limits.
So when municipalities hold “No Refusal” events, it contradicts the whole essence of the Supreme Court decision in Rochin. Refusal is perfectly acceptable. If the police have probable cause, they can ask a judge for a warrant. But that judge should not be part of a task force or special event where the whole purpose of their being on call is to facilitate a “No Refusal” policy.
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Alcock & Associates P.C.
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