Violation of due process?
If you get stopped by a police officer on the suspicion of DUI, then you have the right to refuse a breathalyzer test. However, this police department is working with judges to secure no-refusal checkpoints. If you refuse they will get a warrant for a blood test. However, due process means that the police officers would have to have probably cause for a judge to give them a warrant. If the judge is handing the warrants out on request without any cause, then aren't they violating due process?
If someone is drinking and driving, the officer can smell it, etc.. then there is your cause. If I simply refuse a breathalyzer then there is no cause. How can a judge who is supposed to be upholding the law, including personal rights, even agree to do this?
- 6 years agoFavorite Answer
Implied consent. It's not a fourth amendment violation per se because consent is an exception to the exclusionary rule and all US states have driver licensing laws upholding that the driver gives implied consent to a breathalyzer test.
However the Supreme Court determined in City of Indianapolis v. Edmond (2000) that roadblocks used to check for narcotics are unconstitutional. By that precedent, it stands to reason that the scenario you're describing would undergo similar scrutiny.
- AthenaLv 76 years ago
There is no law that says you have to do a breathalyzer.
HOWEVER, if you are driving the laws are a bit different than if you were walking down the street.
THAT is where you are having a problem.
Driving is not a right and driving drunk is a threat to the community.
If you want to get soused, walk home.
- babyboomer1001Lv 76 years ago
There was probable cause when you were stopped, probably erratic driving or driving too quickly. And, when he stopped you, he doesn't have to be able to smell it. He knows. He is not stupid. You, on the other hand - I cannot say the same for you.Source(s): Certified Paralegal, with 25+ years' experience.