Kacey
Lv 4

Violation of due process?

http://www.wtoc.com/story/25778795/operation-thund...

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?

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  • 6 years ago
    Favorite 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.

    • Kacey
      Lv 4
      6 years agoReport

      I know that cops have to convince a judge there is probable cause to get a warrant whether it be a search warrant or whatever. My only problem with this is that the judge is offering to write the blood test warrants anytime there is a refusal. This to me seems wrong, like an abuse of power.

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  • Athena
    Lv 7
    6 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.

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  • 6 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.
    • Kacey
      Lv 4
      6 years agoReport

      I was never stopped. I'm not sure what you read or why anyone would trust you with a case. The article is about a no-refusal DUI checkpoint and it has not even happened yet. I was asking about due-process & how a judge could justify a warrant without probable cause.

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