3
   

DNA Left Behind On Police Breathalyzer Abandoned for 4th Amendment

 
 
Reply Tue 1 Nov, 2011 12:01 pm
The case is People v. Thomas and is found at http://www.courtinfo.ca.gov/opinions/documents/B228049.PDF.

This is a bad ruling. It is not as if one can voluntarily decide whether to refuse to submit to the chemical test, because a refusal results in an automatic suspension of driving privileges by the BMV, and refusal subjects the individual to potentially enhanced penalties.

If there is any consent, it is to use the device to submit to a chemical test for the express purpose of determining whether the individual is driving over the influence, and his consent cannot be construed as one of leaving DNA behind for the express purpose of law enforcement analyzing it for other crimes.

This is a bad ruling in my opinion.
  • Topic Stats
  • Top Replies
  • Link to this Topic
Type: Discussion • Score: 3 • Views: 1,914 • Replies: 11
No top replies

 
Finn dAbuzz
 
  1  
Reply Tue 1 Nov, 2011 12:43 pm
@NotreDame05,
How about the argument that he could have requested the mouthpiece and taken it with him. Instead he abandoned it.
Baldimo
 
  1  
Reply Tue 1 Nov, 2011 04:04 pm
@Finn dAbuzz,
Leaving it behind would have been the same thing as throwing it away in the trash. At that point it becomes fair game.
Finn dAbuzz
 
  1  
Reply Tue 1 Nov, 2011 04:16 pm
@Baldimo,
Which is what the Court essentially said.

I'm not convinced that the police would let you walk out with one of the things, but if they do, I don't think they are compelled to tell you you can.
0 Replies
 
NotreDame05
 
  1  
Reply Wed 2 Nov, 2011 11:52 am
@Finn dAbuzz,
Finn dAbuzz wrote:

How about the argument that he could have requested the mouthpiece and taken it with him. Instead he abandoned it.


I do not find this argument persuasive considering we are talking about a device exclusively within police control, custody, and operated by police. I might also add, this argument was not made by the Court but the contrary argument was asserted, which was the PAS and the mouthpiece belonged to law enforcement.
0 Replies
 
NotreDame05
 
  1  
Reply Wed 2 Nov, 2011 11:54 am
@Baldimo,
Baldimo wrote:

Leaving it behind would have been the same thing as throwing it away in the trash. At that point it becomes fair game.


Assuming the act of placing the DNA on the device was "voluntary" and "conscious act." I am not so sure this is a true assumption.
0 Replies
 
djjd62
 
  1  
Reply Wed 2 Nov, 2011 12:09 pm
@NotreDame05,
he could have chosen not to submit to the breathalyzer

he could have chosen to take the mouthpiece with him

but most importantly

he could have chosen not to burglarize a number of residences

NotreDame05
 
  1  
Reply Wed 2 Nov, 2011 02:18 pm
@djjd62,
djjd62 wrote:

he could have chosen not to submit to the breathalyzer

he could have chosen to take the mouthpiece with him

but most importantly

he could have chosen not to burglarize a number of residences




The argument he could have taken the mouthpiece with him is dubious. The PAS, which includes the mouthpiece, belonged to law enforcement, in other words it is the property of law enforcement. So, he could not have taken the mouthpiece with him.

In regards to his consent, his consent was to submit to a test for the express purpose of analyzing whether he was driving under the influence of alcohol, and he was not consenting to leaving his DNA on the mouthpiece to be collected by law enforcement for comparison purposes.

I suspect, due to the weakness of these two arguments, the Court decision focused heavily upon abandonment and the property belonging to law enforcement.
0 Replies
 
Baldimo
 
  1  
Reply Wed 2 Nov, 2011 04:50 pm
This is pathetic attempt to get out of a guilty verdict. If he was innocent and the DNA had proven that he wasn't responsible would we be hearing about this case?

If they would have ruled in his favor it would have been a crook getting off on a technicality. It doesn't change the fact that he is guilty for breaking into 5 different peoples homes and taking things from them.
oralloy
 
  1  
Reply Sun 6 Nov, 2011 10:47 am
@Baldimo,
Baldimo wrote:
This is pathetic attempt to get out of a guilty verdict. If he was innocent and the DNA had proven that he wasn't responsible would we be hearing about this case?

If they would have ruled in his favor it would have been a crook getting off on a technicality. It doesn't change the fact that he is guilty for breaking into 5 different peoples homes and taking things from them.


Technicalities are extremely important. They are what prevent the government from violating our rights.
Baldimo
 
  0  
Reply Sun 6 Nov, 2011 03:22 pm
@oralloy,
Technicalities that allow people to go free for the crimes they have committed is not good for the people or the govt.

There is a difference between people being set free because of the law when they are innocent (death row inmates who are innocent).

oralloy
 
  2  
Reply Mon 7 Nov, 2011 06:09 pm
@Baldimo,
Baldimo wrote:
Technicalities that allow people to go free for the crimes they have committed is not good for the people or the govt.

There is a difference between people being set free because of the law when they are innocent (death row inmates who are innocent).


The rules don't just apply to the people. They apply to the government as well.

When a criminal is let off on a technicality, that technicality is the result of the government violating the rules.

While it is bad to allow criminals to break the rules and get away with it, it is also bad to allow the government to break the rules and get away with it.
0 Replies
 
 

Related Topics

 
  1. Forums
  2. » DNA Left Behind On Police Breathalyzer Abandoned for 4th Amendment
Copyright © 2021 MadLab, LLC :: Terms of Service :: Privacy Policy :: Page generated in 0.04 seconds on 09/25/2021 at 12:19:06