DNA Left Behind On Police Breathalyzer Abandoned for 4th Amendment

Forums: Legal, Criminal Law, 4th Amendment, People V Thomas
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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.

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Type: Discussion • Score: 3 • Views: 2,388 • Replies: 11

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@NotreDame05,

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

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@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.

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@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.

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@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.

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@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.

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@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

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@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.

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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.

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@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.

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@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).

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@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.

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DNA Left Behind On Police Breathalyzer Abandoned for 4th Amendment

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