Quote:
Originally Posted by Rick Lee
I refused a breathalyzer after I was already in cuffs and had been Mirandized. I caught a charge for it too. But it all got rolled into one when I took a plea deal and was kept away from my home state. But they really can tie you down and forcefully draw blood in AZ. I don't know how they get away with it. Seems it'd be easier to just make refusal count as evidence of impairment. Eventually they'll force a blood draw on someone who has the time and money to really go after the law and it will be a nightmare for the state.
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Rick, under the law Leo should have obtained a search warrant to draw blood. It is considered physical evidence (not protected by 5th amendment) as opposed to testimonial evidence ( which is protected. Some jurisdictions hold that a search warrant is not needed since it is a search incident to arrest which is one of the exceptions to requiring a warrant warrant. Conversely there is the argument that supreme court has held that a routine traffic stop does not give rise to warrantless searches....but is a DUI a routine traffic stop? Very sublime arguments.
In my jurisdiction some judges actually go out on DUI ROADBLOCKS so they can issue search warrants on the spot. I personally have a problem with this as it places the judge in a quasi police role rather than an unbiased arbiter of the law. But then I don't make the rules....just challenge them when I think they are unjust.
FWIW Miranda is not routinely required on a misdemeanor arrests.