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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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I would like to know if I have a case to sue for a warrantless

Resolved Question:

I would like to know if I have a case to sue for a warrantless blood search in a DUI arrest.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.
Hi. It will be my pleasure to assist you with your question today.

Whose blood? Yours or someone else's?

Do you want to obtain someone else's blood test results?

The evidence dissipates rather quickly, so are you referring to blood that has been drawn and is stored?

Please give me more context and details so that I can provide a relevant and useful response. What relation you have to the person whose blood you want to search would help.

I look forward to working with you to answer your question.
Customer: replied 1 year ago.


I was arrested in Texas and refused to take the breath test or give blood. The officers then carried me to the hospital and directed them to take my blood without my consent and without a warrant. At the time Texas law said they could do so but since then the US Supreme Court has ruled that they can not do so. Missouri vs McNeely So I want to know if I have a case against them for violating my 4th amendment rights by taking my blood without my consent or a warrant.

Expert:  MyraB replied 1 year ago.

Thank you for your response and clarification.

Although the Supreme Court has held that forcing someone to have blood drawn under the circumstances of an OUI is a violation of the Fourth Amendment, the police officers, at the time they ordered your blood to be drawn were acting under the reasonable, although erroneous, interpretation of the law in Texas. Police officers have qualified immunity from civil actions against them if they are acting in good faith and within existing law. It is only when their actions go beyond the bounds of reasonableness, such as the use of excessive force, that they can lose immunity and be subject to a civil suit for violation of civil rights.

Please feel free to ask any follow-up questions.



Customer: replied 1 year ago.


So you are telling me that while ignorance of the law is not an excuse for violating that law for a citizen is justified if a state does the same thing. I mean I can come up with several interpretations of many laws but that does not make it legal for me to act upon those interpretations and if I do I can be criminally prosecuted. A good example of that is many people do not believe the government has the right to tax the public but Wesley Snipes found that his interpretation of that law was not accurate. What if the state of Texas decides we no longer have the right to free speech does that mean they can arrest citizens for exercising that right without repercussions to the state. You say they were acting within existing law I do believe the 14th amendment was around before Texas made their law.


 


Last thing is how can you say that inserting a needle into some ones arm and withdrawing their blood without their consent does not go beyond the bounds of reasonableness? Is it only because the bruise left afterwards is not sizeable or is it because they use a hospital to exert excessive force? If I was to stab someone with a needle I know I would be arrested for assault. After all isn't a needle just a small knife? It is still an invasion of the body. What if they had decided that blood is not enough would they then be within those same bounds of reasonableness to take body tissue?

Expert:  MyraB replied 1 year ago.
Honestly, I think it's horrible what they did to you, and others in your situation and I am astonished that it took the Supreme Court to tell them that taking someone's blood without his consent or a warrant was not a reasonable search. But the police officers were acting within the law as it existed in TX at the time. The state courts of TX and other states had upheld such searches. As such, those police who "searched" you were acting within their authority as it existed at the time. That's all they are required to do to be entitled to immunity from civil liability for doing their job.

I understand that you are angry, and upset that there is no recourse. I don't agree that it's the way it should be, but unfortunately, it is the way it is. And I am compelled, however unpleasant, to give you an accurate answer, although it's not necessarily the one you wanted.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 7 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.


I appreciate the response and no disrespect meant but I believe that lawyers saying as you did that "It is what it is" is the reason they were able to get away with it until the Supreme Court told them that "It is not what you think it is" and if not for McNeely they would still be doing as they please. I guess you can chalk it up to Big Brother doing as they like until someone with enough money to call them out on it comes along.

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