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Did they take a blood sample from him without a warrant in this case?
No. I don't believe they had a warrant. They fell back on the premise that because he had previous dwi's then they did not need one.
No, they are incorrect. To take a blood sample under the recent SCOTUS ruling they need to have gotten a search warrant or the blood test can be suppressed regardless of how many prior he has.
The 4th Amendment doesn't change just because you have other convictions.
He was taken to the hospital and the cop asked him for a blood sample. my husband refused and the cop left the room and came back and waved a piece of paper and said he had an "order from the judge" and said my husband could consent to the blood draw or he would have some of the male nurses come in and hold him down and take it. my husband was not given the paper in question.
Did your husband consent when the cop showed him the paper?
he said he wasnt going to fight the order. how do we know if there was an actual order?
There almost certainly wasn't but if there was it will be in the criminal file. His attorney should file a Motion to Suppress based on the Supreme Court case and then see if they come forward with a warrant signed by a judge.
our lawyer copied the report filed by the cop and it says "since he refused to provide a blood specimen voluntarily and because he had several indicators for dwi (currently on parole for dwi) it was now mandatory that he provide a blood sample. I explained the procedure and instructed him to cooperate. He said he would."
That isn't the same as consenting to the sample. The lawyer should be able to get it suppressed.
Anything else I can assist with?
Is it a big involved process to get it suppressed?
he lawyer will file a Motion to Suppress and they will have a hearing on it. In the scheme of things it;s not a really big deal.
ok. thank you.
You're very welcome.
Best wishes to you and your husband.. Please don't forget to leave a Positive Rating (of course I'd suggest Excellent) so I get credit for my work.
Ok. I have kinda a dumb question. Previously you stated the 4th amendment doesn't change because of previous convictions. The day of the accident happened to be on a "mandatory draw weekend". Meaning anyone that was suspected of dwi had to give blood. Does that have any bearing?
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