So says the California Court of Appeals, as reported by FourthAmendment.com.
The actual opinion immediately analogizes the mouthpiece to other discarded items which have been taken and tested by police, such as soda cans, water bottles, and cigarettes, and spends its reasoning pointing out that discarded is discarded. (“The question is whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material.”)
They do acknowledge that the accused argued that the police gave him the mouthpiece and then took it back, but decided that the defendant had abandoned the mouthpiece of the device “…because he did not ask the officers to give it to him after the PAS test was over or to tell him what they planned to do with it.”
This seems rather thin to me. I have no problem with the idea that when an accused finishes a cigarette and tosses it away, or even crushes it in an ashtray, he’s abandoned it, regardless of whether he thought that no one would ever touch it again.
Here, however, the accused is required to take the mouhtpiece, blow into it, and then return it to the police. It’s not unreasonable for him to assume he’s required to leave the device with the police.
I’m with you. The idea that the police can require you to give them something (the mouthpiece) and then if you fail to ask for it back claim that you “discarded” it is tenuous at best. If they had given it back and then he threw it in the trash then fair play to them if they fish it out.
I’m assuming that they didn’t have the PC to do a DNA test in the first place, right?
Agreed. Even if you agree with the intent (that the government should be allowed to take a DNA sample by compelling someone to take a breath test), the method they used to justify it is unacceptable.
Yep, I’m with the OP for the reason given. I think it stretches the term “discarded” beyond what is reasonable. Unless, of course, the police are now required to inform the person that he may reclaim the mouthpiece and, if he doesn’t, the police may use it as evidence in other crimes.
No he is not. The portable breathalyzer given in the field is not required. You are required to take the breathalyzer at the station after arrest, but not the field breathalyzer before arrest. You don’t have to take the field sobriety test (walking a line, touching your nose) prior to arrest either.
The obvious issue here is if the ‘suspect’ has no indications of having been or being drunk at the time - its a “checkpoint” and “everyone” takes the test - or risks going to jail (downtown) for failure to comply - even if they are not (and have not been) drunk.
Double edged sword - and i’m happy to be corrected if I’m wrong and the ‘obviously not drunk or drinking’ folks get a pass on these checkpoints.
if you’re not driving impaired - or close to the limit - then seems the field test is the better choice - if you’re close enough that the “less accurate” (and I would have to see a cite for that) field test will get you downtown, then it makes no difference.
Its still a “do it or go to jail” - so your refusal at the checkpoint still gets you arrested, where they have even more ability to get your DNA for testing.
Yes, it does make a difference. The difference is time. It can takes as much as several hours between arrest, transportation, booking and testing, and that can make a difference in the BAC reading when you take the test. If your are completely hammered, it probably won’t make a difference, but if you are borderline, it might save you from prosecution.
I believe at the station they do not use a breathalyzer - rather the required test is a chemical test. Either blood or urine. I would think police are less likely to lie about chemical tests done at the station vs. the field tests.
The defendant did not discard the mouthpiece; he gave it back to the police, as he probably presumed was required of him. It would not even have occurred to me that a suspect who has taken a breathalyzer test could request to keep the mouthpiece.
The distinction Fear Itself raises is between the “real” test and a preliminary testing device used in the field – what the California opinion calls a PAS test (“preliminary alcohol screening”) and what my home state calls a PBT (“preliminary breath test”).
I’m not a California lawyer, but so far as I can determine, you don’t have the right to refuse the PAS. Or more specifically, refusing to take the PAS has its own penalty, per California Vehicle Code § 23612:
So even if the person gets to the station and has a BAC of zero, their refusal to comply with the PAS can result in a fine and the suspension of their license for a year.
To my way of thinking, it’s fair to summarize that as “required” to take the test.
