# DNA test on "discarded" breathilyzer mouthpiece needs no warrant **URL:** \ **Category:** Great Debates\ **Created:** [November 1, 2011, 3:07pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500 "2011-11-01T15:07:11Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 2, 2011, 2:47am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/41 "2011-11-02T02:47:35Z")
> [@Fear\_Itself](#): > > It was not his property; they are not required to returm it, and the test procedure created no expectation that it would be returned to him. He voluntarily took the test. If he had anticipated the DNA test, perhaps he would not have consented. Once consent is given, he has no right to get the tube back, because the tube is never returned, whether the test is voluntary or mandatory. He didn’t consent to a DNA test so your premise is wrong. ---
**Author:** ![marshmallow](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@marshmallow](https://boards.straightdope.com/u/marshmallow)\ **Post date:** [November 2, 2011, 2:49am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/42 "2011-11-02T02:49:04Z")
Reminds me of [this case](http://chicagoist.com/2005/02/24/semen_is_a_gift_not_a_loan.php). > [@](#): > > “She asserts that when plaintiff ‘delivered’ his sperm, it was a gift-- an absolute and irrevocable transfer of title to property from a donor to a donee. There was no agreement that the original deposit would be returned upon request.” ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 2, 2011, 2:49am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/43 "2011-11-02T02:49:37Z")
> [@Magiver](#): > > He didn’t consent to a DNA test so your premise is wrong. Cite that consent is required for a DNA test. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [November 2, 2011, 2:57am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/44 "2011-11-02T02:57:54Z")
> [@Magiver](#): > > that’s pretty much how I see it. > > It’s getting harder and harder to recognize the country my parents grew up in. I was born after McCarthyism and loyalty oaths and that sort of crap, but now I think of all this stuff as a continuation of tearing at the principles on which our nation is supposedly founded. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 2, 2011, 3:01am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/45 "2011-11-02T03:01:41Z")
> [@Fear\_Itself](#): > > Cite that consent is required for a DNA test. from the court case legal discussion: “The Fourth Amendment protects against unreasonable governmental searches and seizures. A search occurs only when a government activity intrudes on an individual’s reasonable expectation of privacy, measured by the individual’s subjective expectation of privacy in the item searched and society’s objective recognition of the reasonableness of the individual’s subjective expectation of privacy”. The idea that the person involved abandoned the mouthpiece is in question as it was not pro-offered back to him as a form of personal identification. And given the concept of Miranda Rights a person has the right to remain silent in regards to information exchanged and this certainly falls within information exchanged. The mouthpiece was used for the process of determining sobriety and at no time was it presented for any other purpose. When people talk about slippery slopes and the loss of personal freedoms they do so with the idea that for every new interpretation of a constitutional right there are consequences down the road that will affect us on a greater scale. It’s a death of a thousand cuts if we allow these legal incursions to stand. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 2, 2011, 3:42am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/46 "2011-11-02T03:42:57Z")
I understand that you believe DNA tests require consent. I was asking you to present some kind of legal precedent that supports your opinion. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 2, 2011, 3:50am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/47 "2011-11-02T03:50:39Z")
> [@Fear\_Itself](#): > > I understand that you believe DNA tests require consent. I was asking you to present some kind of legal precedent that supports your opinion. I gave you the 4th amendment example as quoted from the court case and I discussed Miranda Rights. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 2, 2011, 4:01am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/48 "2011-11-02T04:01:18Z")
> [@Magiver](#): > > I gave you the 4th amendment example as quoted from the court case and I discussed Miranda Rights. Neither of which has any specific relevance to DNA testing as the product of a voluntary search. I get it, in your opinion, the court case and Miranda apply. That is not a cite, however. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 2, 2011, 4:11am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/49 "2011-11-02T04:11:22Z")
I have to say I think Bricker is more right than wrong. Yes, you could say no to a field breathalizer test in CA. But then you know damn well they will arrest you then, impound your car, then haul your ass off to the PD, where you won;t have a real choice- either take the test or lose your license. Now sure, if you have not been drinking, you get to go home. But your car is still impounded, you have to cadge a ride, you have lost several hours in handcuffs, and the PD will likely write you up for something. Thus, it’s a choice between bad & worse, and would you lawyers not say the suspect is being detained or whatever the new term is? And if any smart ass did say “Ok, I’ll just take that mouthpiece” you are asking for a world of trouble. It’s a bad decision. I hope it’s overturned. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [November 2, 2011, 4:23am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/50 "2011-11-02T04:23:23Z")
I’ll say it again: If the field test is voluntary (before arrest), the DNA test is allowable. If the field test is mandatory (after arrest), the DNA test is not allowable. That is the difference between consenting to the voluntary breath test, and submitting to the mandatory breath test. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 2, 2011, 4:25am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/51 "2011-11-02T04:25:40Z")
> [@Fear\_Itself](#): > > Neither of which has any specific relevance to DNA testing as the product of a voluntary search. I get it, in your opinion, the court case and Miranda apply. That is not a cite, however. I don’t understand your debate point. You can’t get much more of a cite than the 4th amendment. It’s an unwarranted search. the mouthpiece is not voluntarily given up such a search. Search warrants are also limited to specific searches and are not open ended fishing expeditions. Using a mouthpiece for anything other than it’s intended purpose violates a person’s privacy. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 2, 2011, 4:37am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/52 "2011-11-02T04:37:39Z")
> [@Fear\_Itself](#): > > I’ll say it again: > > If the field test is voluntary (before arrest), the DNA test is allowable. > > If the field test is mandatory (after arrest), the DNA test is not allowable. > > That is the difference between consenting to the voluntary breath test, and submitting to the mandatory breath test. The field test for sobriety is unrelated to DNA testing and therefore an invasion of privacy. No consent was given for the DNA test. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 2, 2011, 5:02am UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/53 "2011-11-02T05:02:47Z")
I agree with Bricker for the reasons he gave in the OP. I do not see this as analogous to collecting physical evidence from something that had been discarded. This was the police conducting a field DNA test. If they did not have sufficient cause to conduct such a test (and I don’t even know if there is such a standard) then the evidence should have been inadmissible. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 2, 2011, 1:28pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/54 "2011-11-02T13:28:39Z")
> [@Bricker](#): > > 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 think the more analogous argument isn’t to the clearly abandoned cigarette, but to the soda can/water bottle used in the interrogation (a point made in the opinion itself). When the police provided the defendant with a water bottle/soda can (two different cases) during an interrogation, the defendant knew that he was not going to get to leave with those items, and thus, he had no reasonable expectation of privacy in them. _“The can was provided by the police, and the defendant knew he could not take it out of the interrogation room.”_ By leaving his saliva/DNA on the can/water bottle, he abandoned it. I think that example, where the police provide something to the defendant that he does not have the reasonable expectation of privacy in and it is returned to the police after use, is much more analogous to the PAS mouthpiece than a cigarette clearly thrown away. With the prior cases as foundation, I’m not sure I have a problem with that part of the decision. It’s certainly a tougher case, a much closer call, but I’m not up in arms over it. I found the second part interesting too though. The cases involving DNA testing done on blood samples taken during a DUI test may not be permissible are interesting. _"In cases where a driver consents to give a blood sample under a state’s implied consent law and the sample is afterwards genetically tested, some courts have concluded that the scope of the driver’s consent does not permit genetic testing, either because the driver expressly limited his consent or because the express statutory purpose for testing the blood sample is to ascertain the presence of alcohol or drugs in the blood._". I don’t think it’s a stretch at all to argue that the defendant may have abandoned the saliva on the PAS for certain purposes (it being thrown away), but not for others (the DNA testing). But that argument likely failed in the soda can/water bottle cases, because the defendant in those clearly didn’t think his leavings would be DNA tested. Intriguing idea though. Tough case, but not one that rouses my ire. I think the court had a solid legal basis for the opinion, but it’s certainly a close call. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [November 2, 2011, 1:39pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/55 "2011-11-02T13:39:18Z")
> [@Hamlet](#): > > I think the more analogous argument isn’t to the clearly abandoned cigarette, but to the soda can/water bottle used in the interrogation (a point made in the opinion itself). > > When the police provided the defendant with a water bottle/soda can (two different cases) during an interrogation, the defendant knew that he was not going to get to leave with those items, and thus, he had no reasonable expectation of privacy in them. _“The can was provided by the police, and the defendant knew he could not take it out of the interrogation room.”_ By leaving his saliva/DNA on the can/water bottle, he abandoned it. > > I think that example, where the police provide something to the defendant that he does not have the reasonable expectation of privacy in and it is returned to the police after use, is much more analogous to the PAS mouthpiece than a cigarette clearly thrown away. With the prior cases as foundation, I’m not sure I have a problem with that part of the decision. It’s certainly a tougher case, a much closer call, but I’m not up in arms over it. > > I found the second part interesting too though. The cases involving DNA testing done on blood samples taken during a DUI test may not be permissible are interesting. _"In cases where a driver consents to give a blood sample under a state’s implied consent law and the sample is afterwards genetically tested, some courts have concluded that the scope of the driver’s consent does not permit genetic testing, either because the driver expressly limited his consent or because the express statutory purpose for testing the blood sample is to ascertain the presence of alcohol or drugs in the blood._". > > I don’t think it’s a stretch at all to argue that the defendant may have abandoned the saliva on the PAS for certain purposes (it being thrown away), but not for others (the DNA testing). But that argument likely failed in the soda can/water bottle cases, because the defendant in those clearly didn’t think his leavings would be DNA tested. Intriguing idea though. > > Tough case, but not one that rouses my ire. I think the court had a solid legal basis for the opinion, but it’s certainly a close call. Another distinction here - is the ‘sobriety checkpoint’ analogous to the interrogation room - a place where, presumably, the police have probable cause, have read the suspect his rights, etc. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 2, 2011, 1:43pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/56 "2011-11-02T13:43:04Z")
> [@simster](#): > > Another distinction here - is the ‘sobriety checkpoint’ analogous to the interrogation room - a place where, presumably, the police have probable cause, have read the suspect his rights, etc. It wasn’t a “sobriety checkpoint”. From the opinion: “On December 1, 2008, he was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a PAS breath test that required him to place his mouth over the plastic tip of the PAS device and blow into it.” It’s not absolutely clear, but it seems that there was “probable cause” for the the stopping of his vehicle and for requesting the PAS test (to which the defendant consented). He wasn’t interrogated or arrested, so the “read his rights” isn’t really an issue. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 2, 2011, 2:05pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/57 "2011-11-02T14:05:25Z")
> [@Hamlet](#): > > When the police provided the defendant with a water bottle/soda can (two different cases) during an interrogation, the defendant knew that he was not going to get to leave with those items, and thus, he had no reasonable expectation of privacy in them. _“The can was provided by the police, and the defendant knew he could not take it out of the interrogation room.”_ By leaving his saliva/DNA on the can/water bottle, he abandoned it. I guess I’m having trouble picturing the record that developed at trial that supported this finding of fact. It seems to me that in ordinary interaction, if someone hands me a bottle of water and I’m halfway through it when our business concludes, I’d feel free to take it with me. That is, it seems like a very odd comment to make if the police said something like, “Hey, here’s a bottle of water for you… but remember, that bottle can’t leave the station!” What I had pictured was much more ordinary: police had subject the bottle, he drinks it, empties it, and throws it away… the requisite criteria for abandoning, to be sure, and with no need to conclude anything about what he knew or didn’t know about his freedom to take the bottle with him if he so chose. In contrast, the mouthpiece of a PSA device is not self-evidently something that you can or should take away with you. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [November 2, 2011, 2:09pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/58 "2011-11-02T14:09:01Z")
> [@Hamlet](#): > > It wasn’t a “sobriety checkpoint”. From the opinion: “On December 1, 2008, he was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a PAS breath test that required him to place his mouth over the plastic tip of the PAS device and blow into it.” It’s not absolutely clear, but it seems that there was “probable cause” for the the stopping of his vehicle and for requesting the PAS test (to which the defendant consented). > > He wasn’t interrogated or arrested, so the “read his rights” isn’t really an issue. ok - not sure where I got checkpoint from - but again, is the stop in this case analogous to an interrogation room? if they offered him a bottle of water here, would he have been able to take it with him? Why did they choose to test for HIS DNA in this case? (NM - thats been answered above he was a ‘suspect’ in a number of robbieres, but they clearly didnt have probably cause to get a DNA sample from him in the normal fashion) ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 2, 2011, 2:24pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/59 "2011-11-02T14:24:51Z")
> [@simster](#): > > ok - not sure where I got checkpoint from - but again, is the stop in this case analogous to an interrogation room? if they offered him a bottle of water here, would he have been able to take it with him? I think it is. In both the interrogation room and this stop, he has submitted to their authority for awhile while an investigation is going on, and he consented to the removal of property that the police had provided him. Whether it was a water bottle or a PAS, I’m not sure makes a difference (for the abandonment issue, not the purpose of the consent issue). ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [November 2, 2011, 3:05pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/60 "2011-11-02T15:05:17Z")
> [@Bricker](#): > > I guess I’m having trouble picturing the record that developed at trial that supported this finding of fact. It seems to me that in ordinary interaction, if someone hands me a bottle of water and I’m halfway through it when our business concludes, I’d feel free to take it with me. That is, it seems like a very odd comment to make if the police said something like, “Hey, here’s a bottle of water for you… but remember, that bottle can’t leave the station!” I can picture it. “I have to inform you that nothing can be taken away from the interrogation room.” Several minutes later- “You may be here for a while. Would you like some water?” [Previous page](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500.md?page=2) [Next page](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500.md?page=4)