# DNA test on "discarded" breathilyzer mouthpiece needs no warrant

**URL:** <https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500>\
**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")\
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**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [November 1, 2011, 3:07pm UTC](https://boards.straightdope.com/t/dna-test-on-discarded-breathilyzer-mouthpiece-needs-no-warrant/601500/1 "2011-11-01T15:07:11Z")

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So says the California Court of Appeals, as reported by [FourthAmendment.com](http://www.fourthamendment.com/blog/).

> [@](#):
>
> Defendant was stopped for a suspected DUI and he was given a portable breath test. Police kept the mouthpiece and tested his saliva for DNA. As far as the defendant was concerned, the DNA was abandoned. His DNA linked him to burglaries. [People v. Thomas](http://www.courtinfo.ca.gov/opinions/documents/B228049.PDF).

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.

Bad ruling, in my view.

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