Well, this is why I said I wasn’t a California lawyer. I stand corrected, it looks like.
I’m with the OP, but I still can’t understand why it would be bad to link you to the burglary with your DNA that you are forced to provide, but it is still okay to convict you of drunk driving with the measure of alcohol contained in the DNA that you are forced to provide.
In my mind, implied consent laws violate your fourth amendment right and should not be admissible for any purpose without a free choice whether to give or not.
But since they are admissible, why are they not admissible for other purposes that are tangential to a legal “search”?
The legislature did not authorize the police to collect your DNA. They authorized the collection of breath and/or blood samples for the limited purpose of testing your BAC.
To use that sample for an additional purpose is not authorized.
Bricker, now that it’s apparent that the defendant in the case you linked to in the OP did not have to consent to a PAS test, are you less sure that the ruling was a bad one since he didn’t have to blow into the mouthpiece? Does it make a difference that the test wasn’t required, since it may be reasonable for one that takes the test voluntarily to not know that he could have kept the mouthpiece? Is ignorance of what’s allowed and not allowed an excuse?
If a police officer pointed to a garbage can alerting the defendant that he could throw it away himself, as a juror I could be swayed that it’s no different than disposing of a soda can. Otherwise, I’m still on the fence.
Question in my mind becomes - why did they choose to test this particular person’s DNA? If they did not have enough probable cause to get it with a warrant, then they should not have bypassed the system to get it. Was the traffic stop/PAS test a ruse to get his DNA?
He was a suspect in several burglary cases in which there was DNA left at the scenes.
It’s been found that it’s okay to collect DNA evidence from discarded items such as cigarette butts of those under suspicion of committing crimes.
I was actually wondering the same thing-- We always hear about how there’s this huge backlog for police DNA testing, and a lot of that is for big things like rapes and murders. Why are they going to this kind of lengths for a robbery?
So, in this case - it can/could be stated that
a.) the police targeted this person for DNA collection
b.) the police did not have enough evidence to obtain a proper warrant
c.) the police likely did not give any clue to the suspect that he had the right to keep the mouthpeice or that it was being collected for other purposes.
This is far beyond “tossing a cigarette butt” or other discarded items thrown in a trash can - this is the police ‘taking’ the evidence directly from the suspect.
This is the police working around the system
We say all teh time in watching crime ‘procedure’ shows that this action (handing the suspect a bottle of water to get dna/fingerprints and then taking it from them) is ‘wrong’ but cute for TV - why would we accept it in real life?
If the mouthpiece belongs to the user then I would challenge the case based on theft by the police.
When the cigarette is in your mouth, and you’re smoking it, of course it would be theft for me (or the cops) to run up and snatch it from you. After you snuff it out in the ashtray and walk away, you abandon it and then it’s not theft to take it.
In this case the mouthpiece was taken.
The defendant consented to the test, which necessitated the taking of the mouthpiece, therefore the defendant consented to the taking of the mouthpiece.
If he hadn’t consented to the roadside test, the police could have taken him in and tested him under implied consent laws right? In that case, the police would also have his DNA. So how does a driver deny the police his DNA?
Interesting how far down the rabbit hole some have to be before noticing that it is getting dark and murky. I was still in high school in the late 70s when sobriety check points started being used and I thought that smacked of “your papers please, Heil etc.”
You can in fact refuse both the breath and blood test, but then you lose your license. Because driving is supposedly a privilege, not a right. (Another shitty legal lie, but easier to swallow because it was before my time.)
In any event, if they are going to take you in for suspected drunk driving, they are going to do whatever they want. If you can afford legal representation you can complain about it afterwards, as much as you can afford to.
Not as personal property, no. The defendant did not surrender the property. It was used for the purposes of the test and should have been returned. It was not.
that’s pretty much how I see it.
It’s getting harder and harder to recognize the country my parents grew up in.
I think I am missing something in all the above posts. Everyone is talking about whether the “suspect” coulda/should/woulda kept the mouthpiece or returned it, or whether the police “took” it, or whether they informed “suspect” he could keep it.
There seem to be rampant assumptions here, but I’m not seeing it stated explicitly, or anyone even asking:
Does the “suspect” have the right or option to keep the mouthpiece (whether he knows it or not, and whether the police tell him or not)? Can he ask to keep the mouthpiece? Is the testing equipment, including the mouthpiece, the property of the police department? (Even if the mouthpiece is disposable and cannot be used again?) If the police do not permit the “suspect” to keep the mouthpiece, can “suspect” demand that it be washed?
What if you or I get field-tested, but having read this thread, ASK the cop to let me keep the mouthpiece, and the cop refuses and keeps it instead? Would this have changed the court’s decision in the case discussed in the OP?
I think the concept of the Miranda Rights falls into this scenario. People should be made aware that the disposable tube can and will be used against them.
Oh, you can’t.
But the legal argument against admissibility changes when the test is mandatory, versus a voluntary test you consented to. If you can get the DNA tossed because the test is mandatory, they can’t use it to prosecute you for the burglaries where the DNA was found. That becomes more difficult when the test is voluntary.
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.