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What is consent regarding alcohol tests continues to be debated

The U.S. Supreme Court decided this past April that warrantless blood draws involving DUI arrests were impermissible without "exigent circumstances."   What precisely is meant by exigent circumstances apparently still is not entirely clear.  The court stated that blood alcohol levels disappearing in the system due to delay in drawing the blood was not in itself one of those circumstances.

However, it appears that certain courts are still struggling with this issue.  The Supreme Court of one particular state ruled against an individual charged with a DUI under similar circumstances.  The individual arrested was instructed that the state's implied consent law required he cooperate or be charged with a crime.  It is claimed that since this individual was told that he had the right to an attorney, his providing a urine or blood sample after the arrest was not compelled and could be considered a voluntary consent to the tests.

One justice on that state court did not agree with the ruling. The judge felt that agreeing to such tests while under the threat of criminal prosecution could not be called voluntary consent. "It is hard to imagine how Brooks's consent could have been voluntary when he was advised that refusal to consent to a search is a crime," this justice wrote.

We will have to see if the Virginia courts will also specifically rule upon this issue. In any circumstance, this case does demonstrate why anyone arrested for DUI should avoid answering any questions until one has had a chance to speak to an attorney. Experienced DUI attorneys can let individuals know all their legal rights and can represent such people through the entire process - especially when the law in this area remains unclear.

Source: Forbes, "Minnesota Supreme Court Says A Legally Required Alcohol Test Is Voluntary," Jacob Sullum, Oct. 30, 2013

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