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Criticisms of implied consent tests and blood draws

Implied consent laws have generated controversy. In Virginia, such a law allows police to secrure a breath or blood sample from individuals suspected of driving while under the influence if an officer has probable cause to believe a driver has been drinking.

Critics have suggested that such implied consent laws as worded in certain states are in violation of the 4th Amendment of the U.S. Constitution. One DUI attorney suggests that any consent must be given freely. Thus officers should not be allowed to use coercion to get individuals to supposedly consent to blood tests.  

Virginia is unlikely to ever fully embrace either legislation or rulings that would substantially restrict the ability for law enforcement officers to secure breath or blood samples pursuant to Virginia’s implied consent law.  However, a law enforcement officer’s approach, demeanor, and attitude during an investigatory stop may very well be fertile ground for an effective attorney to cross examine that officer.  And, an effective cross examination of an officer can mean the difference between being conficted for drunk driving and being acquitted.

Forced blood draws are not allowed in Virginia.  However, though one can refuse a blood or a breath test, an individual can still be charged if they refuse to comply with such a test.  The result of such a conviction for a first time offender can mean that one’s driving privileges are taken away.

To minimize the impact these kinds of arrests can have, consultation with an experienced DUI defense attorney is generally in the suspect’s best interest.  Lawyers can help the person arrested tell their side of the story in court and possibly save them from time in jail.  These lawyers can also negotiate with prosecutors to reduce or eliminate fines and other punishments.  In certain cases, such negotiation can result in a lesser sentence that will have far less impact on one’s personal life.

Attorneys that defend drivers pulled over for DUI or other drinking related violations have the right to challenge results that are conducted improperly.  If tests are to be reliable, these tests must be conducted in the same manner in every circumstance to make certain the results do not vary.

Source: NBC 12, “Investigation: Police in South take blood of suspected drunk drivers without consent,” Rachel DePompa, Feb. 23, 2014

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