Introduction: This part gives a brief illustration and an introduction to the newly introduce warrantless blood sample law.
Body: In depth comparison on the purpose and impact of the new law and the old warranty law in reference to the effect on the behavior of people affected and its conflicts with the constitution.
Conclusion: A brief summary of the general observation and reactions to the implementation f the new law, its shortcomings and the effect it has on people as far as driving and DWI laws are concerned.
Starting on November 1st, a new law that has raised a lot of controversy will come into effect in the state of New York. The law, dubbed the Nicole “Lilly Lalime Act” targets suspected drunk drivers and gives the law enforcement personnel the power to collect the blood samples of suspected drunk drivers without a warrant. The suspected drivers will be tested on alcohol consumption level and whether they drank over the legal limit.
The older law required the police to collect blood or breathe samples from drivers suspected to be driving while intoxicated, involved or causes accidents that result in serious bodily harm or death to another person. In any other DWI circumstances, the law enforcement officers request the drivers to take a breathalyzer tests willingly. In NY, the drivers had the right to refuse this test. It is estimated that nearly half of motorists in NY decline to give their blood samples voluntarily after being arrested on suspicion of DWI, (Gibson pg 56).
The Police in most jurisdictions have adopted a “No Refusal” policy. At time the law enforcers’ end up seeking warrants from judges so as for them to get a go ahead to on getting the samples from the drivers who have refused to voluntarily give samples and determine the drivers’ Blood Alcohol Content (BAC). Magistrates have been given the authority to give warrants to collect samples from drivers who refuse to voluntarily give blood samples under the new law, (Grosh, pg 106). Refusing to comply with the order will result in arrest and forceful collection of the blood sample.
The police will need to arrest the suspected DWI driver if they refuse to give voluntary blood or breathe sample. Besides that, one of these circumstances must be present:
- The arrested driver caused an accident that led to or will lead to the death of another person; someone suffered serious physical injuries or suffered physically and was taken to hospital.
- The suspected DWI driver carried a child passenger while intoxicated.
- The suspected DWI driver has had convictions on similar case before, driving while carrying a child passenger, intoxication manslaughter or intoxication assault.
- The driver has at least two previous convictions for DWI, intoxicated assault, flying while intoxicated or operating or assembling amusement rides while intoxicated.
A Section 724.017 of the NY’ Transportation law has been extended officially to allow more circumstances that allow police and other law enforcement officials to get blood samples without any warranty or reference to the justice system. However, it is important to note that this act warrants only after the DWI or BWI suspect is already under arrest for refusing to voluntarily give sample blood for testing. The good side of it is that it relies on the above mentioned factors.
Why the law was passed
The police have a duty to protect the public from drunk drivers. The NY’ state legislature intended to empower the police to do their work with minimal hurdles. As stated by (Grosh, pg 113), “Unless the police can collect breath and blood samples from suspected drivers DWI, it would not be possible to secure conviction against a driver for DWI in good time”. The law, argues its supporters, will assist reduce the cases of serious injuries and death brought about by drunken driving on the highways. They insist that the law seeks to deter drinking and driving.
Shortcomings of the new act
Just like any other law, the warrantless blood sample collection act has its challenges. Opponents of the new law argue that it violates an important constitutional right of privacy. A further right that this law violates is the free from irrational investigation and seizures right, through forcefully taking samples of fluids from citizens without their assent.
The new law gives the police too much authority with no avenue to review or appeal the police officer’s decision of taking the suspected DWI driver’s bodily fluid sample. The older law allowed a judge to review the police office’s probable cause to determine whether they were sufficient to take blood samples. (Gibson pg 92) states, “The new law has no review of the decision by the police officer’s decision to take a blood sample without warranty”.
Opponents of the new act point out that the blood samples taken from suspected DWI drivers will not be effective because it causes the backlog both in testing centers and the court. The legal systems is already over laden with similar cases and adding more cases to the same drain only adds to the problem and not addressing the situation.
The serum blood samples required to perform the test cannot be trusted to give an accurate reading of the actual intoxication of the suspected driver. This can therefore not be presented as evidence in a court of law because every individual has a different whole blood or serum ratio reading. This ratio varies from 1.35 to 1.90 and arbitrarily converting the ratio does not give the accurate figure of how intoxicated the driver actually is (Gibson pg 75).
Another thing is, if an antiseptic is used to clean testing or sample drawing equipment, the area may have alcoholic content enough to make a notable measure on the testing equipment. This will occur and the specimen to be tested will be contaminated. It is routine to use alcoholic antiseptics, vacutainer and vials in testing room settings and this contravenes the state’s statues and regulations
The new law of warrantless blood sample collection will have a great impact in the existing legal system, the driving culture of people in NY’ and the lives of private citizens on our highways. Above all, the impact of the act on the rights of innocent citizens leaves many questions hanging. This law has many loopholes but challenging its constitutionality may be difficult. Take account of the “Schmerber v. California case 384 US 757 (1966)” where the US Supreme court made a ruling that Californian law enforcement officials could take samples of blood from suspected drivers to be driving under intoxication without warranty provided they had probable cause that the driver was actually DWI. I feel that state by-laws should not, in any way contradict the constitution of the United States. As much as there is effort to make our roads safer for motorists and everyone in general, there are better ways to go around without resorting to suppression, intimidation and violation of individual human rights.
The warrantless blood sample collection act has many disadvantages that require competent legal backing, especially when a suspect is facing the DWI charges. The act should be redressed to address licensing issues, the issue of sobriety tests, and issues of driving while under the influence without causing actual harm or breaking the aforementioned laws.
Gibson, Ken. “Changes in DWI Law in Texas” Law Office of Ken Gibson. Chicago: Sniff, 2009.
Grosh, Matthew. “What Happens if You Refuse a Breathalyzer or Blood Test after a DUI Arrest?” New York: Sage, 2007.
Lowe, Michael. “Defenses to blood samples” Expunge Records in Texas. Texas: kniff, 2006.
The David Hunter Law Firm. “Controversial New Law Broadens Police Powers Against Drunk Drivers.” Find Law, (2009): n pag. Web.
The Shapiro Law Firm. “Texas Enables Police to Draw Blood from More Suspected Drunk Drivers” (2009): n. pag. Web.