Thursday, March 15, 2007

BLOOD TESTS: Sticking it to us all.

[Note: This has been modified since the original post]

Everytime I go to the doctor, I dread one thing: getting stuck with that pesky needle to find out if I have to cut down on those steaks and fries once again because of high cholesterol. Aside from the rubber-gloved finger checking me out, it's the most intrusive aspect of staying healthy. I pay for it, I consent to it, yet there are strict disclosure laws and people get sued for telling some unauthorized person about it.

Why then, are the police seeking to stick needles in more and more citizens based on refusing a breath test and then making the disclosure to various agencies of law enforcement and the state?

I might understand the public's concern if a collision occurred, people were hurt, and the implied possibility of losing evidence under strict circumstances. But why would anybody ever think that refusing to blow into an intoxilyser (in and of itself a mystery of technology) even with other reasons would ever justify the ultimate intrusion based only on probable cause? Consider how many of our cases are dismissed or reduced because of the lack of valid claims with probable cause based on the intoxilyser results and SFST's. Why on earth would a judge sanction this practice with nothing more than the same standard as a regular search warrant. Is searching your fluids the same as searching your garage? Hardly.

Consider this modest solution: A higher standard for blood test warrants. For example, one of the standards of proof in our civil system is the clear and convincing evidence standard. Utilized in family law cases involving child termination and parental rights, this standard resides somewhere between preponderance (more likely than not) and the much higher reasonable doubt standard (if preponderance is 51%, then clear & convincing might be anywhere from 60-75% proof).

What types of observations and circumstances would justify a clear & convincing finding? How about "refusal plus". If a person refuses a breath test, there should at least be some significant factors coupled with this higher standard indicating a need to wake a judge to sign a warrant. There must be observable, compelling, and incriminating observations present to reach this higher standard. While past history may be a less important factor, the present state of the accused should be given the greater weight and any intrusion should be based on firm reasoning unique to the detention. There may be numerous factors, but you get the idea.

There is nothing in our culture that justifies a stab in the arm because you make a decision to refuse a test. With nothing more than that, judges need to stand between the public and the needle. Even with additional factors, a higher standard is in order. Of course, a presumption in favor of protecting the public's civil liberties would be nice as well.

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