Cops Taser man in Hospital

[dburkhead]

READ THE CONSTITUTION AND READ THE BILL OF RIGHTS!

Actually, I have. Many times, in fact.

Searches, including the taking of blood samples, by force are entirely permissible in the case of a warrant based on probable cause. This is actually explicit in the Constitution.

 

[dburkhead]

Hey wait a second!!
Even if it's true that a warrant negates your 4th Amendment rights...
What about the 5th?? Wouldn't extracting DNA against your will be technically construed as forcing people to testify against themselves?

By that logic taking fingerprints could also be construed as forcing people to testify against themselves.

Sorry, but physical evidence is not testimony. Blood is physical evidence. It is not testimony.

 

[Prometheus]

Do you know the Constitution and Bill of Rights?

Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A peace officer observing intoxicated behavior or witnessing failed sobriety tests has reached the level of proof needed for the 4th Amendment to be met.

Deal with it. (Sorry, I meant DEAL WITH IT!!!!)

Sorry. You left out the 5th amendment which applies to this more so than the fourth.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Forcing someone to blow for a BAC or give their blood is a blatant violation of the Constitution. You are forcing them to testify against themselves in the exact same way as reading their thoughts and using their thoughts against them (in 100 years that will be an issue) or forcing them to speak.

There are already regulations in place to deal with person who refuse to submit to the test. They lose their license.

IMO anyone issuing an unConstitutional warrant or enforcing an unConstitutional warrant is a traitor.

Can you explain how forcing someone to blow or give blood isn't a violation of the 5th amendment?

Also I don't care how many black robed tyrants of this century have ruled that it's "ok" or the insanity of force able DNA removal in the past.

I'd like to see how Constitutionally this sort of forced confession is justified. Specifically via the 5th Amendment. Also in the broader context of the rest of teh document.

 

[Donnelly]

Ya know, I think this board just switched from a gun board to a law board. Honestly, I bet somewhere out there, there is a message board where lawyers discuss certain cases and case law, much as we discuss firearms. Maybe they have a thread going right now about the legality of firearms...

 

[Prometheus]

By that logic taking fingerprints could also be construed as forcing people to testify against themselves.

Sorry, but physical evidence is not testimony. Blood is physical evidence. It is not testimony.

nor shall be compelled in any criminal case to be a witness against himself


Please show me where the word "testimony" appears in the 5th amendment?

Police getting DNA off a discarded cigarette butt or taking prints off a glass you just held is much different than taking a person by physical force and "compelling them to be a witness against themselves"

As much as the liberals and fascists want to destroy the Constitution, we cannot allow them to toy with the meaning or wording of teh Constitution.

It's the same argument used against the second amendment. It means what it says. Don't like it? Call a Constitutional convention and change it.

 

[BloodEclipse]

This is not a matter of how you feel about it. It is a matter of law. I have posted the Indiana law and it says nothing about forcing someone to submit to a blood test. If it is not the law then it is illegal. It doesn't matter what some activist judge does or allows. Again I'm asking for someone to set me straight with FACTS not emotion.

 

[indyjoe]

Can you explain how forcing someone to blow or give blood isn\'t a violation of the 5th amendment?

The meaning of the Constitution is defined based on case law regarding it. Up to the highest determinations of the Supreme Court. Many rulings have been made that the 5th amendment only covers testifying against yourself. Other evidence gathering is not you incriminating yourself, it is gathering of evidence germane to the case. Agree or not, that is what case law has ruled, hence it is the law of the land.

 

[Prometheus]

The meaning of the Constitution is defined based on case law regarding it.

So if in Heller vs DC the USSC ruled the 2A was NOT a individual Right, you'd say, "Whelp the thoughts of 5 out of 9 idiots in black robes trumps what the Constitution says"?

Get real. This "interpretation doctrine" is insane.

Agree or not, that is what case law has ruled, hence it is the law of the land.

NO! The Constitution is the law of the land. Precisely to avoid this idiotic liberal thinking and talking points mantra I specifically asked to show me IN THE Constitution where this is lawful. The past 100 years of judicial tyranny is not justification for this treason.

I've shown where it is illegal and unlawful. The people in favor of this have done nothing but spew liberal talking points.

 

[indyjoe]

Here is how the system works. Low level cases are ruled on, using current laws or the Constitution where appropriate. If the result is thought to be against he law or Constitution, it is appealed higher. The final step is the Supreme Court. Their responsibility is to determine which rules violate the Constitution. That is the way the system is set up. The Congress and President limit the power of the court, by appointing justices. Remember all the checks and balances? The meaning of the Constitution in a LEGAL sense is defined by case law. This is true if you like it or not. It just is what it is. It is the responsibility of the people to elect the government that appoint justices that follow their beliefs. There is no way to short circuit the system to follow exactly your beliefs, only change to what a majority believe, short of revolution.

 

[dburkhead]

Forcing someone to blow for a BAC or give their blood is a blatant violation of the Constitution. You are forcing them to testify against themselves in the exact same way as reading their thoughts and using their thoughts against them (in 100 years that will be an issue) or forcing them to speak.

How about taking their fingerprints? How about restraining them somewhere where they will shed skin cells which can then be collected for DNA testing? (A little more complicated than a mouth swab, but doable.)

Collecting physical evidence from someone is not compelling them to testify.

 

[BloodEclipse]

IC 9-30-6-6
Chemical tests on blood, urine, or other bodily substance; disclosure of results; no privilege or liability; results admissible; limitation
Sec. 6. (a) A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician, who:
(1) obtains a blood, urine, or other bodily substance sample from a person, regardless of whether the sample is taken for diagnostic purposes or at the request of a law enforcement officer under this section; or
(2) performs a chemical test on blood, urine, or other bodily substance obtained from a person;
shall deliver the sample or disclose the results of the test to a law enforcement officer who requests the sample or results as a part of a criminal investigation. Samples and test results shall be provided to a law enforcement officer even if the person has not consented to or otherwise authorized their release.
(b) A physician, a hospital, or an agent of a physician or hospital is not civilly or criminally liable for any of the following:
(1) Disclosing test results in accordance with this section.
(2) Delivering a blood, urine, or other bodily substance sample in accordance with this section.
(3) Obtaining a blood, urine, or other bodily substance sample in accordance with this section.
(4) Disclosing to the prosecuting attorney or the deputy prosecuting attorney for use at or testifying at the criminal trial of the person as to facts observed or opinions formed.
(5) Failing to treat a person from whom a blood, urine, or other bodily substance sample is obtained at the request of a law enforcement officer if the person declines treatment.
(6) Injury to a person arising from the performance of duties in good faith under this section.
(c) For the purposes of this chapter, IC 9-30-5, or IC 9-30-9:
(1) the privileges arising from a patient-physician relationship do not apply to the samples, test results, or testimony described in this section; and (2) samples, test results, and testimony may be admitted in a proceeding in accordance with the applicable rules of evidence.
(d) The exceptions to the patient-physician relationship specified in subsection (c) do not affect those relationships in a proceeding not covered by this chapter, IC 9-30-5, or IC 9-30-9.
(e) The test results and samples obtained by a law enforcement officer under subsection (a) may be disclosed only to a prosecuting attorney or a deputy prosecuting attorney for use as evidence in a criminal proceeding under this chapter, IC 9-30-5, or IC 9-30-9.
(f) This section does not require a physician or a person under the direction of a physician to perform a chemical test.
(g) A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician shall obtain a blood, urine, or other bodily substance sample if the following exist:
(1) A law enforcement officer requests that the sample be obtained.
(2) The law enforcement officer has certified in writing the following:
(A) That the officer has probable cause to believe the person from whom the sample is to be obtained has violated IC 9-30-5.
(B) That the person from whom the sample is to be obtained has been involved in a motor vehicle accident that resulted in the serious bodily injury or death of another.
(C) That the accident that caused the serious bodily injury or death of another occurred not more than three (3) hours before the time the sample is requested.
(3) Not more than the use of reasonable force is necessary to obtain the sample.
(h) If the person:
(1) from whom the bodily substance sample is to be obtained under this section does not consent; and
(2) resists the taking of a sample;
the law enforcement officer may use reasonable force to assist an individual, who must be authorized under this section to obtain a sample, in the taking of the sample.
(i) The person authorized under this section to obtain a bodily substance sample shall take the sample in a medically accepted manner.
(j) A law enforcement officer may transport the person to a place where the sample may be obtained by any of the following persons who are trained in obtaining bodily substance samples and who have been engaged to obtain samples under this section:
(1) A physician holding an unlimited license to practice medicine or osteopathy.
(2) A registered nurse.
(3) A licensed practical nurse.
(4) An emergency medical technician-basic advanced (as defined in IC 16-18-2-112.5).
(5) An emergency medical technician-intermediate (as defined in IC 16-18-2-112.7).
(6) A paramedic (as defined in IC 16-18-2-266).
(7) A certified phlebotomist.
As added by P.L.2-1991, SEC.18. Amended by P.L.2-1993, SEC.69; P.L.132-1993, SEC.1; P.L.1-1994, SEC.40; P.L.205-2003, SEC.3; P.L.94-2006, SEC.7.


IC 9-30-6-7
Refusal to submit to chemical tests or test results in prima facie evidence of intoxication; duties of arresting officer
Sec. 7. (a) If a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person's driving privileges.
(b) If a person refuses to submit to a chemical test after having been advised that the refusal will result in the suspension of driving privileges or submits to a chemical test that results in prima facie evidence of intoxication, the arresting officer shall do the following:
(1) Obtain the person's driver's license or permit if the person is in possession of the document and issue a receipt valid until the initial hearing of the matter held under IC 35-33-7-1.
(2) Submit a probable cause affidavit to the prosecuting attorney of the county in which the alleged offense occurred.
(3) Send a copy of the probable cause affidavit submitted under subdivision (2) to the bureau.
As added by P.L.2-1991, SEC.18.

From what it sounds like Law Enforcement are trying to use IC 9-30-6-6 in cases where only IC 9-30-6-7 applies. This story said traffic stop, not injury or death. So again I'm asking am I wrong here?

 

[dburkhead]

nor shall be compelled in any criminal case to be a witness against himself


Please show me where the word "testimony" appears in the 5th amendment?

Please show me where "witness" is the term for the source of physical evidence.

Witnesses give testimony. Physical evidence is something else.

 

[indyjoe]

From what it sounds like Law Enforcement are trying to use IC 9-30-6-6 in cases where only IC 9-30-6-7 applies. This story said traffic stop not injury or death. So again I\'m asking am I wrong here?

The Constitutional arguments seem to have been it is NEVER allowed. I say the law does allow it in certain cases. I assumed that the case had been made in my arguments. In the specific example, you may be right that the offense was not severe enough to warrant the particular evidence collection. I do not know. Part of this has been theoretical case discussion, where it is hard to lock down the exact specifics.

 

[dburkhead]

So if in Heller vs DC the USSC ruled the 2A was NOT a individual Right, you'd say, "Whelp the thoughts of 5 out of 9 idiots in black robes trumps what the Constitution says"?

Get real. This "interpretation doctrine" is insane.
NO! The Constitution is the law of the land. Precisely to avoid this idiotic liberal thinking and talking points mantra I specifically asked to show me IN THE Constitution where this is lawful. The past 100 years of judicial tyranny is not justification for this treason.

I've shown where it is illegal and unlawful. The people in favor of this have done nothing but spew liberal talking points.

I'm afraid you are the one doing "interpretation." Tire tracks are not witnesses, nor are the tires that left them. Fingerprints found at the scene of a crime are not witnesses, nor are the fingers that left them.

By the "logic" you are using, putting someone in a line-up so that the victim might identify him is a violation of the 5th. Taking "mug shots" for later use, or even taking a description of a suspect is "self incrimination. Having the suspect in court (making his face available) so that the victim on the witness stand can point dramatically and say "that's the man who did it" is a violation of the 5th.

In court, a witness is a person who, well, witnessed something. They're the people who get up on the stand and testify as to knowledge they have about the case.

Physical evidence is not the same thing as being a witness. Collecting physical evidence is not the same thing as compelling a person to be a witness against himself.

 

[BloodEclipse]

The Constitutional arguments seem to have been it is NEVER allowed. I say the law does allow it in certain cases. I assumed that the case had been made in my arguments. In the specific example, you may be right that the offense was not severe enough to warrant the particular evidence collection. I do not know. Part of this has been theoretical case discussion, where it is hard to lock down the exact specifics.

IC-9-30-6-6 only applies if there was an injury or death.
IC-9-30-6-7 applies in all other cases.
If this was just a standard traffic stop with no injury or death, the man had his rights violated. Indiana law does not appear to allow for a forced blood draw unless the requirements of IC-9-30-6-6 are met.
I'm still waiting to be corrected, but that is what the law reads, as I see it.

 

[indyjoe]

If this was just a standard traffic stop with no injury or death, the man had his rights violated. Indiana law does not appear to allow for a forced blood draw unless the requirements of IC-9-30-6-6 are met.

I would also agree with this interpretation in that case. Given that IANAL.

 

[BloodEclipse]

Even in cases where IC-9-30-6-6 are met, I don't think that use of a Taser is reasonable force. I know many may disagree with me and we have had this disscussion here: https://www.indianagunowners.com/forums/politics_laws_and_2nd_amendment/9141-don_t_tase_me_bro_questions.html

Drawing a taser, should have the same use of force requirements that any sidearm has. If you wouldn't pull out your sidearm, then why pull out your taser?
Just my

 

[dburkhead]

IC-9-30-6-6 only applies if there was an injury or death.
IC-9-30-6-7 applies in all other cases.
If this was just a standard traffic stop with no injury or death, the man had his rights violated. Indiana law does not appear to allow for a forced blood draw unless the requirements of IC-9-30-6-6 are met.
I'm still waiting to be corrected, but that is what the law reads, as I see it.

I would also agree with that (IANALNDIPOOTV) although not on Constitutional grounds, but on State Law grounds.

 

[Fenway]

Because you want to try to end a situation that does not require lethal force with a less than lethal option.

What if we substituted OC Spray for the taser? Would that be ok with you?

If you wouldn't pull out your sidearm, then why pull out your taser?
Just my

 

[Prometheus]

I'm afraid you are the one doing "interpretation." Tire tracks are not witnesses, nor are the tires that left them. Fingerprints found at the scene of a crime are not witnesses, nor are the fingers that left them.

Did you not read my previous post in this thread detailing that there is a difference between collecting evidence left at a crime scene (including DNA from a cigarette butt or prints off a glass)?

Forcing someone to provide DNA or blood or blow for a BAC is like forcing someone to testify, verbal or written. It's like forcing someone to tell where they hid they body.

Think about your warped logic. "You don't have to admit you killed him, just tell us where you hid the body and where the murder weapon is". It's asinine!

Making them provide blood, DNA or BAC is exactly the same thing.

That said, if a suspect leaves DNA and prints at a crime scene and police invite the bad guy in for an interview and they pull latent prints off of the door the pushed open or saliva DNA off the cop he drank out of, that is another story.

At some point shedding skin cells and getting hair that just "falls out" could muddy this area IMO, but for now, that is the only way for police to Constitutionally acquire these samples.