North Anson, ME asked in Constitutional Law and DUI / DWI for Maine

Q: Do States ( Maine) have a constitutional right to take blood from a persons in order to prove driving under the influenc

Seams like a violation of the persons body

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2 Lawyer Answers

A: With a warrant, they can.

Implied consent laws are also constitutional. For example, by law a state can make cooperating with a blood alcohol test a condition of the privilege of driving, but the penalty for a subsequent refusal is limited to the loss of the privilege.

Interestingly, in implied consent states, the burden of refusal is on the driver. So, if the driver is unconscious, police don’t need a warrant to collect a blood sample for testing.

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A: The U.S. Supreme Court has ruled that the warrantless taking of blood for alcohol testing is permissible in certain circumstances, such as where exigent circumstances exist, such as when a delay in obtaining a warrant would result in the destruction of evidence (i.e. the dissipation of alcohol in the bloodstream). However, the Court has also made clear that warrantless blood draws must be justified by a totality of the circumstances analysis, meaning that the government must show that the warrantless intrusion was reasonable under the circumstances. In general, warrantless blood draws are more likely to be upheld where there is probable cause to believe that the individual was driving under the influence and where the blood draw was performed by trained medical personnel in a medically approved manner. Each state may have its own laws and regulations that govern the taking of blood for alcohol testing, so it is important to consult with an attorney who is familiar with the specific laws and procedures in Maine.

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