A BLOG from our Aidala, Bertuna & Kamins P.C. Partners Hon. Barry Kamins and Marianne Bertuna: Supreme Court to Take Another Look at DWI cases
The police are called to the scene of an accident in which one or more individuals have been injured or killed. There is strong evidence at the scene that the driver of one of the cars was intoxicated and he is taken, unconscious, to the hospital , and while in that condition a blood sample is extracted. The results of the blood sample indicate the motorist was intoxicated and the results of the blood sample are used against him at a trial, resulting in his conviction.
Under New York law the defendant’s consent to provide a blood sample is implied despite the fact that he was unconscious at the time of the blood withdrawal. That may now change. The United States Supreme Court has agreed to hear a case, arising in Wisconsin, which raises the question of whether implied-consent laws violate the Fourth Amendment by permitting a police officer, who has probable cause to believe a suspect was driving while intoxicated,to take blood from an unconscious motorist without a search warrant.
Previously, the Court held that the police need a warrant to take a blood sample incident to an arrest for DWI. If the Court extends that rule to unconscious drivers, that will change the law in New York.
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