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Washington Law Allows State Troopers to Draw Blood, Raises Questions of Probable Cause

A new law in Washington, which took effect on August 1st, allows State Patrol Troopers to draw blood from drivers suspected of DUI. Proponents claim the law will make it easier for repeat offenders to be charged with a felony rather than a misdemeanor at the time of the arrest. In Georgia, officers must obtain a warrant to draw blood from a DUI suspect. In theory, police must have probable cause to make an arrest as well as obtain a warrant. To issue a warrant in Georgia, a judge must review what the arrested officer deemed as probable cause to make an arrest. This process of review divides the discretion for issuing a warrant between the police and a judge. In Washington, the State Legislature has superseded this buffer and given the police full discretion. In doing so it may seem that the State Legislature has also superseded citizens’ 5th Amendment rights to not incriminate themselves, though the U.S. Supreme Court case Schmerber v. California (1966) explains otherwise.

In Schmerber v. California, Schmerber was arrested for DUI at a hospital after a car accident. Against his refusal, the police officer directed a nurse to draw a blood sample that incriminated Schmerber. Regarding the appeal to Schmerber’s 5th Amendment rights, the Supreme Court ruled that “the privilege protects an accused only from being compelled to testify against himself […] with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of analysis in question, in this case, did not involve compulsion to these ends.” The majority cited the precedent established in Holt v. the United States, 218 U.S. 245: “The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material […].” The privilege outlined in the 5th Amendment “is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence does not violate it.”

The rulings in Schmerber and Hoyt may seem excessive in regards to a charge such as DUI, but they opened the door for compelling DNA evidence in murder and rape cases. While the Washington law stands up under established precedent, the amount of discretion it gives police still deserves attention, especially considering that it is not the job of police officers to consider whether the enforcement of a law is constitutional, Cristy v. State – A11A2152. Barring gross abuse, the Washington law will stand rightly unchallenged.

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