The Richmond Register

Crime

April 28, 2013

U.S. Supreme Court: Warrant needed for blood test in most cases

Similar issues have come up in Madison County courts

(Continued)

RICHMOND —



Madison County drunken driving case

Prior to the Supreme Court adopting the position that blood tests are a type of intrusive search in DUI cases, Madison District Court Judge Earl-Ray Neal had been using the same reasoning when he ruled on evidence in impaired driving cases.

In early 2012, Neal presided over a case in which a man suspected of drunken driving was given an enhanced, or aggravated, DUI charge because he refused a blood test.

He was not given a Breathalyzer test first because the arresting Richmond Police Department officer believed the machine at the Madison County Detention Center was not operating properly. The officer did not have blood forcibly drawn from the man.

The defendant’s attorney asked to court to drop the stepped up charge because the defendant should not have been required to submit to a blood test before a Breathalyzer test.

Neal had thrown out evidence in a similar 2008 case based on his interpretation of the state’s implied consent law for motorists. Neal asserted in cases of alcohol intoxication, the less invasive test – a Breathalyzer – should always be performed before a blood test.

“The United States Supreme Court has determined that (the) Fourth Amendment prohibits compelled intrusions into (the) body for blood to be analyzed for alcohol content if intrusions are not justified in the circumstances ...” Neal said in a judicial order from the 2008 case.

Assistant County Attorney Jud Patterson halted prosecution in the 2012 case and asked Madison Circuit Court to weigh in on the issue.

“The Commonwealth is unable to proceed in DUI prosecutions where it is unsure or unclear about what law applies to when and how an officer must administer tests of a person's breath, blood or urine,” Patterson wrote.

Madison Circuit Judge Jean C. Logue ruled that the state’s implied consent law does not state that one test – blood, breath or urine – must be performed before the other. She issued a writ of prohibition, a judicial order that prohibits Neal “from ruling that a police officer must first attempt a breath test in cases where there’s no evidence of intoxication other than alcohol,” Patterson wrote in the motion for the writ.

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