Topic of Research Paper / Policy Writing Project Short Topic: NYS DWI / DWAI ar
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Topic of Research Paper / Policy Writing Project
Short Topic: NYS DWI / DWAI arrestee’s rights of refusal are circumvented by policy and law
When a driver is arrested on suspicion of Driving While Intoxicated or Under the Influence of Drugs, the police department attempts to collect evidence against the driver to support prosecution and punishment. In New York State, a driver arrested in such a situation has the right to refuse chemical testing via breath test or blood draw. In order to make a legal refusal, the arrestee must be read a preprinted warning advising them of their rights and the penalties which include the suspension of their driver’s license. The warning must be read in its entirety and the response must be recorded three separate times within two hours of the arrest.
When a driver is unconscious and unable to refuse, the state assumes there is implied consent for a blood draw within the two-hour window, to provide physical evidence that the driver was in-fact NOT intoxicated or under the influence to support their defense against the allegations of the state.
When a driver refuses to consent and the offense is deemed egregious, as in a case where the driver has caused a fatality or was operating a vehicle with children on board, the arresting agency will immediately apply for a search warrant, and make a blood draw with the court’s consent within the two-hour timeframe or as soon as possible thereafter.
When a driver is taken into custody and makes an overt statement of refusal to submit to a breath test or blood draw, and the driver is subsequently delivered to a hospital for medical treatment while in police custody, and the driver is then made unconscious by intentional medical intervention ordered by a licensed medical professional (including the possibility of a paramedic employed by the police department) the state assumes the driver has given implied consent for a blood draw. The police department is then authorized to collect this evidence against the driver via blood draw. However, the arrestee is still under medical care and detailed medical records are being kept and can be subpoenaed at a later date, or the police department can submit a written request for the hospital to preserve any blood drawn from the patient until a search warrant can be obtained for the blood drawn by the hospital. The arrestee’s original refusal is ignored and the intent they originally expressed is circumvented.
The driver does deserve the right to provide evidence in their defense. However, the individual’s rights against unreasonable search and seizure trump the need for the state to collect evidence that could potentially work against the suspect.
The current policy circumvents the rights of the suspect against unreasonable search and seizure. The people deserve a more logical defense against self-incrimination. The policy needs to be changed to ensure ethical behavior of the police and criminal justice system. In a case where a suspect has made an overt and informed refusal and subsequently becomes unconscious through no fault of their own, the suspects right of refusal should be preserved and defended, and a search warrant should be obtained to authorize the collection of evidence from the person of the accused.
Task: Right a policy to be presented to the governor for review and possible implementation to improve or correct this impropriety and improve ethics within the criminal justice system.