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Missouri v. McNeely and implied consent

Fullerton, CA |

I was arrest at a dui check point on 5/3, performed several FST that I turley believe I passed with flying colors (received discovery from the DMV and no field test results were included) was really pushed by officer towards taking a blood test (stating to his partner "do we even have the breath test" then asked what I wanted to do) I asked the officer what would happen if I refused (which I was never planning on doing but the way he was handling me seemed very shady) he stated I signed a implied consent with the DMV and If I refused I would automatically loose my license. Long story long I took the blood test and it came back 0.10 Can or does the Missouri v. McNeely ruling apply to me in any way? For instance being told of a serious consicuance if I exercised my right to refuse a bloodte

Attorney Answers 4


  1. You made an impressive personal effort learning of possibly applicable traffic case law for your California DUI case,. However, even if you legally accurate, the case still requires a good traffic attorney licensed in California to evaluate your case for its weak and strong points to determine the best course of action and then to advance them in court properly, with well- crafted legal arguments and Motions.
    I do not know a single successful quasi-criminal case (which covers DUI charges) that benefitted a pro bono defendant better than assistance by a competent legal professional. Yet, you are welcome to try.

    DISCLAIMER The answer given above by the lawyer serves for educational purposes only and provides general information and a basic understanding of the applicable law. Take notice that the answer above does not create an attorney-client relationship as this website is not intended to provide anyone a specific legal advice. Anyone using the site expressly consents that there is no attorney client privilege between any person and any attorney responding. Further take notice that the site should not be used as a crude substitute for any professional and competent legal advice by a licensed professional attorney in the applicable jurisdiction. The attorney above attempted to provide competent professional information, however, the law and its applications may change frequently and vary greatly from other U.S. jurisdictions and locales. Therefore, any information and materials provided above are general in nature, and may not apply to specific factual and legal circumstances related to one's personal legal issues. Contact an experienced lawyer admitted to practice in your State under an attorney-client privilege to further receive a competent legal advice before making any important decisions about your particular legal issue. For further inquiries please contact: Attorney Alexander Ivakhnenko 1021 West Adams, 102, Chicago, Illinois 60607 773-562-8602 http://alexanderivakhnenko.com


  2. As I understand McNeely the case does not eliminate your implied consent to a chemical test. So if the record of what happens looks like a refusal you will lose your license for a year in addition to the possible DUI penalties. McNeely focuses on whether the cops can take a blood draw without a search warrant. The case does not answer the question yes or no but does require an analysis of whether it would have been feasible to get the search warrant before the draw. Often warrants can be obtained in a very short time, and depending on all the facts and circumstances the cops may have had an obligation to seek one before the draw. Bottom line is that you may lose on the refusal but prevail on the DUI unless the cops can show there was no way they could have obtained a warrant.


  3. In Minnesota, we are rather unique in the sense that refusing to submit to chemical testing is a crime. So in essence, drivers are being read an implied consent advisory telling them it is a crime to refuse the test. So, this is a big issue here in this state. Don't know if that is the case in California. Anyway, I've attached a link of an article our firm wrote about the Mcneely decision and its potential impact. I hope it helps. Good Luck!

    In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but instead need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights


  4. The McNeely ruling can apply to your case facts. Implied consent is not really consent in the constitutional sense. Hire a lawyer who knows about how to leverage your case and file the proper motions related to consent for the blood test.

    The above information does not establish an attorney client relationship nor is it meant to provide legal advice.

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