Search Warrants: What are illegal search warrants and how does this play into a DUI-DWI prosecution

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What is a "search warrant"?

A search warrant is a written order by a judge which permits a law enforcement officer to search a specific place (e.g., "112 Magnolia Avenue, Apartment 3, Atlanta, Georgia," or a "2004 Pontiac Trans-Am, Texas license number 123ABC") and identifies the persons in possession of the real estate or vehicle (if known) and any illegal articles intended to be seized (often specified by type, such as "weapons," "drugs and drug paraphernalia," or "evidence of instruments used to cause bodily harm"). Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (which may also include a prosecutor), setting out his or her good faith belief that the evidence being sought is at the place and in the possession of the person(s) specified in the sworn document.


The 4th Amendment applies to EVERY state: Evidence unconstitutionally seized by the police cannot be used against you in court

The 14th Amendment of the United States Constitution applies the rule embodied in the 4th Amendment to the states. Evidence unconstitutionally seized by the police cannot be used against you in court, nor can evidence "resulting from or growing out of an illegal search be utilized as evidence."


DUI-DWI arrests are rarely made involving a search warrant

Few if any DUI-DWI arrests have anything to do with a search warrant, this is a very rare defense when compared to other crimes. Accident cases and situations where a person gets to his or her home after being involved in either a "hit and run" or "evading a police officer" cases are the most common fact patterns that trigger this type of legal analysis. If police come to your home, don't talk. REMAIN SILENT. In 99% or more of drunken driving arrests, "warrantless" arrests are made. Therefore, it is highly unlikely that you were arrested and have been charged with DUI-DWI based on an illegal search warrant. However, the Fourth Amendment to the United States Constitution guarantees to every citizen the right not to have to defend himself or herself against an illegal search warrant.


DUI-DWI: Search warrants might be procured to get a blood sample of a driver suspected to have drugs or alcohol in his or her system

In some situations following a collision causing a death or serious bodily injury, the police may seek a search warrant to procure a blood sample of the driver for suspected drugs or alcohol in his or her system. Also, some DUI-DWI arrests may be made after you have already reached your residence and have been inside for a period of time. If you (or any other occupant) do not respond to the doorbell or knocking at your door, any entry of your home by the police without a search warrant may constitute an illegal search. Opening the door - even a small crack - will usually result in overzealous officers barging right into the residence.


Remain silent if police come with a search warrant

If the police do obtain a warrant, which can be done via a telephone call to a magistrate judge, they will come into the home. If there is evidence of possible recent alcohol consumption (e.g. empty cold beer cans, empty wine bottles, an opened bottle of liquor), then the police will never be able to determine when any alcohol within your system was consumed. REMAIN SILENT.

Additional Resources

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