There are challenges that may be raised concerning all blood draws, even those where there was consent. McNeely involved a situation where the defendant specifically refused to consent, and the officer ordered the nurse to perform the test. Talk to an attorney about your facts to determine if McNeely, or any number of other cases, may control your specific situation.
Responding to questions on AVVO does not establish an attorney-client relationship between the questioner and any attorney associated with Garrett Law Group, PLC. Responses should be considered and used for informational purposes only. Every case is unique in its facts, and all legal matters should be discussed with a licensed attorney prior to making any decisions or taking any actions.
There are many factors that go into a DUI case, including the reason for the stop, the FST, the blood draw and test. Make sure you consult with a lawyer on all these issues to see what if any defenses you might have.
Yes. That is the question. Most states have an implied consent law that require the officer to ask you if you will submit to a test. If you say yes then the state will likely argue that you consented. In Minnesota it is not that easy. Before the officer ask you for consent, they advise you (by law) that refusal to test is a crime so consent is not voluntary, it is coerced. It will be interesting few months here in MN. Good luck.
To answer your question as to how the courts will determine if the suspect consented, the police report will typically have a sentence or two included in which it is claimed that the suspect consented. That's about all they need. Sometimes they will have the suspect sign a form consenting to removal of his blood. The suspect may be too impaired to drive a car, but not too impaired to sign away rights.
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