Page 1 of 2 1 2 LastLast
Results 1 to 10 of 14
  1. #1

    Default Challenging a Search Warrant for a Blood Test

    My question involves criminal law for the state of: TN-had a recent dui in Tennessee with an Alabama license. Refused blood test for BAC, officer gets warrant signed by magistrate at 5:17 am, hospital records show discharged at 4:57 am for blood test. Would it be typical for DA in a probably low number BAC to dismiss due to improper search warrant?

  2. #2
    Join Date
    Jan 2006
    Posts
    38,709

    Default Re: Improper Search Warrant

    So did they draw blood before discharge?

    was is supposedly based on the warrant or were they taking blood for something else?

  3. #3

    Default Re: Improper Search Warrant

    Yes they did the BAC blood test at about 4:45 am. Warrant was not signed by magistrate until 5:17 am. I have the paperwork from magistrate and hospital records. Yes, based on the warrant. Officer is a new recruit according to local people.

  4. #4
    Join Date
    Oct 2014
    Posts
    7,341

    Default Re: Improper Search Warrant

    Quote Quoting lorie42
    View Post
    My question involves criminal law for the state of: TN-had a recent dui in Tennessee with an Alabama license. Refused blood test for BAC, officer gets warrant signed by magistrate at 5:17 am, hospital records show discharged at 4:57 am for blood test. Would it be typical for DA in a probably low number BAC to dismiss due to improper search warrant?
    The exact facts matter. If the magistrate told the officer that the warrant was approved and the magistrate just didn't formally sign the order until about 30 min later or whatever, then the draw is likely good since the officer reasonably believed he had the warrant. Note that the officer does not himself have to hold the warrant in hand for it to be valid. What the Constitution requires is that magistrate approve the warrant. It may well be worth having your lawyer seek to suppress the blood draw as evidence and see where it goes.

  5. #5
    Join Date
    Jan 2006
    Posts
    38,709

    Default Re: Improper Search Warrant

    Quote Quoting Taxing Matters
    View Post
    The exact facts matter. If the magistrate told the officer that the warrant was approved and the magistrate just didn't formally sign the order until about 30 min later or whatever, then the draw is likely good since the officer reasonably believed he had the warrant. Note that the officer does not himself have to hold the warrant in hand for it to be valid. What the Constitution requires is that magistrate approve the warrant. It may well be worth having your lawyer seek to suppress the blood draw as evidence and see where it goes.
    Taxing matters

    here is the section applicable to warrants sought by electronic means

    https://www.tncourts.gov/rules/rules...l-procedure/41

    2) Requesting a Warrant By Electronic Means. A magistrate may issue a warrant based on information communicated by telephone or other reliable electronic means. The proposed warrant, the signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the magistrate, who may act upon the transmitted documents as if they were originals. If the warrant is being sought by electronic means rather than face-to-face, the warrant affidavit shall be sworn to or affirmed by administration of the oath by audio-visual means by the magistrate, and the examination of the affiant by the magistrate shall also be by audio-visual means; provided, the warrant affidavit shall be in writing and received by the magistrate prior to the administration of the oath and examination of the affiant. The affidavit with electronic signature received by the magistrate and the warrant approved by the magistrate, signed with electronic signature, shall be deemed originals. The magistrate shall facilitate the filing of the original warrant with the clerk of the court and shall take reasonable steps to prevent tampering with the warrant. The issuing magistrate shall retain a copy of the warrant as part of his or her official records. The issuing magistrate shall issue a copy of the warrant, with electronic signatures, to the affiant. This section does not alter the requirement that the affidavit be submitted to the magistrate in writing regardless of the means of transmission.


    as I read that, the warrant must be signed to be valid, physically signed . Does this change your opinion?

  6. #6
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Challenging a Search Warrant for a Blood Test

    What does "discharged at 4:57 am for blood test" mean? If the hospital discharged you so that the police could take you elsewhere, where you were tested only after a warrant was issued, the fact that the hospital was told that the police were planning to test you would not affect the validity of the warrant or later test.

    Also, if the hospital took blood for medical purposes and the police later obtained the blood from the hospital through the use of a search warrant, that would be proper.

    Please clarify what happened.

  7. #7

    Default Re: Challenging a Search Warrant for a Blood Test

    Blood was drawn at hospital for purpose of BAC test only before I was discharged at hospital at 4:57 am. Magistrate signed warrant at 5:15 am(18 minutes after discharge). It appears that police went ahead and forcibly had blood drawn before warrant was signed by magistrate? This is a rookie police officer who may have made a mistake according to a lawyer local to that area. Very small town in TN.

  8. #8
    Join Date
    Sep 2018
    Posts
    5

    Default Re: Challenging a Search Warrant for a Blood Test

    I would think that the prosecutor would argue for an inevitable discovery exception considering the short time frame between the blood being drawn and the signing of the warrant. It would appear they had enough probable cause and were in the process of getting the warrant signed when the blood was drawn so it was inevitability going to be obtained and BAC discovered through normal police investigations.

  9. #9
    Join Date
    Sep 2010
    Posts
    19,125

    Default Re: Challenging a Search Warrant for a Blood Test

    Who did a blood test? If the hospital did one with your consent earlier then the subsequent warrant can indeed obtain that sample.
    If you are saying that blood was involuntarily drawn on the order of the police prior to obtaining the warrant, then your ATTORNEY can make a good argument for excluding it.

    By the way, a refusal is as bad as the DUI itself in Tennessee. It's a class A misdemeanor as well. It has a mandatory one year suspension. About the only thing that probably makes this worth fighting is if you had a BAC over 0.20%.

  10. #10
    Join Date
    Jan 2006
    Posts
    38,709

    Default Re: Challenging a Search Warrant for a Blood Test

    Quote Quoting flyingron
    View Post

    By the way, a refusal is as bad as the DUI itself in Tennessee. It's a class A misdemeanor as well. It has a mandatory one year suspension. About the only thing that probably makes this worth fighting is if you had a BAC over 0.20%.
    It appears scotus has determined that to be unconsitutional and Tennessee amended their implied consent law last year.

    1. Sponsored Links
       

Page 1 of 2 1 2 LastLast

Similar Threads

  1. Search and Seizure: Challenging an Affidavit for a Search Warrant
    By David Schil in forum Criminal Procedure
    Replies: 9
    Last Post: 12-05-2014, 09:36 AM
  2. Search and Seizure: Challenging a Search Warrant as Vague
    By Abhi675 in forum Criminal Procedure
    Replies: 1
    Last Post: 06-27-2014, 01:40 PM
  3. Chemical Tests: Blood Test Missing
    By fallensk8er in forum Drunk and Impaired Driving Charges
    Replies: 1
    Last Post: 03-21-2013, 05:34 AM
  4. Chemical Tests: Blood Test Administered After Refusal, Without a Warrant
    By JChon in forum Drunk and Impaired Driving Charges
    Replies: 12
    Last Post: 02-23-2009, 12:25 AM
 
 
Sponsored Links

Legal Help, Information and Resources