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John Whitehead's Commentary

Forced Blood Draws & Implied Consent Laws Make a Mockery of the Fourth Amendment [SHORT]

John Whitehead

You think you’ve got rights? Think again.

All of those freedoms we cherish—the ones enshrined in the Constitution, the ones that affirm our right to free speech and assembly, due process, privacy, bodily integrity, the right to not have police seize our property without a warrant, or search and detain us without probable cause—amount to nothing when the government and its agents are allowed to disregard those prohibitions on government overreach at will.

This is the grim reality of life in the American police state.

Our so-called rights have been reduced to technicalities in the face of the government’s ongoing power grabs.

Consider a case before the U.S. Supreme Court (Mitchell vs. Wisconsin) in which Wisconsin police officers read an unconscious man his rights and then proceeded to forcibly and warrantlessly draw his blood while he was still unconscious in order to determine if he could be charged with a DUI.

To sanction this forced blood draw, the cops and the courts have hitched their wagon to state “implied consent” laws (all of the states have them), which suggest that merely driving on a state-owned road implies that a person has consented to police sobriety tests, breathalyzers and blood draws.

More than half of the states (29 states) allow police to do warrantless, forced blood draws on unconscious individuals whom they suspect of driving while intoxicated.

Seven state appeals courts have declared these warrantless blood draws when carried out on unconscious suspects are unconstitutional. Courts in seven other states have found that implied consent laws run afoul of the Fourth Amendment. And yet seven other states (including Wisconsin) have ruled that implied consent laws provide police with a free pass when it comes to the Fourth Amendment and forced blood draws.

With this much division among the state courts, a lot is riding on which way the U.S. Supreme Court rules in Mitchell and whether it allows state legislatures to use implied consent laws as a means of allowing police to bypass the Fourth Amendment’s warrant requirement in relation to forced blood draws and unconscious suspects.

Mind you, this is the third time in as many years that the Supreme Court has taken up the issue of warrantless blood draws.

The differences between the cases may be nuanced, but it is in these nuances that the struggle to preserve the Fourth Amendment can best be seen.

The Fourth Amendment has been on life support for a long time.

Our freedoms—especially the Fourth Amendment—continue to be strangulated by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation.

Worse, on a daily basis, Americans are being made to relinquish the most intimate details of who we are—our biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)—in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are now guilty until proven innocent.

Such is life in America today that roadside police stops have devolved into government-sanctioned exercises in humiliation and degradation with a complete disregard for privacy and human dignity.

Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databases: these are just a few ways in which Americans are being forced to accept that we have no control over our bodies, our lives and our property, especially when it comes to interactions with the government.

Indeed, while forced searches may span a broad spectrum of methods and scenarios, the common denominator remains the same: a complete disregard for the dignity and rights of the citizenry.

In fact, in the wake of the U.S. Supreme Court’s ruling in Florence v. Burlison, any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband.

Examples of minor infractions which have resulted in strip searches include: individuals arrested for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, riding a bicycle without an audible bell, making an improper left turn, engaging in an antiwar demonstration (the individual searched was a nun, a Sister of Divine Providence for 50 years).

Police have also carried out strip searches for passing a bad check, dog leash violations, filing a false police report, failing to produce a driver’s license after making an illegal left turn, having outstanding parking tickets, and public intoxication. A failure to pay child support can also result in a strip search.

As technology advances, these searches are becoming more invasive on a cellular level, as well.

In at least 28 states, there’s nothing voluntary about having one’s DNA collected by police in instances where you’ve been arrested, whether or not you’re actually convicted of a crime.

All of this DNA data is being fed to the federal government.

While the Fourth Amendment was created to prevent government officials from searching an individual’s person or property without a warrant and probable cause—evidence that some kind of criminal activity was afoot—the founders could scarcely have imagined a world in which we needed protection against widespread government breaches of our privacy, including on a cellular level.

Yet that’s exactly what we are lacking and what we so desperately need.

Unfortunately, as I make clear in my book Battlefield America: The War on the American People, the indignities being heaped upon us by the architects and agents of the American police state—whether or not we’ve done anything wrong—are just a foretaste of what is to come.

With every court ruling that allows the government to operate above the rule of law, every piece of legislation that limits our freedoms, and every act of government wrongdoing that goes unpunished, we’re slowly being conditioned to a society in which we have little real control over our bodies or our lives.

WC: 1042

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  is available at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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