Monder Law Group - News
DUI – Limited Consent
Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers.
Limited consent refers to the fact that consent be limited to the purpose defined by law, and explained to the individual. This is highly relevant in prescreening tests in DUI cases. In many cases, the prosecution will want to bring in the prescreening results as evidence of the defendant’s blood alcohol content. This is not constitutional , however, and a skilled defense attorney will know that and know how to get the evidence excluded.
Why Is Limited Consent So Important?
The broad answer: to ensure a just trial and proper law enforcement practices. When pulled over, the police officer should clearly informed the driver that the purpose of the prescreening test is only for establishing probable cause to arrest for driving under the influence, and that a proper BAC test will determine blood alcohol content. The cop must inform the defendant that the chemical test for blood alcohol is different than the prescreening test. Therefore, the defendant consented to the prescreening test only for the purpose of allowing the officer to use the test to assist him in determining whether the driver was under the influence. The driver consented to nothing more; there was only a limited consent to the search of his body; and there was no consent to use the results of the search to determine blood alcohol content.
The defendant did not “knowingly” and voluntarily consent to the search of his body by way of a prescreening test to determine the amount of alcohol in his blood. No, the consent was limited. And therefore, the prosecution should not be allowed to bring in the results to prove blood alcohol content.
Further, the prescreening test is not held to the high calibration standards the BAC test is. The police agencies are not licensed to maintain and calibrate breath testing devices, conduct training, or do periodic accuracy testing to prescreening devices. Therefore, it is arguable not as accurate. Now the reason for excluding it becomes even more obvious—this is now misleading evidence.
Imagine this horrific scenario and you’ll realize why limited consent is so important: The police searched for DUI evidence. Prior to an arrest, they searched for the amount of alcohol in the defendant’s blood by way of a prescreening test. Later, he cops got a blood test with .09% results. Ordinarily, to justify a search the police must have a warrant. At trial, the prosecution has the burden to justify the warrantless search. There is no exception for the warrantless search by way of a prescreening test if the police did not advise the citizen of the scope of the search. In fact, the cops misled the citizen (e.g., this is “not a test to determine your blood alcohol content”), then the defendant did not “knowingly” and voluntarily consent to the search of his body. Thus, the prescreening test result must be suppressed, and the court has the duty to enforce the Constitution.