Invalid Test Request

This example concerns a suppression hearing for Mr. McH. The issue concerned whether there was probable cause to even arrest Mr. McH in the first place.

Ready? Here's the facts.

Mr. McH had been involved in a rollover accident. According to the supervising Sergeant during his testimony as the DA questioned him, Mr. McH. wasn't in the car when the police first came upon the accident scene.

He couldn't remember what had happened. He couldn't even remember driving the car that was wrecked. It was when the Sergeant got into the ambulance with Mr. McH that he first detected the odor of alcohol on Mr. McH's breath.

The other officer involved at the scene (Officer B) also detected the smell of alcohol when he went into the ambulance, saying it was "reasonable (reasonably) faint, but detectable." At no point at the scene of the accident was Mr. McH told that he was under arrest. Nor even in custody.

After the ambulance took Mr. McH away, Officer B then contacted Mr. McH's sister-in-law. She told him that Mr. McH had been drinking earlier in the evening. Officer B then went back to his office, filed his report and filled out a notice of revocation of Mr. McH's license and a summons in the charges of driving under the influence of alcohol and careless driving..

It was then my turn to ask questions of Officer B. I was able to show that in fact there was no evidence that Mr. McH was the driver of the wrecked car. Mr. McH had denied it when he was still at the scene. It was only because Mr. McH was the registered owner of the vehicle that the police believed that it was Mr. McH who had been driving.

Moreover, in my concluding remarks I basically showed that there was no probable cause to enforce what is called the Express Consent. In this case, all there was was the odor of alcohol, plus an accident. The only thing that existed was reasonable suspicion, which is not enough to invoke Express Consent. Therefore I concluded that the fact that Mr. McH had refused to have his blood tested was not admissible in court.

The Court agreed for the reasons I just mentioned, and because of the lack of information about the case. Finally, at trial, since no more evidence was introduced, the case was not presented to the jury.

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