While you don’t have a right to select which type of test you prefer, in most circumstances, you have the right to decline (refuse) to submit to a chemical test. Imagine that you decide to exercise your right to refuse. The Officer then trumps your decision (as he can do) and exercises his right to get a search warrant. You are now at an impasse; the Officer has a search warrant requiring you to provide a urine sample, but your cooperation (agreeing to urinate in a cup) is required to obtain that sample.
Or is it?
In parts of South Dakota (and elsewhere), your cooperation is not required. A generic search warrant may include language allowing a sample of breath, blood, or urine to be obtained by “medically acceptable means.” As this local newspaper reports, in the city of Pierre, South Dakota, “medically accepted means” includes forced catheterization. The story reports on one man who was hooded, handcuffed, and forcibly catheterized. In another anecdote, a three-year old child was forcibly catheterized in a child custody dispute. Those who have been subjected to this type of “search and seizure” report intense pain that lasts long after the date of the actual procedure.
It has yet to be determined if this practice will hold up under the Fourth Amendment’s protection against unreasonable searches and seizures. Although a search warrant may circumvent some Fourth Amendment challenges, is forcible catheterization truly reasonable if there are other, less intrusive means to obtain the desired information?
About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants. Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. (NCDD) and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee. Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the NCDD.
He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 8th edition (Wolters Kluwer/Aspen). Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions. He is a popular international speaker, having spoken at legal seminars in 30 states, the District of Columbia and three foreign countries.
The author would like to thank his associate attorney, Anna Rickels, for her research and contributions to this article.
If you would like to contact the author, please visit: http://www.tndui.com