DUI, Guns and Breathalyzer

jsalcedo

July 1, 2003, 04:23 PM

THE POLICE CONTACT: SILENCE IS GOLDEN

I have debated writing this article for months.

I am a strong supporter of law enforcement, and I have an extensive background in law enforcement. Even now, I have a number of conflicts which cause me great concern with how the information I am about to impart to you will be used. I do not want to enable the criminals in our society to thwart justice, but I am committed to protecting the innocent from what appears to be an explosion of police abuse. In a case like this, I choose to protect the citizens.

I will start with law enforcement contacts with regard to traffic stops for suspicion of driving under the influence of alcohol or drugs.

The Fifth Amendment of the Bill of Rights states that we are not to be forced to incriminate ourselves. The actual wording is that you cannot be "compelled" to be a witness against yourself. If you are stopped for suspicion of DUI, these are your rights, regardless of the laws of your state.

First, you are to deny having consumed any alcoholic beverages whatsoever. You are never to admit to having one or two drinks. If you admit to consuming even one drop of alcohol, you open the door to probable cause, allowing the police officer to search your vehicle for open containers. Next, you are never to submit to a field sobriety test. You are to refuse to do so. They cannot make you walk the line, balance or anything else. If arrested, you are to refuse to allow a blood or breath test,
regardless of what state law requires, such as revocation of driving privileges for a period of time. That is an attempt to compel you to be a witness against yourself. Supreme Court decisions in this area are quite specific with regard to your rights as follows

Lefkowitz v. Turley, 94 S. Ct. 316, 414 U.S. 70 (19 73).

"The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding civil or criminal formal or informal, where the answers might incriminate him in future criminal proceedings.

McCarthy v. Arndstein 266 U.S. 34, 40, 45 S. Ct. 16, 17, 69 L.Ed 158 (1924), squarely held that "the privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, whereverthe answer might tend to subject to criminal responsibility him who gives it.

The privilege protects a mere witness as fully as it does one who is a party defendant." Maness v. Myers, 95 S Ct. 584, 419 US 449 (1975).

"...where the Fifth Amendment privilege against self-incrimination is involved ... This Court has always construed its protection to ensure that an individual is not compelled to produce evidence which later maybe used against him as an accused in a criminal action... The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.
Hoffman v. United States, 341 US. 479, 486, 71 S. Ct. 814, 818, 95L. Ed.
1] 18 (1951). "

"In Kastigar v. United States, 406 U S 441, 92 S Ct. 1653, 32 LEd.212 (1972), we recently reaffirmed the principle that the privilege against self incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Id., at444, 92 S.Ct., at 1656; Lefkowitz v. Turley, 414 US. 70, 77, 94 S. Ct. 316,322, 38 L.Ed. 2d 274 (1973)...

Miranda v. Arizona, 86 S.Ct. 1602, 384 US 436 (1966).

"We have recently noted that the privilege against self-incrimination --- the essential mainstay of our adversary system is founded on a complex of values ... To maintain a fair state individual balance, to require the government to shoulder the entire load ... to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth... ln sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will."

"...there can be no doubt that the Fifth Amendment privilege is available outside. of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves."

Please also note: The above, as stated by the Supreme Court, are rights and privileges as guaranteed by the Constitution, and anyone (including judges) who knowingly violates those rights may be civilly and criminally liable under several federal statutes. Please see: United States Code,Title 18 Section 241 (Conspiracy against rights), and Section 242(Deprivation of rights under color of law); Title 42 Section 1983 - Section 1986(Civil Rights). Most attempts to pursue action under these laws fail, but very skilled litigators with good factual circumstances can sometimes get some satisfaction. However, if more individuals were to understand the above rights and exercise them at the appropriate times, more successful litigation could be the outcome.

Okay, you got that? You cannot be forced to provide evidence against yourself, therefore you must not allow any tests whatsoever, be it field sobriety "walking the line", or a blood or breath test. Period. If you will follow these instructions, they have no case against you and they are also barred from taking away your driving privileges under the same Supreme Court rulings.

Now to more serious matters If you are contacted as a possible suspect, or even a witness, in any other law enforcement investigation, you are to say nothing. You are to say nothing even when your attorney is present. You are to say nothing, regardless of evidence of your guilt as presented by the law enforcement officers. You are not to try to explain away the circumstances of the evidence they present to you. You are to say absolutely nothing. No matter how tempted you are to try to talk your way out of the situation, you are to give them absolutely NOTHING to verify. If they ask you if the sky is blue on a clear day, you are to say nothing. You are to give them nothing whatsoever. Whatever evidence or witness information they have, you are to say nothing. Even denying any of their allegations can be used against you in a prosecution if it is determined later that you obviously lied. You are to stay MUTE.

The reason for this is quite simple: The evidence the law enforcement officers have is all they must be required to work with. Don't give them anything more. The only time you should consider the option of telling your side of the story is to your attorney in privacy, or in a court of law if prosecuted.

Because you have stayed mute, giving law enforcement nothing in addition to the extrinsic evidence and witness information at hand, the burden of proof available to the district attorney is severely limited and will most often result in a dismissal of charges unless their evidence and witness input is overwhelming and compelling enough for a grand jury to return a bill of indictment. And even if bound over for trial, the jury will be limited to consider only that evidence and witness input.

When you are given your Miranda Rights wherein you are informed that anything you say can and will be used against you, take it to heart If you say absolutely nothing, NOTHING can and will be used against you in a court of law.

There are literally thousands of people behind bars today who tried to talk their way out of a law enforcement contact. Don't fall for the ploy. Law enforcement officers are trained to bluff you into making denials or statements. They will appear friendly and reasonable. They will appear willing to help resolve the matter. They will tempt you to talk about it and appear sympathetic. Don't fall for it. Say nothing. Give them nothing.
Deny nothing. Give them NOTHING. Stick your tongue between your teeth and bite down - HARD. You are to be a marble statue. You do not exist. You have no past, you have no address, you have no name, you have no social security number. You are to give them nothing whatsoever to work with.
This includes whether you understand your miranda rights. When asked if you understand your rights, either say no or don't say anything. Spending a night in jail is preferable to incriminating yourself.

Mike Irwin

July 1, 2003, 04:23 PM

"With 1/2 a beer in her, she's in no shape to hold a decent conversation, much less drive."

That sounds like me anymore.

I had two rather bland Margueritas last Saturday and there was no way that I would have trusted myself to get behind the wheel.

How did I get home?

I walked.

It was a neighbor's lawn party...

spacemanspiff

July 1, 2003, 05:06 PM

Ever had a single glass of red wine as you were beginning to cook dinner only to realise that you ran out of garlic so you decided to make a quick trip to the supermarket? Oh, crap... you happend to get pulled over for doing 35 in that 25 school zone (yeah... don't mention that its 5:30 and schools been out for 2 hours now) so the cop says, "hmm... I smell alcohol on your breath. How about stepping out of the car." You blow, knowing that you've had but one glass of wine and think you'll be fine (its been 5 minutes since your last sip), and guess what -- 0.08 BAC on the machine.

lame reason. so the dinner is a little bland tasting without the garlic. its not gonna kill you. but suppose while you are out driving to the store, thinking you are as sober as can be, and someone else sideswipes you. police detect odor of alcohol on only one of the drivers. hmmmm, guess whos going to be faulted? a kid runs out in front of your vehicle, you didnt see them before it was too late. now a child is dead, and the officer on the scene finds out you have been drinking. i'm sure your conscience would plague you the rest of your life, wanting to go back to that day and choose either not to have that glass of wine, or not to get behind the wheel of that vehicle.

there is no excuse for driving while intoxicated, drunk, inebriated, or otherwise impaired. and dont try to talk about how 'one glass doesnt impair me'. i've been down the road of DWI before. it was my option to let the breathalyzer's results be used. i could have had the Officer take me to the hospital to have blood drawn. i probably would not have been charged with dwi had i done that. however, i'm glad i did, i paid the consequences, and now i have an entirely different outlook on the use/abuse of alcohol.

like i said, drunk drivers dont get any mercy from me, and i support law enforcements efforts to get drunk drivers off the road.

LawDog

July 1, 2003, 05:26 PM

Deny nothing. Give them NOTHING. Stick your tongue between your teeth and bite down - HARD. You are to be a marble statue. You do not exist. You have no past, you have no address, you have no name, you have no social security number. You are to give them nothing whatsoever to work with.

Texas Penal Code: § 38.02. Failure to Identify

1(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

I'd be leery of following advice from someone who advises you to break the law to stay out of trouble.

It always kind of makes me smile when I see advice like this. It is (minus some glaring legal problems here and there) fairly sound advice, but it seems to me to be the legal equivalent of pounding sand down a rat hole.

I mean, if drunks could follow fairly sound advice, they wouldn't be driving drunk to begin with.

Isn't that sort of the definition of drunk? To achieve, through the introduction of intoxicating substances, a mental state where common-sense and logical reasoning have done gone out the window?

Give 'em all the good advice you want, I'm here to tell you that when they're drunk enough to attract the notice of Johnny Law, they're too damn drunk to remember, much less follow, said advice.

LawDog

TheeBadOne

July 1, 2003, 05:29 PM

Damn it! The peoples right to garlic shall not be infringed upon!!! :p

Steve in PA

July 1, 2003, 05:36 PM

"In PA, you can refuse the breathalyser, but they're within their rights to haul you down to the station and have a blood test administered."

Not quite........the officer chooses the test (breath or blood)......and you have the right to refuse.......however your DL will automatically be suspended for (1) year.

Mike Irwin

July 1, 2003, 05:36 PM

"Deny nothing. Give them NOTHING. Stick your tongue between your teeth and bite down - HARD. You are to be a marble statue. You do not exist. You have no past, you have no address, you have no name, you have no social security number. You are to give them nothing whatsoever to work with."

Hey, guess what...

You have no expectation of them having to release your silent, marble-like, tongue-in-cheek a$$ from jail, either.

Christ, what some people will do to avoid taking responsibility for their own actions when this site is one large protracted scream for individual rights & responsibility...

SIGH.

TheeBadOne

July 1, 2003, 05:37 PM

Amen

bogie

July 1, 2003, 05:37 PM

Okay - One for the jailhouse lawyers out there (and Lawdog...):

I've got a friend who says that if he ever gets pulled over, he's going to refuse to do ANYTHING until he consults with his attorney. He's not refusing the test - he's just postponing it until after he confers with the shys... er... legal professional... He figures that will give him time to sober up...

Poke holes in the theory, anyone?

spacemanspiff

July 1, 2003, 05:42 PM

wont matter if they detect the smell of alcohol on his breath, not to mention slurred speech and poor motor skills.

LawDog

July 1, 2003, 06:10 PM

I've got a friend who says that if he ever gets pulled over, he's going to refuse to do ANYTHING until he consults with his attorney. He's not refusing the test - he's just postponing it until after he confers with the shys... er... legal professional... He figures that will give him time to sober up...

Poke holes in the theory, anyone?

Friend attracts the attention of one LawDog. To do this, he's got to be committing some nasty driving errors.

LawDog gets in behind friend, turns on Dash-Cam and proceeds to record friends driving for legal posterity.

Once LawDog has decided that friend is probably DWI due to the number and/or type and/or frequency of traffic infractions, LawDog will now turn on the overheads to pull over friend. The amount of time needed for friend to notice that bloody great lights in his rear-view mirror, decide what to do about them, and then blearily decide where to pull over are also recorded.

Note at this time, LawDog believes that the driver is intoxicated and is making contact with the driver in an attempt to find something to convince LawDog that the driver isn't drunk.

Upon driver contact, if LawDog smells the odor of an alcoholic beverage, he will announce for the camera, "Sir, you've been drinking."

The driver is now under arrest for DWI.

LawDog will ask that the driver exit the vehicle and stand at the rear passenger side quarter panel of his vehicle, so that he will not be between both vehicles should another drunk ram the rear of LawDog's cruiser.

Friend will also be on Dash-Cam whilst standing at the rear quarter panel, and any swaying, vomiting, staggering, stumbling and/or hiccuping will be on camera.

LawDog will then look through the car windows at the inside of friends car, annoucning for the benefit of the jury watching the videotape the presence and number of beer cans, whisky bottles or other drink containers and the presence of drool/slobber/vomit.

LawDog will then walk back to friend, comment upon his bloodshot eyes, alchol breath, alcohol stains on clothes, slobbering, drink umbrellas in pockets, blearly expression, vomit on clothing, and/or any other indicators of intoxication that friend may be displaying.

At this time, LawDog will ask to see friends' Drivers License, and remembering the Dash-Cam, will wait until friend has a grip on his wallet, to begin asking friend if he noticed the driving errors that led to the traffic stop. If friend doesn't respond, LawDog will begin detailing each traffic error friend made.

This is to split friends concentration, forcing him to concentrate upon two different tasks at once which is one of the first things to go south once you become intoxicated. Friends face, body posture, expressions and responses (if any) are recorded.

Once the drivers license is presented, LawDog will then ask friend if he will take the Standardized Field Sobriety Tests (SFST).

If he refuses, he's still under arrest.

If he does, it's more for the jury to look at.

Friend is handcuffed and taken to the station. He is placed in a room with an Intoxilyzer and yet another video camera. Any refusal to Intoxilyze will be recorded in full video and audio format, to include staggering around the room, babbling, off-key singing, falling down, the usual stuff drunks do.

If he wishes to wait for his attorney, he will be marked down for a Refusal to Test (any reactions to the announcement also taped) and tossed into the drunk tank to sober up.

LawDog

Steve in PA

July 1, 2003, 06:12 PM

What LawDog said!!!!!!!! :neener:

bogie

July 1, 2003, 06:28 PM

Well, thus far my buddy has been lucky (and thankfully avoided killing anyone), but I keep expecting to hear that he's in the clink...

Oh, he might get some professional courtesy thrown at him, because he _is_ a lawyer (corporate type), and is commonly prepared to obfuscate the issue at hand until either the sun comes up/goes down (and just "what" is the exact position of said celestial body, anyway?), the cows come home (define "cow," and aren't you sure you didn't mean the male bovine?), or Hitler gets a pair of ice skates...

spacemanspiff

July 1, 2003, 06:37 PM

a phone call for what?
to tell you your friend is in jail?
to tell you your friend is dead from an accident he caused while driving drunk?
to tell you your friend is being charged with vehicular manslaughter because he killed someone while driving drunk?

no offense, but some friend....

bogie

July 1, 2003, 06:40 PM

Well, yeah, basically...

Yeah, he's a friend... Not a "shooting" friend, but he's okay... One can only try to change folks' behavior so much - they need to alter it themselves...

Friendship doesn't mean that I've gotta ride shotgun with him on New Year's Eve...

444

July 1, 2003, 06:40 PM

This thread goes from asking about minimum blood alcohol levels to talking about vomiting and staggering and running over children.
Hard to follow a decent conversation when exaggeration and extremes are used to make the case. But hey, I am just an on-looker.

spacemanspiff

July 1, 2003, 06:53 PM

it isnt 'exaggerations and extremes' to those of us who have learned the lessons of driving drunk from personal experience or in the scope of job duties.

let me ask you something. you have a friend that you meet for a couple of beers. you spend 2 hours drinking 2 pitchers of beer total. 3-4 beers each. are you okay to drive home? are you over the legal BAC limit? suppose you have your kids with you and have stopped at a friends place, and indulge in a few drinks. are you really a responsible care-giver to those kids since you have impaired yourself and chosen to drive a vehicle?

suppose you saw people doing this on a weekly basis. endangering themselves, their loved ones, and any other driver on the road. what would you say to them?

know who i just described? my mother.

greyhound

July 1, 2003, 06:58 PM

Good point about how this thread really wanders. No doubt drunk driving is wrong but it seems that what is considered impaired driving is really shrinking.

My father has an opinion on this as well as most other things, as recently back as the 50s the relatively few number of cars on the road made drunk driving a very small problem. In fact, he has a tale where he and his buddies ran off the road into a public park, and the cop detirmined which of them was least drunk and told him to drive.

MADD has done some great work in drawing attention to what was a big problem. But, having done that great work, they face the problem that all such organzations face when they are successful: in order to justify their continued existence, they have to create new dragons to slay. I think they have fone from being "Mothers Against Drunk Driving" to "Mothers Against Drinking". By continuing to lobby for still lower and lower legal BAC limits, they justify the funding to their organization. The thought that 1 beer with dinner disqualifies you from driving home is ridiculous. If you feel impared after 1 drink, then don't drive. If you do drive drunk (determined by swerving, weaving etc, not solely BAC) then you're an idiot and deserve your fate. Sometimes I think that's the purpose behind sobriety checkpoints; to pop the guy who had 2 beers over 3 hours - not to get the habitual offender or assclown weaving his way down the road.

I have a close buddy who's a cop, and his department (Howard County, MD) has contests and citations for those who have the most DWI arrests. Tell me that's not incentive to pinch the guy who had 2 beers....

TarpleyG

July 1, 2003, 07:04 PM

Mike,

In many states refusing to blow means automatic suspension of your driver's license.

Do what I do, folks.

Don't drink.
So what. That's a hell of a lot better than fighting a non-winning battle against the hard evidence of a breathalyzer test. I'd rather be stuck without a DL than sitting in jail or having to pay tens of thousands of dollars for a defense.

Granted, not drinking is an option, just not for everyone. I don't get trashed and drive but a .08 BAC is a joke. One or two beers. Again, we let the guvmint tell us what's best for all of us because of a few bad apples.

GT

TheeBadOne

July 1, 2003, 07:07 PM

It's not one or two beers unless you're 90 lbs and slam them. :rolleyes:

LawDog

July 1, 2003, 07:15 PM

but a .08 BAC is a joke. One or two beers.

One beer consumed in 15 minutes by a 150 pound man nets a BAC of .019. Little bit shy of .08

2 beers in fifteen minutes by the same 150 pound man nets a BAC of .045. About half of the .08 in your quote.

http://www.intox.com/wheel/drinkwheel.asp

I'm curious as to what you use to figure a BAC of .08 from "one or two beers".

LawDog

444

July 1, 2003, 07:22 PM

So what does it take to reach the legal limit in terms of drinks/time for a more realistic 200 pound man ? What effect does body weight play ? Why is it that some people are more effected by alcohol than others ?

I know that if I drank two beers in 15 minutes, I would be half drunk.

How many men weigh 150 pounds ?

LawDog

July 1, 2003, 07:49 PM

444, according to the link I posted, a 200 pound man drinking 5 beers in one hour would have a BAC of .077.

The same 200 pound guy, drinking the same 5 beers over a period of 2 hours would have a BAC of .06.

LawDog

TheeBadOne

July 1, 2003, 07:52 PM

...and that's just to get there. To keep there, keep slamming.

444

July 1, 2003, 07:53 PM

:what:

I would be crushed if I drank five beers in an hour. Am I reading this correctly that this would still be under the legal limit ?

What happens if you drink less than that, but keep drinking ? Lets say you drink one beer every 20 minutes. How long would it take you to reach the legal limit ?

SkunkApe

July 1, 2003, 07:57 PM

A good read:

http://auto.consumerguide.com/auto/editorial/imho/index.cfm/act/opinion11

Partial Article:

Lie: Drunk driving causes 41 percent of traffic deaths in this country. The National Highway Traffic Safety Administration (NHTSA) and Mothers Against Drunk Driving (MADD) quote this figure liberally to exaggerate the problem, and compliant popular media play along. Repeat a lie loud and often enough, and it becomes accepted as truth.

Truth: NHTSA and MADD blithely equate "alcohol related" fatalities -- which involve someone, anyone, often not a driver, who is either proven or ASSUMED to have some level of BAC -- to "drunk driving" deaths. Who was driving, who was at fault, and BAC levels matter not here. If a sober driver hits a drinking pedestrian or bicyclist; if two sober drivers collide and anyone in either vehicle has had a drink, these organizations consider it "alcohol related."

Truth: Some level of BAC--sometimes ridiculously high (beyond fatal), more often in the low .08-.10 range that MADD has recently criminalized--is entered into the data in a great many cases where there is no testing, no evidence, and no one is ticketed as DUI. How many? RIDL analyzed NHTSA's 2001 fatal accident data and found, in Michigan, for example, that 154 (35%) of 441 claimed "drunk" drivers were listed as "drunk" with neither evidence nor proof.

Lie: Drivers with BACs .08 and over are dangerously impaired and should be arrested, prosecuted, and severely punished--even first offenders. Citing tragic, heartbreaking individual stories of loved ones killed and lives ruined by drivers supposedly in the .08-.10 range, MADD convinced Congress in 2000 to force states to lower their legal limits to .08. Thirty-four states had done so by this January, and the rest (fearing the loss millions of dollars in federal highway funds) likely will comply by the October 1, 2003, deadline.

Truth: NHTSA's own highly questionable 2001 data shows clearly that targeting drivers in that low-BAC range is an egregious waste of resources. Less than 1.3% of 2001 fatalities involved a driver between .08 and .10 BAC vs. 12.4% at .15 or greater. Even the .00-.02 (trace level) range accounts for about 1.2% of fatalities. Should we target that group next? Don't ask. "Anyone with a modest understanding of this issue, and who is honest, " says NMA President Jim Baxter, "knows that drivers with low BACs such as .08% are no more likely to be involved in an accident than someone with a BAC of 0.0%."

Lie: Breathalizer tests are accurate indications of alcohol impairment.

Truth: Only blood tests provide accurate readings of blood content. Breath tests indicate the content of alcohol in the breath, which is affected by medications, aspirin, cough drops and mouthwash and correlates very poorly -- plus or minus 50% -- with actual blood alcohol content. The portable ones used "in the field" are notoriously inaccurate, yet they are routinely viewed as reliable indicators of driver impairment, leading to arrests, incarcerations, instant vehicle and license confiscations without due process and, incredibly, court decisions.

Lawdog, I'm particularly interested in how the information in this article compares with your first-hand experience.

Mike Irwin

July 1, 2003, 08:04 PM

"Granted, not drinking is an option, just not for everyone."

True. But then be responsible enough to make arrangements for transportation other than you behind the wheel.

"I don't get trashed and drive but a .08 BAC is a joke."

I agree. I think it's far too high. When it comes to driving, most people suck when they're stone cold sober.

"One or two beers."

How big are your beers that one or two is getting you above .08?

"Again, we let the guvmint tell us what's best for all of us because of a few bad apples."

Quite frankly, ANYONE who gets behind the wheel while impaired is a potential fatal accident, and that has the potential to affect everyone.

So it's just not a few bad apples, it's all the bad apples.

You think our drunk driving laws and enforcement mechanisms are bad?

Check out the DUI laws in Europe.

444

July 1, 2003, 08:09 PM

I can tell you this from personal experience of working for the last 20 years as a paramedic in an extremly high volume system that the vast majority of MVAs that I respond on involve alcohol; as in, the driver of one or more of the vehicles are obviously drunk. Now I realize that I work in Las Vegas and this may not be as common elsewhere.
I once had an out of state paramedic ride along with me. Around noon we had run a half dozen or so calls and she asked me; "I don't want to question your skills or anything, but why don't you tell the nurses at the hospital that the patients are drunk". I said, I would be more inclined to mention something if the patient wasn't drunk. By the time we had run a dozen calls we had ONE patient that wasn't drunk. She apologized before leaving.

LawDog

July 1, 2003, 08:27 PM

Skunkape, first I'd like to point out that intoxication does not necessarily mean a BAC of .08% .08BAC is simply the Blood Alcohol Concentration at which everyone is presumed to intoxicated to the point of impairment.

To clairify, if Jane Doe has a BAC of .02%, but cannot keep her vehicle between the ditches, then Jane is DWI even though she hasn't reached .08%.

Too many people believe that you cannot be impaired unless you reach a BAC of .08. This is incorrect - everyone is intoxicated to the point of impairment at .08%, BUT some people can be intoxicated to the point of impairment at lower BAC levels.

Also, people in Texas are often of the erroneous assumption that you can be DWI only if you have been drinking alcohol. Any substance introduced into the human body which impairs that persons ability to drive, can lead to a DWI arrest and conviction. Cold medicine, marijuana, pain-killers can lead to a DWI arrest and conviction in Texas.

In my experience, 90% of the single vehicle accidents I've been primary officer on where someone went to the hospital involved alcohol or drug use.

About half of the accidents I've worked as primary officer involving two or more vehicles in which someone went to the hospital involved either alcohol or drugs.

All vehicle accidents that I've worked in which someone was killed - either single vehicle accidents or multiple vehicle accidents, and accidents where I wasn't the primary investigating officer - involved alcohol.

LawDog

SkunkApe

July 1, 2003, 08:41 PM

Thanks, LawDog.

I don't doubt that everyone is impaired to some extent at .08 BAC, but I question if everyone is impaired enough to make them unsafe at that point.

I'd wager that you with a BAC of .08 are a far better driver than my neighbor stone-cold sober. She can't even back out of the driveway without hitting the trashcans.

To me, arresting a man with a .08 BAC because he might accidently crash into someone is a little like arresting a man with a gun beacuse he might accidently shoot someone.

I have no problem with pulling over a driver (as you described) who is obviously not in full control of his vehicle. I do have a problem with pulling over a driver for not wearing a seatbelt, catching a whiff of beer-breath, and convicting him for .08 BAC.

Thanks gain for your response. You offer a perspective that is otherwise not readily available to me.

By the way, is your definition of "involved alcohol" the same as MADD's?

Pilgrim

July 1, 2003, 09:04 PM

Schmerber v. California (1966) - requiring chemical testing of a suspect's blood subsequent to a lawful arrest is merely the collection of evidence. It is not compelling testimony which is protected by the Fifth Amendment. An arrestee is not entitled to the presence of counsel while chemical testing is conducted.

Police may also forcibly take blood without a warrant subsequent to a lawful arrest for driving under the influence if:

They have probable cause they will find evidence of intoxication,

The blood is taken in a medically approved manner,

There are exigent circumstances, i.e., the evidence is being destroyed because it is being metabolized, and

There is no time to get a warrant.

Pilgrim

LawDog

July 1, 2003, 09:10 PM

Actually, SkunkApe, for Intoxilyzer training volunteers get blitzed and perform various tasks and the officers being trained to use the Intoxilyzer try to guess what the volunteers BAC is, then Intoxylize the volunteer and see how close their guess was.

One such training event used, among other things, a driving simulator.

Folks, I'm here to tell you, I am lucid, articulate and clear as a bell at .07BAC and couldn't drive a straight line on the simulator to save my life.

Wound up in a simulated living room, if my somewhat fuzzy memory serves.

I'm not sure what MADD's definition of 'involved alcohol' is.

I don't look upon it as arresting a man with a gun because he might accidently shoot someone. I see it more as: the man with the gun has already shot into a crowd, he just didn't hit anyone. I'm not going to give him the opportunity to randomly shoot into another crowd.

LawDog

SkunkApe

July 1, 2003, 09:23 PM

Ahhhh, good analogy about firing into the crowd, LawDog. I like it.

MADD (according to the article) claims that "alcohol was involved" if anyone person had any BAC. For example, if a sober man with a drunk passenger drove into a tree, then alcohol was involved.

I looked at the link you posted for determining BAC, and I think I may previously have been overestimating my own BAC after a certain number of drinks.

LawDog

July 1, 2003, 09:35 PM

See, there's kind of the problem. MADD has decided that if any involved party in the accident has been drinking, alcohol is involved. I kind of have a problem with that, seeing as how I've driven more than one drunk home.

On the other paw, I consider the accident to involve being 'drunk' if the driver has been consuming alcohol, smoking weed, chasing a Lortab with a decongestant, washing down a perscription cold tablet with half a wine cooler, enough ether fumes in the car to make my eyes water, Bolivian marching dust, skin popping meth, too many Benadryl, etc., etc., you get the picture.

How do I compare my apples with MADDs oranges?
*shrug*

As far as over-estimating your BAC remember that there's a chance that any one person could be intoxicated to the point of impairment on a lower BAC than .08.

Err on the side of caution. Cab drivers may not be exactly cheap, but they're cheaper than a bondsman.

BAC guesses? 7 beers/5 hours/155 pound male = .058 BAC.

LawDog

SkunkApe

July 1, 2003, 09:39 PM

BAC guesses? 7 beers/5 hours/155 pound male = .058 BAC. -LawDog

For the benefit of other readers, Lawdog was responding to a portion of my post that I edited out before I saw his response.

Mike Irwin

July 2, 2003, 01:09 AM

In the words of the late, great, Sam Kinnison... (paraphrasing)

"It's not like we want to drink and drive drunk, just how the :cuss: else are we supposed to get the car home?

None of us says 'Hey! I think I'll slide into a family of 6 tonight!'"

Thus endeth the humorous interlude.

Erik

July 2, 2003, 01:47 AM

You know, I kid you not, I probably copied four different quotes from Lawdog's various posts with the intent of posting them and following with "what he said."

Sir, you say things well. (Here and elsewhere.)

That said...

You know what's comming...

What he said. :p

chaim

July 2, 2003, 02:37 AM

I have a close buddy who's a cop, and his department (Howard County, MD) has contests and citations for those who have the most DWI arrests. Being from Howard County MD (Columbia) that brings to mind a now funny incident from my past (it made me so angry that I was shaking at the time).

About a decade ago I went with my best friend to a then popular nightclub in Columbia (Margarita Maggies). Since I was the driver I had only one drink (since we got there at 9pm and planned on staying until around 1am I figured that should be ok). This was before I was religious so I didn't keep kosher so in the four hours we were there I had that one beer when I first got there followed by food (lots of it) and lots of soda and fun (hey it was a dance club).

Anyway, when we leave I notice a cop sitting in the parking lot. Unfortunately, we left at 1am, about an hour before closing so we were just about the only people leaving at that particular time (there were still lines out the door). I notice when we are pulling out of the parking lot that the cop decides to fall in behind me.

Not being in the mood for a ticket and knowing that if pulled over I'll have to go through the inconvenience of a drunk test (everyone "knows" that everyone coming out of Maggies at that time of night is drunk :rolleyes: ) and needing to get up early the next morning for work (at that point in my life leaving at 1am and being in bed at 2am was calling it an early night) I set the cruise control at the speed limit and I'm super aware of my driving. Well, about 2 miles down the road the cop turns his lights on.

Now in the cop's defense, when the cop gets to my window he may smell alcohol since my friend was wasted and he also smells breath mints since I was a smoker at this time in my life and I hated it when my breath stunk. However, he had no reason to pull me over to begin with. He gets to my window and without being specific starts alledging that I was speeding and driving wrecklessly:
"Son" (mind you, at 23 at the time I was older than he looked), "do you know how fast you were driving?"
ME: "Yes, I was going the speed limit"
Him: "The H-ll you were, you were going well over and I witnessed you weaving in and out of your lane" (both bald face lies, and in fact while he was following me with my cruise control set at the speed limit we were passed by several cars going just over the speed limit)
"You've been drinking, get the H-ll out of the car"

He then instructs me to stand on one leg (he is very specific that he wants me to stand on my right leg) and put my hands out to my side. I tell him (truthfully) that I have a bad ankle and standing on that leg will cause an incredible amount of pain and there is a very real chance my ankle will outright give out (it does from time to time when standing on both feet). He screams at me to do as he told me (using some quite colorful language that would get me kicked off the board). Of course, on my weak ankle my ankle is shaking like all get out.

At this point another cop drives up.

The original cop gives me the breathalizer. I pass (presumably though they never tell me what I blow, but remember I had one beer four hours and much food before). Then they give me another and then a third.

Then I overhear their converstation:
Cop one (the one that pulled me over): "This can't be right"
Cop two: "Do you want to do another test?"
Cop one: "maybe you should do it"
Cop two: "I trust you, you know what you're doing so I don't think that is needed"
Cop one: "should we bring him in?" :what:
Cop two: "that's up to you"

At this point they move further from me so I can't hear them discussing something and looking over at me (and yelling at me every time I look directly at them).

This goes on for a while. At this point I've been there for over 30 min with the various field sobriety tests (they gave more than just the one), three breath tests, the discussion between the cops, and (I believe) intentional leaving me to stew for a while.

Eventually, one of the cops (I don't remember which) goes to my buddy and tells him that I am obviously drunk (yeah right, remember one beer, four hours and lots of food ago) but they can't prove it so they have to let me go. He then asks my completely wasted friend to drive MY brand new car since I am supposedly too drunk to drive. Of course, I am told of this later by my friend since at this time I am being yelled at about not driving drunk and how they'll let me off this time and next time I won't be so lucky etc, etc by the other cop.

Of course I never get a ticket for either of the supposed reasons I was first pulled over (maybe because I wasn't speeding or driving wrecklessly).

Anyway, not sure how this fits in with the rest of the thread. I guess in that while we all agree that drunk driving is a major problem that we want something done about but there is a real fine line that must be walked here. We want the cops to catch those jerks out there making the roads dangerous by driving drunk but at the same time we don't want those same cops to trample our rights at the same time (harrassment of innocents as happened to me, sobriety road blocks, etc).

TheeBadOne

July 2, 2003, 09:05 AM

It does sound familiar. Most people are for traffice law enforcement, just not when they are the one who gets stopped.

lapidator

July 2, 2003, 10:20 AM

I didn't start this thread off with the premis that people should be allowed to go driving along intoxicated and get away with it.

The holier-than-thou-you-don't-know-what-you're-talking-about-because-you-haven't-seen-the-result-of-drunk-driving-first-hand, or you-haven't-had-your-(insert family member/friend her)-killed-by-a-drunk-driver folks can sit back, take 10 deep breaths and blink their eyes a few times -- that isn't the point of this thread.

All of the BAC tables are based on averages. They have little to do with what any specific person will blow. Further, the crime (IIRC) is not blowing a BAC over a specified limit, it is DRIVING DANGEROUSLY, the BAC is simply a way of gathering evidence, without which it may simply be your word vs. the LEOs word.

The point is -- DUI is yet another excuse, here in Hell -- Massachusetts, to PERMANENTLY disqualify you for gun ownership.

The only reason Massachusetts passed this law was -- you guessed it -- money:

From the 1 July 2003, Boston Globe --
LAWMAKERS REACH COMPROMISE ON TOUGHER DRUNK-DRIVING LAW
Author(s): BRENDAN MCCARTHY Date: July 1, 2003 Page: B8 Section: Metro/Region
With a deadline hours away and $2 million in federal highway money at risk, state legislators reached a compromise yesterday on a tougher drunken-driving law.

The so-called per se law means that drivers with a blood-alcohol level of .08 or greater will be deemed legally impaired in Massachusetts. Under the old law, prosecutors had to prove at trial that the driver was legally drunk, even if breathalyzer tests showed a blood-alcohol level of .08 or more. Massachusetts was the only state without such a law.

For the state to qualify for an incentive grant of approximately $2 million from the US Department of Transportation, the legislation had to be signed into law by midnight last night.

Enactment of the new law will also protect future federal highway assistance that is projected to be $5.4 million next year and as much as $21.6 million by 2007.

Lieutenant Governor Kerry Healey signed the bill early last evening. Governor Mitt Romney was traveling to the Czech Republic, making Healey the acting governor.

Representative James E. Vallee, a Franklin Democrat and House chairman of the Criminal Justice Committee, while noting the increased funding, stressed the law's impact on public safety.

"The greater concern is reducing the number of alcohol-related traffic deaths in the Commonwealth," he said.

The legislation also doubles the fine for driving under the influence of drugs or alcohol from $125 to $250 and increases from 120 days to 180 days the time that a driver's license can be suspended for refusing to take a breathalyzer test.

Now don't get your undies in a wad -- I'm not advocating letting drunks off the hook, but doesn't anyone see my point here?

1) another way to lose your guns forever
2) MONEY MONEY MONEY -- otherwise no bill? Seems like there apparently wasn't a problem that required congressional attention untill they saw the carrot!

Lapidator

TheeBadOne

July 2, 2003, 10:32 AM

Drunk Driving: another way to lose your life, or someone elses, forever
http://homepage.mac.com/jbeck/artwork/john/drunkdriver.jpg
(simulated photo)

H Romberg

July 2, 2003, 10:45 AM

My cousin is doing 5 years in the greybar hotel in Fla. right now for running over and killing a man after he had "one too many". Don't get me wrong. He's normally a great guy, and he's no wino either, but I sincerely believe he got off WAY too lightly. He killed a man for christsake. Somebody's Dad is DEAD now because he felt he had to drink and then chose to drive. *** is wrong with the world? :banghead: What is the difference between reckless discharge of kinetic energy using a car or using a gun? I don't see one.

Because of that, I don't drink much. When I do (and I'm talking one drink over 3 hours) I'd no more drive than I would shoot.

444

July 2, 2003, 10:45 AM

Unlike that simulated photo, I have seen many people like that for real. The real thing usually looks much worse. I have seen a number of auto/ped accidents where the driver was stone sober. In a number of cases the person at fault was the pedestrian. What drum do we beat for those ?
It seems like everybody has to have a cause.

lapidator

July 2, 2003, 10:55 AM

TheeBadOne,

You've successfully changed my mind.

From now on, i will not rest until we jail for atleast 10 years all drivers with a BAC, via breath or blood test, of over 0.01. I call to legislators everywhere, "How many more must die, Mr. Speaker?!" If any trace of alcohol is measured, you go to jail -- period.

In order to make room for all of these criminals, we're going to spend another B$s building a -- no not a debtors prison -- a drunks prison. Pretty soon, everyone will be there, at one time or another (except for Mike -- he doesn't drink ;) ).

Further, it's not enough to wait until a specified person actually drives in a manner consistant with drunk driving -- therefore, we're going to have breathalyzers installed in all automobiles and motocycles, new and old. If the breathalyzer detects any alcohol, the electric doors will lock and the OnStar(tm) system will notify the local LEOs.

Lapidator

Tamara

July 2, 2003, 11:06 AM

Wow, TheeBadOne, the only thing missing from your last post is a caption saying "...it's for the children!"

I guess emotionalism and sensationalism are fine when applied to the right arguments. :rolleyes:

TheeBadOne

July 2, 2003, 11:17 AM

Minimizing is not a great answer either Tamara...:rolleyes:

bogie

July 2, 2003, 11:39 AM

Well, I know one fellow who is a felon, following three Texas DUIs within 10 years... He's on probation, and has to blow just to start his car.

Not a good thing.

Now for my "good samaritan" story...

It was about 1983 or so... I'm in college (Eastern Kentucky University, Richmond, KY), and it's finals week. A friend from the dorm, a grad student, just wiped out on a test. He went downtown to kill whatever brain cells betrayed him.

I got a phone call at 11:30 that he's too drunk to drive, because he can't find his car, much less hardly walk, so I should walk down to bring him home. Fine, no problem.

So, 15-20 minutes later, I'm walking up the hill on 1st Street, by the Family Dog bar, and a townie, who it seems doesn't like college students, sucker punched me. Wham, outta nowhere. One punch, and I'm over backwards, bang the noggin' on the pavement.

A short period later, I come to, and I'm sitting on the curb, dripping on the pavement (broken node...), and a nice ossifer tells me that I'm going to be the guest of the city for the evening. I explain what happened, several witnesses explain what happened, it don't matter. Let's let the judge figure it out.

So, spent the night, sober, with a headache and a broken node, in the drunk tank.

Cool part was that they caught the guy who thumped me, same night, and he resisted arrest before they tossed him... in the drunk tank. But he was wasted, and just passed out... And since I'm a non-violent person, I controlled myself and didn't kick the crap outta him.

Went in to see the prosecutor in the morning. Thumper had gone right before me. Prosecutor tells me that they're wanting to charge me with disorderly conduct and thumping on Thumper, who was about half my size... Here I am, two black eyes, nose all over my face, maybe a concussion, really ugly looking, and Thumper, who, while he resisted arrest, received his abrasions and contusions so they didn't show all that well. Good thing I didn't do a boot dance on him...

I couldn't resist it. I was NOT a happy camper. I told the prosecutor the entire "walking downtown to pick up a buddy, got blindsided, etc., and that, yeah, I hit the guy as hard as I could, but my nose (and I couldn't talk too darn good either) just couldn't hurt his fist."

End result: Got told to call someone to drive me home.

My buddy had no idea of how he got home, but he got home.

No4Mk1

July 2, 2003, 11:45 AM

The original post was:

DUI, Guns and Breathalyzer

Well, Massachusetts is now amoung the rest of the nation in that a failed breathalyzer test (in our case 0.08 or higher, or 1 beer within 30 minutes of blowing) is now considered per se evidence of a DUI. What happens if you refuse to blow? Can you still argue that the device was broken/uncalibrated? Is there any legal defense left?

What does have to do with guns? In MA, a first time DUI conviction will result in disqualification for a gun permit.

Lapidator

There are a number of issues that deserve discussion from this topic, but it seems the thread is turning into a "DUI is bad!!!!", "No it isn't!!!", "Cops are evil!!!", "No they aren't!!!" shouting match.

Here is my feeble attempt to steer it back around to something related to RKBA and the BOR.

First, set aside the debate about BAC, breathalyzers, etc. and ask the question, is a DWI/DUI conviction (even if legitimate) enough to warrant taking away an individual's RKBA? There are those here that would argue that the RKBA is inviolate, and that no crime is enough to strip it from the criminal. In all honesty, I fall somewhere in the middle of this debate right now, but definitely think that stripping RKBA for a DWI/DUI is way over the top....

Second, there is the issue of the 5th amendment and overzealous enforcement of DWI/DUI laws. This is one area of our society where we seem to have abandoned the presumption of innocence. If I truly have the right not to be "compelled" to be a witness against myself, then how does it make an iota of sense for me to be punished (have my license suspended/revoked) if I exercise this right??? As Lawdog eloquently described, your average drunk is going to manage to incriminate himself along the way regardless, so what is the point in violating the 5th amendment rights of every citizen pulled over????

Finally, and this is not something I am prone to discussing in open forums, but I think it is important enough to warrant discussion here. I have done much more than my share of drunk driving, and God only knows why I am not in jail right now for DUI/DWI or worse. I can only thank God that I have never seriously hurt another person or myself with my own weakness and stupidity. I want to make it very clear to everyone reading this that in my opinion (and that is worth exactly what you paid for it...) if you are so compelled to drink that you do not feel you can either not drink before driving, or find another means of transportation when you are drinking, you very likely have a problem with alcohol. Be it one beer or 15 shots of vodka, if you need it so badly that you are willing to risk imprisonment, manslaughter, or death for it, then you have your priorities seriously out of whack. Take it from one who knows first hand....

Flame away! ;)

TheeBadOne

July 2, 2003, 01:21 PM

Police Officer Melvin Lisojo
Newark Police Department, NJ
End of Watch: Tuesday, June 24, 2003

Biographical Info
Age: 35
Tour of Duty: 8 yr

Officer Lisojo was killed in an automobile accident when his patrol car was broadsided by a vehicle that had run a red light at Bergen Street and 18th Avenue. The driver of that vehicle was later found to be intoxicated. Officer Lisojo was the passenger in the second of three patrol cars responding to a shots fired call at 0200 hours. As Officer Lisojo's patrol car entered the intersection, it was struck broadside, causing it to flip onto its side. Officer Lisojo and his partner were both transported to University Hospital in critical condition. Officer Lisojo succumbed to his injuries a short time later.

The driver of the vehicle that struck the patrol car was arrested and charged with vehicular homicide, recklessly operating a vehicle and driving while intoxicated. The suspect was also wanted on several outstanding warrants, including one for an incident earlier in the year when the suspect exchanged gunfire with several Newark Officers.

Officer Lisojo had served with the Newark Police Department for eight years and is survived by his three children, and two brothers, one of who also serves with the Newark Police Department.

DontShootMe

July 2, 2003, 02:13 PM

Most people are for traffic law enforcement, just not when they are the one who gets stopped.

So true.

According to most of you, felons should NOT be allowed to have the full, unhindered 'rights' of a 'regular' person. Even after time served, right?

We are not far from the day when DUI/DWI's will be felonies. It will be lauded as a great idea and politicians can say they are really 'doing something' about DUI/DWI's.

We are not far from many friends and family having 'terrorist threats' on their arrest record (which is a charge that can be applied to a WHOLE lot more actions these days - look into it, it's getting broader every year)

Just a few more 'laws on the books' and nearly anyone at nearly anytime can have their life changed permanently and lose their human rights. And worse, those temporarily 'unaffected' by this loss will be ALL FOR IT.

It will only become 'outrageous' when it happens to your son, daughter, father, mother, or spouse.

I digress...

brownie0486

July 2, 2003, 02:31 PM

In Mass. if you refuse the breathalizer it is automatic suspension of your license, I believe for one year, first offense.

My take on RKBA and drinking and driving is:

People who drink and drive are irresponsible. In showing me they are irresponsible with keys [ to the ignition ] while intoxicated, I feel they should also not be allowed to carry a gun as well.

I know, I know, flame away, but before you do know this.

I have scraped families off the streets, some have died, due to drunks hitting them. A few pedestrians as well. Not a pretty sight and one thats pretty much unnecessary if the drunk was taken out of the equation.

If you are a CCW holder you really should not be drinking and carrying or driving. If I caught you doing one, then you probably can't be trusted with the other [ showing your irresponsibility in doing so ].

BTW--I don't drink. I like the taste of beer and drink the non-alcohol flavors when I want one [ rarely ].

I carry, I drive, but I would do neither while I was drinking.

Matter of fact, I really dislike people who drink to excess whether they get behind the wheel or not.

Prejudiced? You bet, See the 5th paragraph [ I don't like scraping kids off the road because some drunk didn't have enough common sense to not drive while doing so ].

If you lose your license in the state of Mass. due to alcohol abuse you lose your permit as well now. Would anyone have a problem if another was caught with smoking weed and driving, how about cocaine? It is exactly the same thing.

You become impaired and are potentially a killer on the road while drinking, smoking dope or snorting cocaine. You have no business having a permit to carry when you have shown such irresponsibility where your actions are concerned.

edited to add: I'm on the fence about whether you should get your permit back at anytime. I'm not totally convinced you should as I see too many repeat offenders with the booze.

Brownie

Tamara

July 2, 2003, 02:41 PM

You are missing the point.

I hate it for Mr. Lisojo and kin.

Apparently having a cop you don't personally know on the Officer Down page is reason for you to want to infringe my Fourth Amendment rights because someone illegally mixed bad judgement, alcohol and a motor vehicle.

Odd that I have a good friend on the Officer Down page, yet I have no desire to infringe your Second Amendment rights just because someone else illegally mixed evil intent, bad judgement and a .270 hunting rifle.

Stopping everyone on the road because one of them may have transgressed across an arbitrary BAC line is no more right than launching warrantless searches of every house on a street because one of them might contain a criminal. (The latter might, actually, be more productive, but no less evil.) If you see someone driving in a reckless fashion that endangers me, you, and Alcedo's next of kin, then by all means pull them over and charge them with driving under the influence of alcohol/marijuana/Benedryl/rank stupidity. Simply being on a particular stretch of pavement does not, however, confer probable cause, no matter what nine black-robed Gladys Kravitzes in some East Coast pesthole may say.

TheeBadOne

July 2, 2003, 03:21 PM

TheeBadOne,
You are missing the point.

I hate it for Mr. Lisojo and kin.

Apparently having a cop you don't personally know on the Officer Down page is reason for you to want to infringe my Fourth Amendment rights because someone illegally mixed bad judgement, alcohol and a motor vehicle.

Odd that I have a good friend on the Officer Down page, yet I have no desire to infringe your Second Amendment rights just because someone else illegally mixed evil intent, bad judgement and a .270 hunting rifle.

Stopping everyone on the road because one of them may have transgressed across an arbitrary BAC line is no more right than launching warrantless searches of every house on a street because one of them might contain a criminal. (The latter might, actually, be more productive, but no less evil.) If you see someone driving in a reckless fashion that endangers me, you, and Alcedo's next of kin, then by all means pull them over and charge them with driving under the influence of alcohol/marijuana/Benedryl/rank stupidity. Simply being on a particular stretch of pavement does not, however, confer probable cause, no matter what nine black-robed Gladys Kravitzes in some East Coast pesthole may say.
I don't have a clue how this is suppose to relate to any post I've made on this thread (nor do I know what your last paragraph has to do with this thread, period) :confused:

Monkeyleg

July 2, 2003, 06:35 PM

What we have here is failure to communicate.

BAC laws are like gun laws: you don't know who's broken one until you catch them. And, IMO, some people can handle two beers in an hour without effect, while others could have two sips and be dangerous. I also believe that individual officers have the ability and skill to discern between the two.

The Feds are engaging in extortion by denying states their own money for highways if the states don't toe the line on the .08 limit.

But, it gets worse. Our state government--even those legislators who proclaim to be for individual and states rights--have knuckled under to the federal government.

Today, the Democrat minority leader of our state senate said that he envisioned a day when there would be "zero tolerance" for any alcohol in drivers on our public highways. I'm sure that his comments reflect the views of MADD, a group that once was thoughtful and deliberate about what they wanted to achieve.

I know very well when I'm not functioning 100%, whether from alcohol, medication, illness or just lack of sleep. And I know what I can and cannot do while so impaired: drive, ride a motorcycle, handle a gun, take a photograph, or read the paper. Only the latter qualifies, since these days it doesn't require that much thought.

TheeBadOne

July 2, 2003, 06:55 PM

Good post MonkeyLeg.

I just want to add one thing. Some people on here have posted their "opinion", and that's fine. Some speak of seeing someone have a certain amount of alcohol and look and talk normal. When it comes to DUI none of that means a thing. Impairment means just that. You don't have to be stuck face first in the toilet bowl to be "impaired", or fall off a bar stool, or slur like a flushing urinal. You will become impaired in the operation of a motor vehicle long before your stomach rebels on you. The .10 (and now the .08) BAC are based on Scientific testing and study, not guesswork or likes/dislikes. MADD may push a hard cart, but without Scientific evidence they wouldn't be able to advance a thing.
In college I partook in a controlled drinking experiment. How did I do? Great as far as I was concerned (my memory of it). Watching the tape a week later the impairment was pointed out. (No, not falling down, not urinating in my pants, not puking, but motor skill/judgment impairment). The average Joe doesn't know what the Law is talking about when talking about Driving Under the Influence. Operating a motor vehicle is a complex task consisting of doing several things at once. That is why field sobriety examinations consist of "Divided Attention Tests". Are the tests rigged? You bet they are, drunks can't pass them. Driving requires you to maintain lane usage, speed, and situational awareness of other drivers and there position, and signage, all at the same time. The Divided Attention Tests measure your impairment to that. (right into it before someone jumps into it).
We all know Joe .20 who has sat at the bar every day for the last 20 years. He can go outside and get into his pickup and drive straight as an arrow to his house 10 blocks away. This is learned behavior and many can do this. What Joe cannot do, is respond to an emergency situation as he is impaired. If a car pulls out in front of Joe, or a kid runs out, or Joe gets a blow out.....he can't respond like he would sober.

12-34hom

July 2, 2003, 07:06 PM

I've made a career out of D.W.I. arrests i've made in the county i work in.

Damm proud of it.

There is no reason to drive impaired on any controlled substance = ever.

There are some who will bitch " don't you have anything better to do"? or some other lame comment.

No, saving lives is the most important thing any peace officer does in the line of his or her duty.

There are safe guards built into the D.W.I. laws as written and adopted by legislators here in the state i live in for those accused of D.W.I.

Iowa lowered its presumed level of impairment to .08 bac.

The vast majority of people are fed up with impaired drivers.

12-34hom.

SkunkApe

July 2, 2003, 07:17 PM

http://auto.consumerguide.com/auto/editorial/imho/index.cfm/act/opinion11

Truth: NHTSA's own highly questionable 2001 data shows clearly that targeting drivers in that low-BAC range is an egregious waste of resources. Less than 1.3% of 2001 fatalities involved a driver between .08 and .10 BAC vs. 12.4% at .15 or greater. Even the .00-.02 (trace level) range accounts for about 1.2% of fatalities. Should we target that group next? Don't ask. "Anyone with a modest understanding of this issue, and who is honest, " says NMA President Jim Baxter, "knows that drivers with low BACs such as .08% are no more likely to be involved in an accident than someone with a BAC of 0.0%."

This push to lower the legal limits for BAC is just more sissified, nanny state, I-know-whats-good-for-you junk, and a fine source of revenue for the state, to boot.

I am glad I'm old enough that I'll die before I see the day where I'm wearing a crash helmet inside my eight-air-bagged, breathalyzer-actuated, remotely-monitored transport vehicle.

For folks so adept at seeing through the anti-gunners propaganda, I suprised that more of you can't see through this.

Molon Labe

July 2, 2003, 07:31 PM

Excellent post, jsalcedo. But there’s one problem: If I refuse a breathalyzer test, my license will automatically be revoked for one year… :(

Monkeyleg

July 2, 2003, 11:03 PM

I certainly respect Lawdog and other LEO's opinions on this subject. After all, they're out there on the front lines seeing what the rest of us usually don't.

But what gives me pause are the usual statistics that are bandied about. For example, in WI the argument for a BAC of .08 was that 24 of the 350+ lives lost last year in traffic accidents could have been prevented with a .02 reduction in the legal BAC.

How do they know that those 24 lives could have been saved? Who are these 24 people and what was going on? Were they at .08, .09 or .10? What were the other circumstances surrounding the vehicular deaths?

We all know of the Kellerman "43 times more likely study," and its flaws. This "24 people" sounds suspiciously like a cooked study.

SkunkApe

July 2, 2003, 11:25 PM

...and the bright light of truth casts its glorious beam onto friend Monkeyleg's head.

Mr. James

July 3, 2003, 12:32 AM

The only comment for the many law-enforcement and EMT folks who've had the unenviable job of responding to the mayhem, is what was the BAC of the driver found culpable for the wreck. In disucssing the validity of .08 DWI limits, the question isn't how many you scraped off the pavement, or how many puked while under the eye of your dash-cam.

Forgive me, for I cannot pull up a cite for the study, dating from the early nineties, which found that most lethal drunk drivers (i.e., those who actually crossed the center line, wiped out the family in the crosswalk, etc., etc.) had a BAC of .20 or above. (And also had repeated DWI convictions).

This is not an endorsement of driving at .29, or .19. It is simply acknowledging that by constantly lowering the BAC ("zero tolerance," anyone?), we are acceding to a further erosion of our rights. And because the reason for the lowering isn't sound science, but the fed.govs extorting our money and then dictating the terms for parceling out a bit of it back to us...:barf: And, finally, when such a violation can permanently deprive one of his Second Amendment rights, "it's time to reach for a rifle."

For our LEO bretheren, just curious, because I'm not really a fan of drunk driving...what was the average BAC of drivers who were found responsible for DWI fatalities?

tiberius

July 3, 2003, 02:18 AM

what was the average BAC of drivers who were found responsible for DWI fatalities?

You also need standard deviation so that you can calculate the probabilites at BAC levels of interest. Average alone won't really tell you anything useful.

slacker

July 3, 2003, 04:51 AM

It seems that in Texas they may have more lenient DUI laws for young pretty women than the rest of the population. For example: in 1999 Paige Jones was charges with dui twice in 4 months. She was fined a total of $900 and served 3 days in jail. (plus 90 suspended days). http://www.thesmokinggun.com/archive/paigejones1.html

brownie0486

July 3, 2003, 07:36 AM

Slacker:
It certanly wasn't the officers' fault, they got her to the court and off the street.

Mr. James:
I had a fatal DUI whose BAC was 1.2, another that I remember that was 1.5

My own feeling is that .08 ought to be dropped to .04 or lower.
Why? Because drinking impairs and we don't need no stinkin impairs on the road.

If ya got to drink and drive, and I don't care how much you have had or what your BAC would be, you go with me if I catch you doing so.

The question posed should be something like, if we have a legal BAC that makes you a criminal [ meaning you can drink some and still drive legally ], how about smoking one joint instead of two, would that be accaptable?

How about 2 lines of coke instead of one? Should we allow illegal drug use to a certain level as well? Where does one draw the limit of impairment for any drug or booze? None, .02, .04, .08, 1.0?

I know drugs are illegal to begin with so it's apples to oranges in the comparison/questions above, however, it is relavant as to the legality of drinking anything and driving [ which is against the law after a certain limit ].

I don't feel people have the right to endanger my family, myself, or anyoe else and if they drink anything and then get behind the wheel, they get what they get if caught.

Certain prescription meds tell you not to drive when taken, would one be as guilty doing so and injuring others? Impairment is impairment, no matter what the level of official acceptance may be.

Brownie

SkunkApe

July 3, 2003, 08:23 AM

But, brownie, one man in an "impaired" state may still be a safer driver than another man sober. Its not a question being impaired or not, its a question of the point at which a driver can no longer safely operate a motor vehicle.

I'm quite sure I could ace my state's motor vehicle driving test after two or three beers. I doubt the little old lady at the end of my street could pass at all, drunk or sober.

How about we concentrate on stopping drivers who are actually driving dangerously, rather than stopping drivers with a blood chemistry that you don't like?

SkunkApe

July 3, 2003, 08:57 AM

Which reminds me of a joke:

A group of senior citizens were having breakfast at a Florida retirement home, when a man a the table said:

“Getting old sure is rough. My hands shake so bad I can barely hold on to my coffee cup without spilling it.”

Another man said:

“You think that’s bad? My eyesight is so poor now I can’t even see the coffee cup.”

A third man said:

“My memory is so bad I can’t remember where I put my coffee cup, and I just had it five minutes ago.”

A fourth man said: “Heck, I suffer from fainting spells, and passed out on my way to the coffee pot.”

A fifth man said:

“Well, look on the bright side. At least we can all still drive.”

TheeBadOne

July 3, 2003, 09:15 AM

But, brownie, one man in an "impaired" state may still be a safer driver than another man sober. Its not a question being impaired or not, its a question of the point at which a driver can no longer safely operate a motor vehicle.
Yes, it is a question of being impaired. It's silly to talk about one driver being a better driver than another. By that standard only 1 person should drive, the best in the world. It is your responsibility to be the best, safest driver YOU can be. If YOUR ability to operate is impaired YOU do NOT drive. It's as simple as that. No complexities needed. No rationalizations for driving with a load on. Simple common sense.

SkunkApe

July 3, 2003, 09:26 AM

Does being a little tired make me "impaired"?

When my right arm was in a sling, was I "impaired"?

My eyeglasses get dirty sometimes. Does that "impair" my driving ability?

One day I had a severe headache. Was I an "impaired" driver?

Its obvious that this is a question of degree, as some level of "impairement", regardless of the cause, is acceptable for safe driving.

TheeBadOne

July 3, 2003, 09:42 AM

Apples, oranges, and other fruits aside, DUI is not the same. Being tired does make you impaired. How do you measure it? DUI with drugs/alcohol can be scientificly measured and so it is. Perhaps someday they will be able to measure tiredness for impairment. For now alcohol/drugs impair to such an extent that it's easy to see/show impairment. Driving without prescription glasses is illegal, and so is having a dirty windshield. To my knowledge dirty glasses aren't an offense in my state. Physical handicaps can impair and often astute Doctors write this on paper for conditions that temp/perm limit driving capability. Bad headache, sure, can you tell me the test for it? Again, drugs/alcohol are easy to test and easy to show impairment. Driving careless/reckless for headache, tiredness? Guess you can get cited for careless/reckless driving.

SkunkApe

July 3, 2003, 10:06 AM

I have no objection whatsoever to be cited for careless or reckless driving, if I am in fact guilty of that offense, no matter what the cause.

I do have an objection to being cited for a certain BAC level while exhibiting no signs of poor driving.

Tamara

July 3, 2003, 10:13 AM

Of course, if you exhibited no signs of poor driving, then theoretically you shouldn't even get pulled over in the first place. ;)

tiberius

July 3, 2003, 10:17 AM

I'm strongy in the "reckless driving camp". While understand that it will make enforcement more difficult, reckless driving should be the ONLY driving violation, perhaps three degrees based on severity.

Many people are safer drivers with a .1% BAC than others are with a 0% BAC. As long as the driver meets a certain minumum ability, who cares how they got to that level of ability.

I lived in Palm Beach County Florida for six years, its not the drunks that scared me, its was the geriatrics. The same people who couldn't operate a voting ballot, are completely unsafe on the road.

I hope its safe to say that we are all STRONGLY AGAINST drunk driving, but someone should be judged by their actions, not by what they MIGHT do.

tiberius

July 3, 2003, 10:18 AM

Of course, if you exhibited no signs of poor driving, then theoretically you shouldn't even get pulled over in the first place.

Of course there are those "constitutionally acceptible" drunk driving road blocks where they check everyone now:mad:

SkunkApe

July 3, 2003, 10:55 AM

Of course, if you exhibited no signs of poor driving, then theoretically you shouldn't even get pulled over in the first place.

-Tamara

In addition to the roadblocks Tiberius mentioned, the armed tax collectors can also extract additional funds from the populace by hanging around bars at closing time and arbitrarily pulling over customers as they leave.

Tamara

July 3, 2003, 11:05 AM

You'll notice I said "theoretically".

A friend of mine once said:
"You know how they teach us to recognize a drunk driver in Midtown or Buckhead on a Friday night? If he drives slower than the speed limit, he's obviously drunk and afraid of running into stuff. If he drives exactly the speed limit and scrupulously obeys all traffic laws, he's obviously drunk and afraid of getting pulled over. If he drives way over the speed limit, he's obviously drunk and can't read the speed limit signs. For my money, your best bet is to pay a normal and healthy disregard for traffic laws; run about five over and forget to signal every third or fourth lane change or turn. You'll blend into the herd..." :D

tiberius

July 3, 2003, 11:15 AM

Of course, in Buckhead those are probably good guidlines:)

12-34hom

July 3, 2003, 02:36 PM

It never fails to amaze me the lenghts people will go to justify thier actions to make themselfs feel better about actions that are not only legally wrong but morally reprehensible as well.

Taking responsibility for ones actions is what part of acting like an adult is all about.

With firearms, while driving, etc...

In the state i live, CCW licenses are invalid when consuming ANY controlled substances. No need for impairment, just the use.

12-34hom.

spacemanspiff

July 3, 2003, 03:20 PM

tamara, could you explain your position on this topic in a little more detail? what about the 4th amendment is infringed?

SkunkApe

July 3, 2003, 03:47 PM

In the state i live, CCW licenses are invalid when consuming ANY controlled substances. No need for impairment, just the use. -12-34hom

Essentially the same here in Michigan (.02 BAC), and I strictly obey it.

However, I do wonder if a man who is so lacking is self-control and physical skills that he cannot trust himself to handle a weapon or drive a motor vehicle after consuming any amount of alcohol, is competent and trustworthy enough to employ those devices in any condition.

If your driving skills when sober are so close the borderline of being unsafe that a single drink puts you over the edge, I don't think I want you on the road with me at any time.

brownie0486

July 3, 2003, 04:47 PM

As to how you got pulled over to begin with---------

I didn't know you were legally drunk until you did something whiloe driving to give me a reasonable suspicion something was amiss.

I'm not, and I don't believe most are inclined to pull people over for the hell of it, and it's a safe bet the ones I used to catch were just a fraction of those who went by me who would have failed the BAC.

As to sitting at the bars at closing time, is there a problem with that? Am I not being prudent in determining that a place serving booze [ not a restaurant but a tavern or bar ] may have people leaving impaired at one time or another?

I always thought I was on the road to uphold the laws of the Commonwelth and keep the general public safe. If I sit down the road from a bar and surveille people leaving at closing to determine if they might be impaired due to where they have just been, I'm doing my job. I'm still going to need an articulatable reasonable suspicion that a crime is being comitted, has been committed or is about to be commited to stop you. I've followed many for a mile or two and no issues, then again I have also followed some who within 300 feet crossed the center line two or three times.

Lets ask this-----
"Joe" [ make believe perp ]is known to the dept. as a town drunk who is always at a certain bar on Friday nights. In patrolling the town I spot Joes car at the bar at 8pm. Patrolling shows that at 11:00 the car is still there. Same scenario at 1:15am, the car is still there. Now, the car has been there at least since 8pm that I'm aware of.

I see Joe leaving the bar, staggering to the car. He leaves the parking lot onto the main road. Can I pull him over? Whats the reasonable suspicion I have at that time? I know he was in a bar for 5 plus hours. I observed him impaired while walking to the car at 1:15am in the parking lot. I also know the man has a problem with substance abuse through previous encounters with him.

Got enough for you folks to pull him over? Whether you think so or not, I do. All I need be able to do is articulate a reasonable suspicion he is violating the laws of the state I work in. From the stop I will still need to develop probable cause for an arrest. I stop Joe, he smells of alcohol and I ask him to alight from his vehicle after he shuts off the ignition.

Think I might be able to show he's impaired? Was the stop valid? Some will not like this scenario, but I have stayed within the limits of my duties and have not violated Joes rights in the least.

Brownie

TheeBadOne

July 3, 2003, 05:02 PM

Police Blotter
Man charged withassaulting peace officer

07/03/2003

Staff report

Police charged a Denton man with aggravated assault on a peace officer Tuesday after he allegedly punched the officer repeatedly in the face.

The officer responded to a loud- music complaint at about 6 a.m. at an apartment complex in the 400 block of Audra Lane. She reported that she could hear loud music emanating from an apartment’s attached garage. She walked up to a car and tapped on the window. A man rolled down the window and asked what she wanted.

She told him the radio was too loud for the early hour, the officer reported. He responded with an obscenity. She could see beer cans littering the car and believed he was intoxicated, according to the police report.

The man told her he was drinking beer in his car and she couldn’t do anything about it, the officer reported. He told her to go away, and then he rolled up the car window. The officer called for another officer to help with the problem.

The man began honking his horn and rolling the window up and down and calling the officer names. He told her he would call his father to beat her up, according to the police report.

Then he got out of the car and advanced on the officer, despite her commands to stop. She sprayed him with pepper spray, which had no effect on him, the officer reported. He grabbed her throat and began punching her. She suffered a cut under one eye and a possible cracked eye socket, according to the report.

When the backup officer arrived, the two officers were able to subdue the man.

Miles Stephen Riley, 22, was in city jail Wednesday and could not be reached for comment.

lapidator

July 3, 2003, 05:16 PM

Its a real good thing that we have ThedBadOne on our side, otherwise he'd be claiming one bad gun-owner would be cause for "Zero-tolerance" for the rest of us. How about it? When will you begin posting stories about shootings and use them to roast the rest of gun-owners?
:confused:

Lapidator

SkunkApe

July 3, 2003, 05:26 PM

brownie,

Three things:

1) For way of clarification, I have never been charged with any alcohol-related offense. I have been speaking from a theroretical standpoint, not from first-hand experience. (I wasn't sure if that was clear.)

2) In the scenario you presented, I have no problem with you pulling Joe over, because you saw "Joe leaving the bar, staggering to the car". That is evidence of Joe being unable to safely operate a vehicle. Absent that single incident, though, I'd strongly disagree with your decision. Being pulled over strictly due to your location for the previous five hour period, in my mind, is NOT probable cause. I'd call it "police harassment" or "fishing for revenue", and I'd raise holy heck about it. I've seen police that were waiting outside a bar pull over a man I know to be a complete teetoler, obviously hoping to get lucky.

3) I don't have a problem with you personally enforcing the laws of your state. I do have probelms with some of the laws themselves.

4) I think police resources would be much better spent trying to catch murderers, rapists, and muggers than trying to catch me going ten over in a fifty-five or driving after a beer or three. Heck, I live less than ten miles from the Detroit city limits. Trouble is the benefit/risk formula pushes the police towards me. I have enough money to pay the fines, and I don't shoot back.

TheeBadOne

July 3, 2003, 05:33 PM

SkunkApe- RE: your #4, consider traffice deaths. Every year we lose the equivalent of what we lost during the entire Viet Nam war. Trying to reduce that number of deaths is quite worth while sir, and that's the whole point of traffice enforcement, safety.

Tamara

July 3, 2003, 06:49 PM

I'm all about safety. It's only when an obsession with safety gets carried so far as to infringe on rights that it becomes wrong.

See someone driving recklessly? Pull 'em over. No problem. I don't even have a real big problem with Johnny Law staking out a bar parking lot; if someone yaks on their shoes on the way to the car, it's a pretty good indication that he's going to ring the cherries on the ol' breathalyzer.

The only thing I really have a problem with is the DUI roadblock, actually.

On the topic of the thread, however (Remember the thread topic? I know I almost forgot it.): For someone to be forced to forfeit a basic constitutional right over what is, in essence, a jumped-up moving violation is simply inane. Of course, in MA, the RKBA isn't looked on as a basic Constitutional right. If someone who got a DUI was, say, prohibited from attending worship services or reading books, folks would be storming the Bastille over it. But prohibit somebody their Second Amendment rights, and then, eh, so what; it's not like they're in the National Guard or anything, what do they need a gun for? Obviously firearms ownership is rapidly becoming seen as a priviledge and not a right.

SkunkApe

July 3, 2003, 08:16 PM

Every year we lose the equivalent of what we lost during the entire Viet Nam war.

Thee BadOne, I'd like to know what percentage of those deaths were involved vehicles going ten mph or less over the speed limit, and what percentage were caused by drivers with a BAC of .10 or less.

TheeBadOne

July 3, 2003, 08:29 PM

The #1 and #2 factors involved in all crashes has remained consistent for years.

#1 Excessive speed

#2 Alcohol

brownie0486

July 3, 2003, 08:59 PM

SkunkApe:
I knew it was hypothetical.

Your statement: "Being pulled over strictly due to your location for the previous five hour period, in my mind, is NOT probable cause. I'd call it "police harassment" or "fishing for revenue", and I'd raise holy heck about it. I've seen police that were waiting outside a bar pull over a man I know to be a complete teetoler, obviously hoping to get lucky."

In my previous post, I mentioned that I had followed many who had not been pulled over after leaving a bar. I'm not looking for the teatoteler trying to get lucky. I had all the traffic I could handle and didn't have the time for such.

I don't need probable cause to stop, just a reasonable suspicion that a crime is being committed. If you drove erratically after leaving a bar, I had enough to make the stop. Many were no doubt not stoppped but that had they been under some guise of justice probably would have been spending the night or bailed to a relative or friend. You can't get them all and never will as the system is set up now. What you can do is reason that establishments which serve entertainment and booze are going to have people leaving over the legal limit to drive at the witching hour.

Is it entrapment? I don't think so. I'm an objective observer and make reasonable judgements based on my experience on the streets, my experience with people themselves, and reasonable conclusions based on the evidence.

I'm mandated to protect the general public, uphold the laws in my state and maintain order. Many people witness the same things I do relative people drinking until oblivious and driving afterward. They however, are not responsible for getting that danger off the road.

If I see someone driving in an erratic manner or a manner which brings about my attention, and then ignore the actions I am guilty of nonfeasance. If the party then goes down the road and kills someone I'm guilty of misfeasance and probably malfeasance as well. The civilian is not guilty of anything other than not being a good citizen and bringing the action to an officers attention. But thats a moral issue.

The laws don't protect me, they protect the law breakers. It's hard enough to get them into court and even harder to get them off the roads.

Brownie

SkunkApe

July 3, 2003, 09:11 PM

Brownie,

I think the only item on which we disagree is the level of BAC at which drivers become unsafe. You seem to think any level is dangerous, and I believe some people are perfectly capable of safely operating a vehicle after a few drinks.

I'm willing to leave it at that. Its been an interesting discussion. Thanks for keeping it civilized. I'm gonna go have a beer.

(...must...resist...urge...to make... donut...joke...)

LawDog

July 3, 2003, 09:19 PM

In 1994 the Texas Court of Criminal Appeals ruled that DWI checkpoints/roadblocks violate the Constitution of the State of Texas.

As of the last session of the Texas Legislature, this is till the case.
http://biz.yahoo.com/prnews/030530/daf030_1.html

Therefore, the Fourth Amendment/DWI checkpoint chest-thumping doesn't concern me, my county, or my state and I'll bow out in favour of others.

LawDog

12-34hom

July 4, 2003, 05:32 AM

I don't and never have or will stake out a tavern or bar to snag a DWI arrest.

There are enough impaired drivers out on the roads and highways to suit me.

If i saw someone " staggering to thier car" i would try and STOP them from entering thier vehicle.

If nothing else i could arrest them for public intox if that what it came to.

Thier are always alternatives....

12-34hom.

tiberius

July 4, 2003, 08:41 AM

If i saw someone " staggering to thier car" i would try and STOP them from entering thier vehicle

But then you wouldn't collect all that juicy revenue.:)

Hal

July 4, 2003, 08:58 AM

If ya got to drink and drive, and I don't care how much you have had or what your BAC would be, you go with me if I catch you doing so.
Nice attitude,,,

TheeBadOne

July 4, 2003, 10:23 AM

But then you wouldn't collect all that juicy revenue.
This is one fallacy about traffic law that I just love. In my jurisdicition the issuing agency doesn't get much of the fee. The fee is sliced up to the State, then the County, then the court district and library. The actual issuing agency gets a tiny portion, certainly not enough to justify "citing for the revenue".

brownie0486

July 4, 2003, 10:48 AM

A 50.00 ticket gets 20.00 to the town and 30.00 to the courts/state.

A 200.00 ticket brings 20.00 to the town, the rest divided between the courts, the state, and the insurance industry.

I used to give tickets for 50.00 that should have been 200.00. I wasn't in the business of making money for the state or insurance industry. When the tickets were challenged in court, they lost as I had already cut them a break on the ticket.

Hal, the attitude may not be to your liking but it's the one I carry with me after seeing people on the roads killing/maming/injuring others all too frequently.

Had a good cop friend lose both legs at a traffic stop when a drunk pinned him between his car and the stopped M/V. That could have been me, your father, your brother, take your pick. Drinking drivers present a menace to us all. And what makes it worse, I can't take an eye for an eye [ which I would really like to do on the spot ], so I stay within the law and grab em anytime I can. Take em off the street anyway I can, and save lives in the process. I feel real good about that to tell you the truth.

Brownie

TheeBadOne

July 4, 2003, 11:36 AM

agreed brownie

Hal

July 4, 2003, 12:05 PM

the attitude may not be to your liking
LOL!
Gee, ya think?!?

I'll give ya this though, at least you're up front about having a total disregard for the written law, and making it up as you go along.

In a weird way, I can respect that. (being up front about it that is)

tiberius

July 4, 2003, 02:34 PM

No offense to any LEOs out there, but the township just north of me (Southlake Texas) recently had a public debate about hiring more traffic police for the explicit purpose of increasing revenue. Of course, they also included remarks about it improving safety (and I'm confident that is true as well), but the purpose was to increase revenue for the general fund of the towns budget. I no longer have the data on hand but the article in the Dallas Morning News provided the complete breakdown of how much it costs to pay and equip an officer vs. how much revenue they could bring in from these traffic fines. They expected to net around $50,000 per new officer according to their figures. I do not believe that this is the only place to do to this, just maybe one of the few to discuss candidly.

I believe the following and they are not mutually exclusive:

1. Traffic enforcement IS important for public safety
2. Much of it IS about the money.

TheeBadOne

July 4, 2003, 03:18 PM

tiberius I'll expand on your points. The first thing is an old quote, source unknown.
Nothing improves one's driving as much as a traffic ticket
The point of a ticket is to discourage repeating the offense. If there was no consequence it would not work. Thus, points on your record, and/or money from your wallet.

brownie0486

July 4, 2003, 05:37 PM

Hal,

I didn't disregard the law at all, I used it the way it was written. I felt it was constraintive in nature, and consequently the remark about too many of them getting away as I didn't have an articulable reason to stop them.

Never grabbed someone on a stop who didn't give me reason to, thats the way the law is written and thats the way I enforced it. I firmly believe in the rights of others and honored their rights [ they are mine also ].

Too many people get the impression the police must lose all manner of reasoning and deduction when doing their job or they are being abusive somehow. Am I to ignore the fact drunks leave bars? Can a reasonable person come to a logical conclusion that at 1am [ bars closing ]there will be people leaving/driving from these establishments who should not be driving?

This was a pretty big issue once in the district I worked for. Seems the local VFW was a haven for one of the town fathers at the time and he got nailed driving home one night three sheets to the wind. Booked and printed like the rest of them that get hauled in for violating the law. Well, he was none too pleased to say the least. Made an issue out of it in court and here's the take o the outcome.

The officer observed him driving erratically upon leaving the bar. He had a reasonable suspicion the guy may have consumed alcohol as he had just left that establishment which served alcohol. The town father claimed he was setup as the cop had been watching patrons leaving and didn't just "happen" upon him on the road.

The officer was articulative in answering his attys: questions about how he observed the defendant, where, and why/what brought him to that location in the first place. The atty: asked if that wasn't entrapment by waiting across the way observing patrons leaving the bar. The officer answered "no", he was able to make a reasonable deduction that people ar bars were normally drinking and consequently he should be able to deduce from that fact, that some would be prone to driving while over the legal limit. He observed the town father drive in a manner that allowed the suspicion he may be intoxicated. Hence the stop.

The town father lost his license for 30 days [[ his first offense, actually more like the first time he had been caught ]]. In other words, the officers actions were upheld as reasonable.

As to roadblocks, they have been used in Mass. in the past. I think they violate everyones rights and do not agree with them. I feel it's indiscrimately searching for offenses vs. an officer using some reasoning to determine [ one at a time, and on it's own merits ] whether a crime has been been committed.

Brownie

Monkeyleg

July 4, 2003, 05:45 PM

"As to roadblocks, they have been used in Mass. in the past. I think they violate everyones rights and do not agree with them. I feel it's indiscrimately searching for offenses vs. an officer using some reasoning to determine [ one at a time, and on it's own merits ] whether a crime has been been committed."

Glad to hear that. It infuriates me that the Supremes have held that roadblocks do not violate the 4th.

brownie0486

July 4, 2003, 05:52 PM

Monkeyleg:

I personally feel it is a useless tool as well as unconstitutional.

About the only way it is useful is when it is advertised statewide that they will be used over a holiday weekend, then some may defer to a designated driver as they don;t want to take the chance of running into one.

Thats just my personal take on them though.

Brownie

Hal

July 6, 2003, 07:55 AM

Take em off the street anyway I can, and save lives in the process. I feel real good about that to tell you the truth. ,,uh, yeah,,most zealots feel that way. The end justifying the means, I mean.

Now, maybe you have some "second sight". or "instinct" or "years of experience" backing up your actions. I don't know you, so I can't even guess what methods you use, other than what you type here on an internet board,,,K? Fact is though, that the law says BAC of .08,,,not "Browines' guestimate".

These are you EXACT words:
"and I don't care how much you have had or what your BAC would be, "

You "don't care"? So what you're saying, is that you "don't care" what the facts are, just what you feel? (generally pretty "good" about it is what I reckon from your last post)

brownie0486

July 6, 2003, 10:25 AM

Hal:

Thats right Hal,
"I" personally don't care how much you have had to drink, get on the road and let me catch you and you are mine. Thats exactly what I said and you have reiterated here for everyone. No problem with my words at all sir, and I stand by them. I believe I have the right to feel that way, as you have the right to feel anyway you want on the subject.

Thats would be "my" feelings, now the courts say different and I worked within the system, never said I didn't. .08 is the limit in Mass. and thats when you were placed under arrest.

Under .08 and you were placed in protective custody for a minimum of 4 hours. No arrest, no record, but I didn't have to leave you on the roads to possibly kill/mame someone either. Thats why I stated I "take em off the streets anyway I can". The protective custody statute allowed me to do that for your safety, the general publics safety and my own safety.

What in my posts gave you the impression I was circumventing the laws as written? Oh, I see, that was some sort of assumption on your part right? Zealot?
I don't think so, just one man charged with enforcing the laws of the jurisdiction I worked in, and taking that mandate to the letter of the law.

"Browines' guestimate" ? Thats right, at the stop I could determine through experience you may have consumed alcohol and place you in the cruiser for a ride to the station. Then the breathalizer. Blow a .08 or more, you stay, get booked and make bail. Under .08, you were PC'ed. How else would an officer on the street initially make the determination you may be under the influence of alcohol after a stop resulting from a vehicular infraction? I'll tell you just so you know in the future.

You gain insight from years of dealing with people on the streets. Experience from years of stopping vehicles whose drivers had been drinking. Thats how. It is a guess that they may be over the limit at the stop. The field sobriety tests give an officer a "best guess" that you won't pass the BAC at the station. Thats how you get there to take the BAC test and determine if the evidence shows you need to stay awhile in lockup. When I made those determinations from the field sobriety testing it was literally "Browines' guestimate".

Any problem so far?

Brownie

SkunkApe

July 6, 2003, 11:17 AM

Brownie,

Let me make sure I understand this.

Suppose I'm eating lunch in a restaurant. You're eating lunch at the next table. You see me drink a single beer with lunch.

You'd follow me out to my car and hold me for four hours?

Hal

July 6, 2003, 11:45 AM

Skunk,

Evidently that's what the man believes. Sounds like he's made it his mission in life to bust anyone he "thinks" has been nipping.:fire:

brownie0486

July 6, 2003, 12:10 PM

Skunk:
Of course not with one beer. Then again, if you look impaired [ perhaps due to having a few before you got to the restauarant ], leaving the establishment and attempt to drive away, of course, if I'm in uniform. I would be inclined to speak with you in the lot before you got behind the wheel.

Out of uniform I'd call it in if you looked impaired.

Hal: "bust anyone he "thinks" has been nipping."
Did I say that? Or did you just come to that conclusion based on assumptions on your part?

As stated before and reiterated for you once more, if I have a reasonable suspicion you have been drinking I have the responsiblity to check it out and determine if you have indeed been "nipping", and then if the determination on the road indicates that you have, you go with me for testing. Thats the way it works Hal, whether you like it or not. And apparently you do not like it one bit from your posts. Thats too bad for you, but then you may not have a problem with it if you weren't possibly putting yourself in that position or had friends who put themselves in that position.

Alcohol is a major contributor to kills on the roads in the US with a M/V. Been "nipping"?, don't drive, it's really quite simple don't you think? It's against the law to consume alcohol and drive. The BAC limits are set by the state. Over a certain limit, arrested accordingly. Under that limit, you get PC'ed as you HAVE been drinking and caught driving. Don't like that framework? Good luck changing it. Do I have to PC you? No. It's my call as to whether you are a menace to yourself and others.

Don't like those actions by the officer on the street? Take it to court. With a blood alcohol of .04 you get PC'ed here. Course none of this would be discussed if people didn't " drink and drive" would it?

One more point here. I have had only two people pass the BAC at the station and then released while working for 9 years on two different depts. Guess those field observations are pretty acute after all those years dealing with the drunks on the road hey?

Brownie

tiberius

July 6, 2003, 12:45 PM

Guys,

Brownie already said that he doesn't approve of the road block approach. The people that he is talking about are those that he has pulled over of comitting driving infractions of some sort. It sounds to me (from his description anyway) that he is doing a good job and just the sort of thing that we should expect from our police.

.08 BAC may or may not be a reasonable limit for a drunk driving convivction, but that't not Brownies decision, his job is only to enforce the laws as fairly as he can.

brian0128

July 6, 2003, 04:40 PM

Here is some info from a lawyer in CA.....

Yes, the cop can arrest someone for DUI with a chemical test result of .05. I regularly use a toxicologist to testify in my DUI cases... he admits is is possible for someone to be "impaired" while under a .08%.

Remember... to prove a violation of §23152(a), the prosecution only has to show that you consumed alcohol and it affected you so that you cannot drive "with the prudence and caution characteristic of an unimpaired driver." (Approximate version of the jury instruction, from memory.)

That is why I advise people not to do the "roadside ballet" if there is any question in their mind whether they are impaired. You face harsher penalties if you refuse a chemical test, but you don't have to do the field sobriety "tests," which are more of a carnival game than a scientifically valid procedure.

There are also cases, especially in some of the rural areas where I practice, where it may be an hour or more before the cops actually get their suspect to a place where chemical tests can be administered. Sometimes the delay is even longer, because many sheriffs departments and agencies like park rangers will detain a DUI suspect and call CHP to perform field tests and arrest. Since the average burnoff rate for alcohol is about .02 per hour, a person could be a .10 when stopped but a .07 when taking a test 90 minutes later. (The Intoxilyzer is also subject to a margin of error of .02 percent, so it could be argued that dfrisco's BAC was as high as .07 when tested, possibly higher when driving).

By the same token, many people make a big mistake by telling the cop they "had a couple, two hours ago" when they really did a couple of shots just ten minutes ago. It is illegal to drive with BAC over .08... not to talk to a cop, or sit in a police car, or blow into a machine at the police station (unless you're so FUBARed that you're drunk in public). This gives way to the rising BAC (sometimes called "chug-a-lug") defense, with the argument that the BAC was actually lower at time of driving.

In California, many DUI cases are a "direct file," meaning the ticket is filed with the court before the District Attorney has an opportunity to review it. Sometimes the DA will offer a lesser offense like a "wet reckless" (reckless driving involving alcohol, Vehicle Code §23103/23103.5), but that isn't a whole lot better than a DUI -- usually saves you 48 hours in jail and a few hundred bucks on a first offense, but counts as a prior DUI conviction in future prosecutions and has about the same effect on your insurance rates.

tyme

July 7, 2003, 02:47 AM

Remember... to prove a violation of §23152(a), the prosecution only has to show that you consumed alcohol and it affected you so that you cannot drive "with the prudence and caution characteristic of an unimpaired driver." (Approximate version of the jury instruction, from memory.)
That's a problem. What percentage of drivers have "the prudence and caution characteristic of an unimpaired driver?" Impairment can result from lots of things - bad day at work, not getting enough sleep, talking on a cellphone, others' poor driving, or just about anything else.

I don't think driving while intoxicated is good, but that benchmark, or anything similar, is not reasonable. It would take 90% of people off the road. Maybe that would be useful, but I'm sure society in general would not think it so.

dustind

July 7, 2003, 04:33 AM

I hate how the fed.gov finds ways to control the states, such as taking the state's money and then giving some of it back only if the states do as they say.

I also hate the way a lot of the DUI enforcement is done, it ultimately hurts everyone's rights when you have bored cops sitting for hours on the side of the road with nothing to do. If you add to that police departments and cities getting a lot of the money back from tickets you end up with cops finding lots of violations.

In Minnesota I sometimes find a group of ten police cars sitting in the ditch on highway 169 waiting to hand out tickets and to go after drunks, lets just say that they are not as picky as some of the finer LEOs on this board when it comes to whom they pull over. There are a few cities where it seems that half of the police force is out writing tickets, and it seems to vary 100% by city. Myself, frinds, and family have been pulled over for the most rediculous things such as, "too much window tint" when we had factory untinted windows, "cars lowered" when it was 8 inches off the ground and 100% factory, etc. Before I got into gun rights I was into traffic laws. I have talked to countless LEOs, about ten sergeants, lawyers, prosecutors and many others about everything related to cars and traffic laws. We have a system that puts one person's word against another's, guilty until proven innocent, and in some places there is a lot of motivation for the police to write tickets.

SkunkApe: I guess I am now against MADD since they are lying in their statistics.
chaim, Bogie: I have heard way too many stories like yours, there are way too many bad cops out there, although most are good. If we could tape traffic stops it would help.
TheeBadOne: In a few of your posts you were using 100% pure emotion with no facts, the same could be said about normal driving, or guns...
Monkeyleg: Unless those 24 people were stopped and let go because they were not over the limit, which was not the case, the law would do nothing.

I am too tired to think now, but my point is that this system for DUIs and other traffic violations lacks balance, I wish we could tape traffic stops like the police do, but we can not without telling them. That sucks for the law abiding, and does not make sence if they are detaining us, it would be a different story if we came to them. I am against road blocks, but have no problem with someone being pulled over assuming they are driving recklessly.

Azrael256

July 7, 2003, 02:27 PM

I have had three field sobriety tests from the same MP. All three were given to me by a friend at my 21st birthday party to settle a contest (we had a clay shooting contest earlier that day, ran out of shells, and decided to finish with another "shooting contest"). After realizing, through the tequila-induced fog in my head, that the tests were completely rigged, I asked what the point was. He said that he already knows you're drunk if he gives you the test, it's just more footage to show in court... so I guess from a 5th amendment standpoint, don't take the test.

The fact is that it doesn't matter what you think about your own abilities. Please raise your hand if you have participated in a scientific study that measured your mental and physical capacity at varying BAC's... didn't think so. All of you who think that you can drive just fine after a given number of beers are guessing about something that can easily get you or somebody else killed. It is almost a proverb that drunks always think they're sober enough to drive. Well, for those of you who are fine after 3, 5, 7, 18, or however many beers you claim you can handle, do you actually drive after drinking that much? Maybe you've had a big meal, so you push it one or two beyond your usual? Do you, perhaps have a chart that tells you what your stomach contents will be X number of hours after eating various foods so you'll know whether or not you're effectively drinking on an empty stomach? You may think you're fine, but it is almost impossible for a person to evaluate their own capabilities at anything without an objective standard, and I'm guessing that you don't keep your neurologist handy to give you guidelines on the subject. I can down half a dozen beers after a hearty meal and still have use of most of my mental and physical facilities, but one pint of Guiness on an empty stomach will knock me on my butt. In either case, I don't have a clue how well I can handle a car.

As for me, it doesn't matter at all. If my car moves, then I'm the DD. You'll get free DrPepper all night at most bars for being the DD, and that's just fine with me. If I'm going out to drink, either we pick a DD, and then announce to the bartender upon entry that he is such, or we take a cab to the bar so that we have to take one home. It is $2.25 plus tip each way, so we figure $8-10 between four people is a whole lot cheaper than our moms getting a phone call to come ID our bodies... funny how my mom agrees on that issue. What usually happens, though, is that we take a cab no matter what. Even if we go to the bar and all drink Coke for a few hours, we've still just spent the last 12 hours in class and at work, so we're usually too tired to safely drive home by 2AM anyway. I know, college students taking responsibility for *anything* is truly astonishing, but it does happen occasionally.

You can argue the legalities of the DWI and DUI laws all you want, but the fact is that it's still a pretty darn good standard. Maybe someday we'll have some neato device that looks into your brain to see if you're impaired, or even a car with a "Drunk" button that will drive you home automatically. Until then, be smart about it and it won't matter.