Driving and the breathalyzer test?

[Steve in PA]

So the fact that your friend had been drinking should have been ignored, is that it?

Yeah, it sucked that your friend got t-boned. But the other driver was cited for it. What further action would you have wanted done

 

[jimpeel]

The fact was that he was driving within the law, with the exception of the prior restraint DUI statute, and was held to higher account than the person who caused the accident. He harmed noone, but if he had I would have been calling for his scalp.

We have all of these DUI laws but the rate of DUI hasn't decreased substantially. They have decreased the limit for DUI in many states and they will claim that more must be done when the rate of DUI increases as those who were formerly legal become illegal. That is how it works, you know. Create limits for people to meet and then decrease the limits to force them out of their former compliance.

DUI is not the only thing they have done this with. Look at EPA laws where they lowered the standards and included things -- "particulate matter"; or "dust" in laymen's language -- that were formerly not a concern.

It is about power. Pure unbridled power. That is what it has always been about and that's what it will always be about. POWER. They may call it "safety" or some other thing but it all comes back to power.

"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with."
- 'Atlas Shrugged' Ayn Rand 1957)

 

[LawDog]

We all talk about how the firearms laws are written in prior restraint and that if there is no actual crime we should not be hassled for having a firearm. Just because someone might harm someone with a firearm is no reason to hold us in prior restraint.

Drunk driving laws are also written in prior restraint because someone might hit someone and harm them.

Ah, no.

Driving While Intoxicated does not equal walking about with a holstered pistol.

Driving While Intoxicated equals setting up a target using your neighbors backyard as a backstop.

Just because you don't hit anyone having BBQ in your neighbors yard while winging 50 rounds past their ears does not mean you don't get snatched and thrown in jail.

Carrying a weapon in public is equivalent to driving a car under normal conditions.

Drawing your Beretta and shooting a couple of magazine at the pigeons fluttering about in front of the May Day parade is the equivalent to DWI.

I catch you dusting 30 rounds of 9mm through a parade, and I'm going to toss your butt into jail, whether you hit someone or not.

Being criminally stupid with a firearm is equivalent to the criminally stupid act of DWI, and people should be arrested for both.

LawDog

 

[RR]

This is great, we got "expert" LEOS giving advice on DUIs. The officer is not your friend, he/she is not giving you the opportunity to "prove that you are not impaired." Anybody really believe that.

Note that the poster referring to the HGN hasn't a clue. It is not convincing to a jury. Hocus pocus science. Standing on the side of the road with some cop waving a pen in front of your eyes while traffic headlights are passing. Juries don't like it, its not credible science.

Also, if it is a second offense, in many states they will take a blood sample regardless of whether you consent. The law will allow them to take it forcibly against your will and they will do so.

Note that some say NEVER incriminate yourself-do not give evidence that can be used to convict you. However, the refusal to do the field sobriety tests, combined with the universal LEO blather of "strong odor of intoxicants, has blood shot eyes, and slurred speech" is, in many states, and in front of many judges (note this is a judge decision not a jury decision), enough to establish probable cause for the arrest.

There are fact patterns where refusal to take tests helped (acquittals), and hurt (convictions). The key is to NOT have a situation where a test of your blood or breath that is substantially over the legal limit be admissible. Whether it be a lack of reasonable suspicion to stop the vehicle, or lack of probable cause for the arrest, or a refusal.

See a competent lawyer, and do not ask a cop. Better yet, don't drink and drive.

 

[deanf]

I've always figured that if you do wrong and get caught, don't whine about what happens.

That's fine. But in the unlikely event I'm charged with any crime, I'll certainly feel no obligation to assist the state with their prosecution. I don't care what I did, my primary concern will be my welfare.

"Victimless crime"

Tell that to the thousands of new orphans, widows, and widowers that are created every year.

Of course they are victims. But we're not speaking of vehicular assault, or vehicular homicide, or whatever you want to call it. We're speaking of DUI, and DUI only. Now perhaps our LEO friends could help us out and think back on the most recent conviction for DUI, and DUI only that they were involved in. I'm speaking of a case involving no personal injury or property damage. Could you LEOs please provide us with the name of the victim as identified in the report? Or perhaps just the victim's initials? Or just tell us a little about the victim. Please.

 

[jungleman]

We need laws but the way that these laws are implemented are pure bull????. You should be able to drink and drive just like you can eat a big mac and drive. If a person is eating a big mac and runs over a pedestrian he will get a slap on the hand. It was an accident. If you are drinking and run over a pedestrian you will get the book thrown at you. What is the difference? In both cases you killed a person. The crime should be that you killed a person in either case. It should make no difference how you killed him. People have to be responsible for their actions. That is something the courts have taken away.

 

[Steve in PA]

RR: Since your a recent expert on the scene, care to tel us which states allow blood to be taken forcibly???? I know PA isn't one of them.

deanf: The victim in a DUI (no accident, no injuries) is society in general, the general population. DUI laws are meant to keep idiots off the street who think they can drive better after a few hours at the local watering hole......people who are too drunk to have a rational brain process. People that don't know enough to call a friend or a taxi to take them home.

 

[Steve in PA]

jungleman: As soon as you can find, quote or even point us to a study that shows eating a big mac has a similar effect on your driving like alcohol or controlled substances let us know, ok.

Big Mac=Alcohol??

 

[Evil_Ed]

Steve, it's called driving while distracted. I ride a motorcycle and I see it all the time, some retard driving along with food in one hand and his cell phone in the other driving at 15 or 20 over the speed limit. I agree with Jungleman, the laws currently are very uneven and the punishment should be the same across the board whether you ran the guy over because you were drunk or whether it was because you were distracted by your cell phone/ Big Mac / Makeup / NEWSPAPER / etc.

 

[Steve in PA]

In PA its called Careless Driving, careless disregard for the sfaety of persons or property....PA VC 3714

So yeah, I can cite you for stuffing your face with a burger while driving with your knees.......picking your nose, etc......so what??

What does that have to do with DUI? I can prove that you were DUI....I can't prove that you just wolfed down a quarter ponder with cheese.

 

[Tall Man]

I can prove that you were DUI....I can't prove that you just wolfed down a quarter ponder with cheese.

Well, one should be able to prove what the recent additions to their gastrointestinal tract were. The mechanics of doing so would probably be unpleasant, however.

TM

(Guess which smiley would have appeared here?)

 

[Tierhog]

Every time I see a police officer doing FST in my town I am reassured that they are doing their jobs. And I feel safer. I don't care if you think you can "drive OK" when you drink. Who on this forum drinks on the range? If you went to the range and the guy next to you was sucking down a brewski what would you do? He's not hurting anybody...yet.

The answer is simple. Do not drive if you've been drinking. Period

 

[stevelyn]

In AK its called Implied Consent. In other words when you receive a drivers license from the state, by accepting that license you've given your permission to submit to a breath sample as a condition to operate a motor vehicle. Motor vehicle BTW includes boats snowmachines, ATVs etc. and they don't have to necessarily be operated on a roadway.
Of course probable cause criteria has to be met before a stop is initiated then things proceed from there. After talking to the driver and the officer feels through observation and the driver's actions they will be instructed to perform a standardized FST which include an HGN and a series of standardized physical tasks. This is done by a check list. If you pass then you will be sent on your merry way with maybe a ticket or a warning for you original infraction. If you don't you will be required to take a breath test. You can refuse, but you will be charged with Refusal which BTW carries the same penalties as the DUI. A conviction will be based on the series of events leading to the stop, officer observations, and whatever dumbass slurred statements you made which is going to be recorded on the micro-cassette for those of us too indigent to have video setups in our vehicles. For those caught in better equipped jurisdictions, you'll be shown in technicolor.
If you have drank to the point your driving is impaired, you are not in control of the vehicle. It's no different than waving a loaded gun into a crowd. You may get away with it and not hurt anyone, but what if..............

 

[deanf]

The victim in a DUI (no accident, no injuries) is society in general, the general population.

Your operating under the common misconception that the purpose of government is to protect society. That's wrong. The only purpose of government is to protect individual rights.

 

[answerguy]

I'm reminded of my unanswered earlier question:

In regards to 'implied consent' and an out of state license...
...if someone where to be pulled over for DUI in a state other than where his DL is issued can a LEO take away his DL on the spot?

 

[Powderman]

Note that the poster referring to the HGN hasn't a clue. It is not convincing to a jury. Hocus pocus science. Standing on the side of the road with some cop waving a pen in front of your eyes while traffic headlights are passing. Juries don't like it, its not credible science

Not credible? How so? Because some folks don't like the fact that if you're impaired you will NOT be able to pass this test, regardless of how much control you have over your own body?

Why are some of you insisting on your right to potentially kill someone with a motor vehicle?

If you think you are entitled to drive drunk, and you do, you also have NO business carrying a loaded gun.

And by the way, if juries DON'T like this test, then why are there so many arrests that stand on FST's? Yeah, you'll blow at the station on the Intoxilyzer--but you can be arrested on the results of the FST.

Oh, to answer another question that has come up on the board--go ahead and drive drunk in Washington State. Refuse to blow? Fine. We CAN take your blood at a local hospital. Go right ahead. And when your friendly neighborhood ER nurse draws it, I hope they use a big, square needle. Especially if you caused an accident or hit something.

IF YOU DRIVE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, YOU ARE A MORON. YOU HAVE NO RIGHT TO DRIVE. YOU ALSO SHOULD NOT OWN FIREARMS, OR EVEN BE AROUND THEM. PERIOD.

This is great, we got "expert" LEOS giving advice on DUIs. The officer is not your friend, he/she is not giving you the opportunity to "prove that you are not impaired." Anybody really believe that.

Oh, yeah, sure, you betcha. Tell that to the people I have watched stagger to a car, get in, start the engine up, and try to drive off--right in front of me.

What do I do? Hit the lights. If they have not hit any one--or are still in the lot, what do I do? Take a guess.

No, a lot of times they do NOT go to jail. If they yield immediately, I get them out of the car, chew their butt, and run their names. If they are clean, I get another officer to park their car, and I transport them home.

Yeah. You heard that right. I transport them HOME.

I then take them to their door IN HANDCUFFS, knock on the door, and watch them try to explain to their wife and or kids why daddy (or mommy, or son or daughter) is in handcuffs while Mr. Policeman is standing there.

I then tell them how close they came to being in SERIOUS financial trouble.

After that, I leave them at home.

The best result I have had was when I took a 20 y.o. home in cuffs.

He smelled like a distillery. Dad opened the door, saw him and asked what happened. I explained to the father.

Turns out his father was one of those defense attorneys who loved to take DUI cases.

Last I heard, he had not taken another case for DUI--and that was almost a year ago.

 

[moa]

Powderman, you are correct in that it is stupid to drink and drive and not just for reasons of getting arrested.

However, in my County the States Attorney (Doug Gansler) said on TV news that it is not illegal to drink and drive unless you meet that magic threshold of .08 BAC.

However, Gansler said that after one of his assistant prosecutors was busted for DUI, and it got in the news.

 

[RR]

Powderman, the "probable cause" standard for an arrest has been so eroded by our Courts-if the arresting officer can say the magic words, i.e., slurred speech, bloodshot eyes, unsteadiness, odor of intoxicants even in the absence of any field sobriety tests, the Court's will often find probable cause for the arrest. Note that whether there was probable cause for an arrest is a decision by a Judge who runs for reelection, and not a jury. LEOs exaggerate and embellish the facts in their reports and their testimony. You know it, I know it, and juries know it. Thank god we still have juries, who do not take what LEOs say at face value. They have self-interest at stake. Human nature.

Steve in PA wrote:

"RR: Since your a recent expert on the scene, care to tell us which states allow blood to be taken forcibly???? I know PA isn't one of them."

The Supremes said so, in Schmerber v. California. You may wish to check into PA law. In many states, a first offense is not criminal, therefore no forcible blood draw. However, if the offense is criminal (second or subsequent offense depending on the state), they are allowed to conduct a warrantless search (take your blood) because of exigent circumstances, i.e., the evidence is dissipating in the bloodstream.

 

[Powderman]

LEOs exaggerate and embellish the facts in their reports and their testimony. You know it, I know it, and juries know it.

Sir, I do not know you, nor you me. As such, I want to make it clear that I take offense at your statement, not at you.

The only thing that I have that I can call my own is my integrity. I was born with it inviolate; whether it remains so is up to me.

Integrity is priceless, and can not be sold or bought at any price. It must be GIVEN away by the owner.

And, once it has been lost, it can never be regained.

I do NOT exaggerate. I do NOT embellish. I especially do NOT do so when someone else's life, future, career and/or family hinges on what I do.

I still say that anyone who drives under the influence is a moron. However, I am well aware of the authority that is entrusted to me. I assure you, that even after almost seven years of doing this, I still take it VERY seriously.

If I have developed reasonable suspicion to stop--or probable cause for the traffic stop--I make sure that I am RIGHT. I do not stop for jacked-up bumpers, worn tread, or busted taillights alone. Nor does the occasional illegal lane change bother me. I have been behind people who have blown stop signs. A quick flash of the headlights does the trick. When they look in their rearview, I shake my head at them. They get the message.

On one of the roads through my jurisdiction, River Road between Tacoma and the City of Puyallup, I frequently encounter people driving up to 30 miles per hour over the speed limit. PC for a stop? You betcha.

But if it's 3 AM, and there is NO one else on the road, what's the point?

What do I do? I pace them for at least 1/2 mile. Then I pull up beside them. Most of the time, they do not notice until I pull slightly ahead, enough for them to see the markings or light bar. Then they slow down.

No, I do NOT embellish--or in other words, lie--about my cases. Ever.

Perhaps the best way to illustrate is the fact that over the last seven years, I have never lost a case, or had one dismissed.

Ever.

 

[jimpeel]

There was a time when the cops would simply lock up the drunk's car, pack them into the cruiser, and take them home. Now, every trip is to the pokey. That there is money to be made, in fines and levies, is not coincidental, but incidental, to this change.

 

[RR]

Powderman, I sure your honest. Your observations are subjective but it appears you take great pride in "being fair." I would bet that the vast majority of your arrests are not challenged. Unfortunately, in my opinion, your attitude is more the exception than the rule with respect to the cases are challenged.

If you have been in law enforcement for any length of time, you know that certain officers are constantly in court because their arrests are challenged. After a year or two, we know who they are. Every department has a few. Some departments have many.

While you take great pride in being fair, these officers take great pride in getting a conviction. For example, the arrest report indicates a "strong odor of intoxicants ad nauseaum, and dismal performance on the field sobriety tests. All of their arrest reports have the same language. The words "slight" "mild" or "moderate" are not in their vocabulary. Strange that all of his DUI arrestees have a "strong" odor of intoxicants and NO ONE every passes a field sobriety test.

 

[LawDog]

For example, the arrest report indicates a "strong odor of intoxicants ad nauseaum, and dismal performance on the field sobriety tests. All of their arrest reports have the same language. The words "slight" "mild" or "moderate" are not in their vocabulary. Strange that all of his DUI arrestees have a "strong" odor of intoxicants and NO ONE every passes a field sobriety test.

I don't know, maybe the arrest reports don't say anything about "slight", "mild" or "moderate" because the people who have a "mild" odour of alcohol don't get arrested?

Not arrested, no arrest report. Kind of logical to me, but what do I know?

By the same token, if you're going by arrest reports - and you don't indicate any different - the reason that no one in an arrest report passes a SFST, is just sorta maybe the ones that passed weren't arrested? Again, you don't get arrested, then there ain't an arrest report to look through.

*shrug*

LawDog

 

[RR]

Thank you Law Dog

Now for the fun part:

You got the arrest report, and the charge-DUI. A couple weeks later the blood test comes back from the lab .05-.08 or .08-.11. Wow, based on the officer's observations the arrestee was really tanked, but the blood tests do not bear this out.

You compare the officers arrest report with others where the blood test comes back .20-.30 and the officer report is identical-strong odor etc.

No surprise. Lie, embellish and exaggerate. You bet. Happen often. Absolutely. Expected. Routine.

But the officers on this board probably don't see any of this because they appear to pride themselves on being fair. But they know the officers I speak of, they are in every department, in every city, in every state, and you find them sitting in the courthouse hallways with a smug expression on their face waiting to be called to testify.

An officer who prides himself on getting a conviction vs. an officer who prides himself on being fair. One officer's cases are constantly being challenged and the other may go years without having to appear at a trial. Those who work in the system see alot of the former and rarely see the latter.

Yup, we should "trust" the officer pulling us over to be "fair and honest." I don't think so (unless its the guys on this board).

The point of all of this-this is one reason many "experts" advise NEVER to submit to field sobriety tests. The are too subjective and even if you do well you are relying on the officer to be truthful, which by no means is a given.

 

[Quartus]

BAC doesn't tell the whole story. I drink a glass of wine MAYBE a couple of times a week, and I can pass any BAC or breath test with ease.

But I can feel the impairment after one. After two, Lawdog could spot it. After three, he'll flunk me on an FST. Rightly so, because I won't be in any condition to drive.

But I'll STILL pass any blood or breath test.

Your operating under the common misconception that the purpose of government is to protect society. That's wrong. The only purpose of government is to protect individual rights.

Like the right to drive on a public highway without having to worry about the danger imposed by some selfish slob who thinks he has a right to drive drunk.

 

[Jeff White]

RR said;

You got the arrest report, and the charge-DUI. A couple weeks later the blood test comes back from the lab .05-.08 or .08-.11. Wow, based on the officer's observations the arrestee was really tanked, but the blood tests do not bear this out.

You compare the officers arrest report with others where the blood test comes back .20-.30 and the officer report is identical-strong odor etc.

That's why you use an intoxilizer or blood test. The initial observations of the suspect and FST are just probable cause to make the arrest. These are subjective observations. I've had people ext the bar reeking of alcohol yet blow a .03 on the PBT. So yes, it's quite possible to get the same observations on subjects who are and aren't legally intoxicated.

Then again, I have seen several suspects who almost weren't arrested because they did so well on the FSTs but blew a .26 to .29 so the door swings both ways.

Officers are human. They make mistakes. That's why we use intoxilizer and blood test results for convictions. There are exceptions, I once worked with an officer who was so good with the horizontal gaze nystigmas test that he could usually come within a point of what the breath test would read. But he's an exception....

Jeff