Driving and the breathalyzer test?

[megatronrules]

For the record I don't drink at all don't care for the taste of liquor. But I was just wondering something about breathalyzer tests and wether to take them or not. I live in Florida and I know by driving here you consent to any sobriity test and yada yada. My question is this as far as the the road side teasts I think these are a bad idea,I mean comon tilt me head back,close my eyes and touch my nose with the tip of my index fingers?,i can't do this sober for cryin our load.


My question is is there anything that a breathalyzer could mistake for alcohol in your blood? I know this may seem like a stupid question but since I never drink and have had to take one of these tests I'am just curious. I mean basicly if you don't blow your screwed and they take your license,now me I'd tell the LEO "look here I'am not taking those stupid roadside circus sobriity tests" "but officer I'd be happy to take a breathalyzer test" I mean seriously if I took those roadside tests I'd look drunk even though I'am not Basucly guys would saying that to a cop constitute refuseal to take a sobriity test? Thanks for any info.

 

[Fatcat]

Breathalyzer tests have always striken me as dubious, but they beat the tests where you recite the alphabet backwards while hopping on one foot.. (I think)

AFAIK, it will catch whatever alcohol happens to be on your breath, so anything like Listerine might set it off. I'm not quite sure what happens if you blow a false positive, but I can imagine..

 

[Preacherman]

Yes, some cough medicines and mouthwashes can set off a breath analysis device. That's why it's useful to carry a bottle of one of them in the car with you - "No, Officer, that's not booze you smell on my breath, it's for my lungs!"

 

[TarpleyG]

I can tell you from experience (I am good friends with lots of cops) that most cops know well before administering a breath-a-lyzer that someone is drunk or has had more than they should've.

Now, my take is that you should NEVER submit to one, especially if you have been drinking. Once you do, that's it. The longer you prolong blowing in that tube, the more alcohol gets out of your system. Just because it says you must submit to it on your DL doesn't mean they can force you to do it. It will be a whole lot less trouble later to restore your driving rights than to fight a DWI wrap. Never admit to drinking ANYTHING, not even "just one beer". That's all a cop needs to have PC to search the car, you, and ultimately arrest you. Stick to your guns, you have not been drinking, even if you are stumbling around. It is the government's job to PROVE that you are drunk. Don't prove it for them.

I don't condone drinking and driving but I also do not condone illegal searches and seizures and that little statement on your DL is just that.

GT

 

[Pilgrim]

Well, I suggest that before taking the advice of any stranger on this or other forum you study the laws of your state and decide, perhaps with the assistance of your attorney, what laws or procedures you plan to disobey should you be stopped.

Pilgrim

 

[Mikul]

Bear in mind that if you refuse a breathalyser test at the scene that the officer is within his rights to arrest you, take you into the police station and take a blood sample to check for a very accurate blood alcohol level.

All of these test are in violation of the 5th Amendment, which is why this issue is a hot one with many of us, but the ruling class sees things differently.

 

[megatronrules]

I see guys well like i said I don't drink(or smoke for that matter) at all (I know I'am really boreing) LOL But I do use listerine and other mouth wash that contain alcohol,I'am very concerned about these types of tests like I said when I started this thread. Basicly it says on my florida drivers license that I have to submit to the test simply because i drive on florida's roads and hold a drivers license issued by thair state. Come to think of it my Rhode Island drivers license diddn't say anything like this on it,come to think of it when I lived in mass. niether did that state's DL surprisingly enough

Anyways am I just dwelling on this or since I don't drink I probably won't be asked to take one anyways as one of you guys said If a cop asks you take a test like this he probablt smells alcohol on you and knows your drunk anyways. What I'am worried about is being asked if I'am not drunk and blowing and getting a false reading from as mention listerine for example if thats possible?

 

[Mike Irwin]

Chances are good if you're asked to take a sobriety test it's because you've been OBSERVED operating your vehicle in a manner inconsistent with sober, safe driving.

I know there's a lot of publicity about check points, but I'm pretty certian that something like over 70% of all DUI arrests that are made started with an officer seeing someone weaving, etc., or at least claiming to.

I also know that a lot of people claim that the test laws are a violation of Fifth Amendment rights. I don't agree, and as far as I know, no court has agreed, either. Of course, I've helped scrape up more than my fair share of people who have been injured and killed as a consequence of DUI, including a couple friends, so I have a slightly different view on the subject.

 

[k say]

a judge explained it to me once

driving is a privilege not a right

 

[deanf]

I live in Florida and I know by driving here you consent to any sobriity test and yada yada.

Make sure that's true where you live. In many states, implied consent only covers the BAC (the thing you blow in) back at the cop-shop, not roadside Field Sobriety Tests.

If your state's implied consent law only covers the BAC at the cop-shop, obviously you shouldn't be doing any FSTs (including blowing in the little portable tester) on the side of the road. You're only giving the state more evidence. They say by cooperating there's a good chance you'll clear yourself and be on your way. This, of course, is only a ruse to get you to give up evidence against yourself.

There are moves afoot in many states to close this so-called DWI loophole. Obviously, these efforts should be opposed.

 

[Hkmp5sd]

If the breathalyzer gives an erroneous reading and indicates you are drunk, demand an immediate blood sample be taken for analysis. Tell them you want two samples drawn, one for their lab and one for your lab of choice. If they refuse to allow this, you will have a powerful argument that you were innocent and they denied you the chance to prove it beyond all doubt. Otherwise, it is just your word against the machine & LEO, and you will lose.

Of course, this tactic only works if you are in fact, not drunk.

 

[deanf]

And of course it's tough to remember all this don't-do-this/do-that advice if you really are drunk.

 

[AZRickD]

Or, we can try torture.

Justification? They were enforcing the judge's warrant.

http://www.azstarnet.com/star/thu/3...E2fpmb-jmd.html

Man claims stun-gun abuse
Used to force blood draw in DUI arrest
By Joseph Barrios and L. Anne Newell
ARIZONA DAILY STAR

Chris Richards / Staff
Brian Sewell

A Tucsonan is filing a $500,000 claim against Pima County, saying sheriff's deputies tortured him with an electronic stun gun to force him to give a blood sample after a drunken-driving arrest.

The claim, sent Wednesday, is a precursor to a lawsuit - if the claim is rejected or if no response is given.

A deputy stopped Brian Sewell, 34, after seeing his car drift off a road in Avra Valley at 11:40 p.m. May 1, according to reports from the Pima County Sheriff's Department.

After Sewell refused to give a blood sample because he's afraid of needles, deputies obtained a search warrant and, after repeated warnings, administered three 50,000-volt Taser shocks to the back of his neck.

Michael Bloom, Sewell's lawyer, has asked a judge to dismiss the charges or repress the blood test results, arguing his client's blood was taken illegally through unreasonable search and seizure and that he was denied his due process rights.

But Deputy Steve Easton, a spokesman for the Pima County Sheriff's Department, said Sgt. Thomas Doubrava's use of the Taser was justified by Sewell's repeated resistance and threats against deputies and Doubrava's duty to gather enough evidence for a successful case.

Additionally, a case review conducted shortly after the incident cleared the sergeant - a nearly 20-year department veteran who turns 50 on Friday - of any wrongdoing, he said.

Sheriff's Department reports on the incident show Deputy Scott Woodworth noted Sewell's eyes were red and watery and slightly bloodshot and the man couldn't find his license, didn't know where his keys had gone and staggered as he walked, using his car to support himself.

The deputy called in a sergeant as backup and took Sewell to Northwest Medical Center.

"Mr. Sewell (said) that if he were unhandcuffed he would fight rather than let anyone do a blood draw," Doubrava wrote. " 'You're going to have to fight me, because I hate needles.' "

http://www.dailystar.com/dailystar/metro/5671.php

Section: Tucson Region
County to drop case in Taser DUI arrest

Misdemeanor DUI charges will be dropped against a man who said sheriff's deputies used an electronic stun gun to force him to give a blood sample after a drunken-driving arrest.

 

[AZRickD]

Driving a car is a privilege, eh?

I think I stole this from TFL and saved it to disk.

"Where then, does this theory come from that "driving is a privilege"?
"... for while a citizen has the RIGHT to travel upon the public
highways and to transport his property thereon, the Right does not extend, in whole or in part, AS A PLACE OF BUSINESS FOR PRIVATE GAIN. For the latter purpose, no person has a vested right to use the highways of the state, BUT AS A MERE PRIVILEGE OR LICENSE which the Legislature may grant or withhold at its discretion..." (emph. added) STATE v JOHNSON, 75 Mont. 240, 243 P 1073; HADFIELD v LUNDIN, supra; CUMMINS v JONES, 79 Ore 276, 155 P 171;PACKARD v BANTON 44 S. Ct 257, 264 US 140, 68 L. ED 598; and cases to numerous to list. '

also

"The RIGHT of the citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business IS A COMMON RIGHT which he has under the Right to enjoy life, liberty, to acquire and possess property, and to pursue happiness and safety. IT INCLUDES THE RIGHT, in so doing, TO USE THE ORDINARY AND USUAL CONVEYANCES OF THE DAY and under the existing modes of travel, INCLUDES THE RIGHT...TO OPERATE AN AUTOMOBILE THEREON, for the usual and ordinary purposes of life and business." (emph. added) TECHE LINES v DANFORTH, 12 So. 2d 784; THOMPSON v SMITH, supra."

and

"The Right of the citizen to travel upon the highway and to transport his property thereon, in the ordinary course of life and business, DIFFERS RADICALLY AND OBVIOUSLY from one who makes the highway his place of business and uses it for private gain... The FORMER IS THE USUAL AND ORDINARY RIGHT OF THE CITIZEN, A RIGHT COMMON TO ALL, while the latter is special, unusual, and extraordinary." (emp.added) EX PARTE DICKEY (DICKEY v DAVIS), 76 W.Va 576, 85 SE 781 (cited by Washington decisions) (See also TECHE LINES v DANFORTH, supra, and THOMPSON v SMITH, supra)."

The distinction between a "RIGHT" to use the public highways and a "privilege" to use the public highways, is drawn upon the line of "using the public highways as a place of business." Various state courts have held that his is so, including this Court! But what have the Federal Courts held on this point?

"First, IT IS WELL ESTABLISHED LAW that the highways of the state
are public PROPERTY, that their primary and preferred use is FOR PRIVATE PURPOSES, and that their use for PURPOSES OF GAIN is special and extraordinary which, generally at least, the legislature can prohibit or condition as it sees fit." (emph. added)
STEPHENSON v BINFORD, 287 US 251, 77 L. Ed 288, 53 S. CT. 181, 87 ALR 721, 727; PACKARD v BANTON, 264 US 140, 144, 68 L. Ed 596, 607, 44 S. Ct. 257 and cases cited; FROST 7 F. TRUCKING CO. v R.R. COMM., 271 US 583, 592, 70 L.Ed 1101, 1104, 47 ALR 457, 46 S. Ct. 605.

"(The roads)... are constructed and maintained at public expense, and no person, therefore, can insist that he has, or may acquire, a vested right to their use in CARRYING ON A COMMERCIAL BUSINESS." (emph. added.)
EX PARTE STERLING, 53 SW 2d 294; BARNEY v R.R. COMM'RS, 17 P. 2d 82;
STEPHENSON v BINFORD, supra.

"The use of the highways of the state FOR PURPOSES OF GAIN is special and extraordinary, and may generally be prohibited or conditioned by the egislature as it sees fit." (emph. added)
STEPHENSON v BINFOR, SUPRA; R.R. COMMISSION v INTER-CITY FORWARDING
Co., 57 SW. 2d 290; PARLETT COOPERATIVE v TIDEWATER LINES, 165 A. 313.

"When the public highways are made the PLACE OF BUSINESS the state has a right to regulate their use in the interest of safety and convenience of the public as well as the preservation of the highways." (emphasis added) BARNEY v R.R. COMM'RS., supra.

"Its (the state's) right to regulate such use IS BASED UPON THE NATURE OF THE BUSINESS and the use of the highways IN CONNECTION HEREWITH." (emph added) Ibid.

"We know of no inherent right in one to use the highways FOR COMMERCIAL PURPOSES. The highways are primarily for the use of the public, and in the interest of the public, the state may prohibit or regulate... the use of the highways FOR GAIN." (emph. added) ROBERTSON v DEPARTMENT OF PUBLIC WORKS, 180 Wn. 133, 135.

If the citizen does not have a COMMON RIGHT to use the public highways (as is decided in SPOKANE v PORT, supra) it appears that the various courts, including this Court , have wasted an enormous amount of time drawing the "distinction" which Division III of the Court of Appeal has decided, DOES NOT EXIT!

"As used here, "privilege" means a qualified right or a particular advantage enjoyed by a class, BEYOND THE COMMON ADVANTAGE OF OTHER CITIZENS..." (emph. added)
SPOKANE v PORT, _____ Wn. App.____, ______, P. 2d____(1986).
(Compare with STATE v CITY OF SPOKANE, supra: "a COMMON RIGHT...)

It would appear more reasonable to conclude that Division III had
erred in it recent decision and that the "distinction" does, indeed,
exist.

It should be noted, that previous to the SPOKANE v PORT decision, research had not turned up one case or authority acknowledging the state's power to convert the individual's "RIGHT" to travel upon the public highways, into a "privilege".

It would appear that there should be considerable authority on a subject as important as this serious deprivation of LIBERTY, of individuals using the public in the ordinary course of life and business. Simply put, research shows that this power does NOT EXIST-- THE POWER IS DENIED!

Therefore, we must conclude, in the absence of any authority to the contrary, that the citizen DOES HAVE A RIGHT to TRAVEL and TRANSPORT HIS PROPERTY ( HADFIELD v LUNDIN, supra --Wash. S. Ct.), BY AUTOMOBILE (THOMPSON v SMITH, supra --US S. Ct.; TECHE LINES v DANFORTH, supra), UPON the PUBLIC HIGHWAYS (HADFIELD v LUNDIN, supra-- Wash. S.,Ct) and that this RIGHT IS A COMMON RIGHT, COMMON TO ALL (STATE v CITY OF SPOKANE, supra-- Wash. S. Ct.).

 

[jimpeel]

There was a famous case where a Los Angeles City Councilman ot County Commisionaer got off on a breathalyzer test because -- and I am not making this up -- he belched as he was blowing into the mouthpiece. In court he testified that he distinctly remembered belching as he did this. Since the concentration of alcohol fumes is much greater in the stomach than in the lungs, he used this as his excuse as to why the result was over the limit for drunk driving.

He was found not guilty.

 

[Ryder]

is there anything that a breathalyzer could mistake for alcohol in your blood?

I've read that there is something about the way sugars are processed in the body of a diabetic person which register false positives on breathalizers. This would show in the blood test as well. Diabetics are regularly mistaken for drunken drivers.

 

[XLMiguel]

Unless you gargle with mouthwash just before you blow, I don't think mouthwash is going to cause you much of a problem.

I have a friend who is asmatic and had just used his inhaler before pulling out of a hotel where we had been meeting. It was close to midnight on a Friday and the hotel has a popular club and the cops like to camp out where the 'fishing' is good and he got popped literally 2 minutes after using the inhaler.

Though he had had a glass of wine with the snacks server at the end of the meeting, and he's a big guy (200#+), he was hardly impaired. Apparently the vehicle in the inhaler had enough alcohol in it to cause him to blow a .13 (limit in VA is .08), and he ended up spending over $2000 on an expert witness to beat the ticket.

 

[KenW.]

as a LEO and intoxilyzer operator, let me tell you this: no one still uses the breathilyzer. I think the last of them are in museums. that's '50s technology. The intoxilyzer 5000 is the current standard. It recognizes mouth alcohol and disregards it. same for the acetone odor of the diabetic's breath.

Also, in most states the choice of test is up to the officer, not the violator. I could require blood, breath or urine, or all three. in the cases when we suspect it may be DUI with Drugs, we'd request a blood sample, otherwise, its normally breath. if you insist on a private blood test, you are welcome to have one once you are released from the incident. It will be at your own expense and you may not be able to admit it in court. There is a chain of evidence issue that will have to be proved, and the person who draws the blood could be subpeoned to testify that you were in fact the one to give the sample. If the test is too long after the arrest, there are mathamatical formulas for determning what the blood alcohol level was at the time of arrest. the average person burns off alcohol at the rate of 0.005 per hour.

You are correct; you do not have to submit a breath sample. Your DL will be revoked for a certain time period. that's up to you. An officer cannot forcibly have blood drawn from you. for that, a warrant is required. all we can do is ask that you provide the sample.

Most people who refuse to perform the FSTs do so by condemning themselves, often saying " I couldn't do that sober" or "I'm too drunk to do that!". If you refuse to perform the tests, the prosecutor's office may prefer charges against you for interfering with an investigation, since SFTs are part of the investigation into the possible offense. You can tell the judge you chose not to incriminate yourself, by performing the tests, but that does sound kind of incrimatory itself, doesn't it? SFTs are your chance to shine, prove to the officer that you are not as intoxicated as he thinks you are.

More often than not, your driving pattern has been captured on videotape prior to the traffic stop.

If you drive while under the influence, best of luck to you, I hope you don't kill anyone, even yourself.

 

[deanf]

You can tell the judge you chose not to incriminate yourself, by performing the tests, but that does sound kind of incrimatory itself, doesn't it?

I certainly does, but the judge or the jury aren't allowed to consider your refusal to provide evidence to the state as an indicator of guilt.

If you refuse to perform the tests, the prosecutor's office may prefer charges against you for interfering with an investigation, since SFTs are part of the investigation into the possible offense.

So are questions about where/how much/what type/when in regards to alcohol. But we're free to not answer these questions, yes? Without fear of malicious prosecution. One would hope so. Has anyone actually heard of a case of "interfering with an investigation" being brought against someone who refused FSTs?

 

[jimpeel]

If you refuse to perform the tests, the prosecutor's office may prefer charges against you for interfering with an investigation, since SFTs are part of the investigation into the possible offense.

Sounds like an act of desperation on the part of the prosecutor to "get" you for something.

Is refusing to give evidence against yourself also interfering with an investigation?

The laws are getting a bit too weird in the U.S. Martha Stewart is being tried for lying and the lie she told was "I didn't do it". They are going after her for attempting to impede their investigation by starting a webpage where she says "I didn't do it."

It seems that the only acceptable "truth" is a full confession for the crime; even if you are lying about having committed it.

Welcome to Amedika, Comrade!"

 

[answerguy]

I have a friend who is asmatic and had just used his inhaler before pulling out of a hotel where we had been meeting. It was close to midnight on a Friday and the hotel has a popular club and the cops like to camp out where the 'fishing' is good and he got popped literally 2 minutes after using the inhaler.

I have a little problem with his story. If he used the inhaler just before leaving the bar and he got pulled over immediately upon leaving it would be at least twenty minutes before the breath check was performed.

 

[answerguy]

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?

 

[Steve in PA]

This is a copy of my posting over on GT.

Bravo, a couple of years ago my dept hosted a certification class on PBTs, specifically the Alco-Sensor IV/RBT-IV.....heres a couple of snippets from some of the manuals;

The Alco-Sensor IV/RBT-IV is a hand held fuel cell evidentiary breath
instrument which tets the subjects blood alcohol concentration by analyzing a small (one cubic centimeter) deep lung breath sample introduced by having the subject blow through a mouthpiece inserted into the instrument.

The measurement of blood alcohol concentration using the analysis of an expired breath sample is based on the universally recognized scientific principle of Henry's Law (When the water solution of a somewhat volatile chemical compound is brought to equilibrium with air, there is a fixed ratio between the concentration of the compound in the air and its concentration in the water, and this ratio is constant for a given temperature and atmospheric pressure. )

Under normal respiration, at normal body temperature, an equilibrium is established between the alcohol in the blood stream and the alcohol in the alveolar sacs of the lungs where gases transfer between the liquid blood and the breath drawn into the lungs. Henry's Law verifies that an accurate measurement of the alcohol present in the blood can be determined by means of an accurate measurement of the alcohol from expired alveolar breath. The proper use of a special fuel cell can measure the alcohol present in an expired breath sample.

The fuel cell inside of the Alco-Sensor IV is composed of a very small chamber containing a porous disk. The porous disk is coated on both sides with a thin layer of platinum black , and is saturated with an electrolyte . Alcohol coming in contact with the platinum black is oxidized into acetic acid . This process releases electrons forming an electric signal . An analysis of this signal accurately determines the amount of alcohol present .

Scientific studies have determined that alcohol is the only known substance found in the breath of a human after the oral cavity has been properly isolated from contamination for 15 minutes, that reacts with the fuel cell.


Phhhhhh......thats alot of typing.


__________________
Steve

PBT

 

[Steve in PA]

Mikul: "Bear in mind that if you refuse a breathalyser test at the scene that the officer is within his rights to arrest you, take you into the police station and take a blood sample to check for a very accurate blood alcohol level."

Um, just where are you getting this info? A refusal is a refusal. You'll be taken to the hospital or DUI Processing Center (regional or department) and given one more opportunity to submit to the test. Refuse and in PA your DL will automatically be suspended for a year.

Police Stations/Departments/Officers don't draw blood.

 

[Steve in PA]

Any rookie LEO would know not to allow someone to belch/burp while taking a breath test.