Do the “tests” given on the side of the road to determine DUI arrests violate a person’s rights? Does the fact that the officer does not tell you the facts (like the tests are voluntary) make it unconstitutional? I understand if a person is so drunk they can’t stand by themselves, but to the coherent person charged with that serious of offense, shouldn’t the options be out in the open? People’s lives could be ruined by a DUI conviction, but hell, the officer is standing there on the side of the road trying to coerce you into “blowing.” Any thoughts?
I don’t have the background to give a thorough analysis of this, but here’s some quick thoughts:
[ul][li]Legally, driving is a privilege, not a right. I realize that’s not what you asked, but it’s significant to what follows.In some (most? all?) states, you are not obligated to take a DUI test. Such obligation would constitute self-incrimination if DUI is illegal.However, some (most? all?) states have made refusal to take such a test a separate violation of their traffic (not penal) laws, punishable by suspension or revocation of one’s driving privilege.I believe most police departments have the policy to fit the legal notifications to what the suspect is capable at present of understanding. I.e., they would explain the right to refuse the test and what it would entail to the coherent but possibly intoxicated person and not get into those nuances with the guy who is clearly falling-down drunk.[/ul][/li]Anybody with more knowledge or experience on the subject care to expand on this?
Yup, that’s the way it works in Ohio.
“The problem with the world is that everyone is a few drinks behind.” - Humphrey Bogart
Here in Canuck land (Canada - it’s north of the border, go look at a map) the programs exist only at high incident times _ Christmas, New Years, Thanksgiving etc… and therefore they can use the festivity of the time as probable cause in order to make you blkow. And yes, it is a very serious offence o refuse to blow.
If you can’t dazzle them with brilliance, baffle them with bullshit.
If you need a graphic solution, http:\ alk.to\Piglet
The legal theory is that driving a car on the public highway implicitly gives consent to be tested for alcohol. (RCW 46.20.308, 'round here).
It’s important that you have to be under arrest for suspicion of DUI for the officer to request the breath test. Your consent is unnecessary if there’s been an accident. It’s morbidly funny that if you can’t give consent (including if you’re dead) then you’re deemed to have given consent.
Legally, the Fifth Amendment doesn’t protect you in this instance; you’re not being required by a criminal court to testify against yourself. The penalty is civil; suspension of license. Your refusal is admissible evidence, same as an invocation of the 5th Amendment is admissible evidence in any criminal trial.
In Washington, anyhow, the suspicion of DUI must be made by the arresting officer based on alcohol odor, driving behavior, speech pattern, etc. The officer can’t pull you over (i.e. roadblock) and make you blow as a matter of routine to see if your blood exceeds the magic 0.08 %. He must arrest you on other grounds first.
Probably it’s different for you serfs north of the 49th. RCMP sets up roadblocks all the time. My favorite was located just beyond a bend in the highway. They placed a cruiser in the woods near the bend to catch those who pulled U-turns. The “Special Occasion” for the roadblock ? The Stanley Cup finals !
My advice? Drink within stumbling distance from home.
“It ain’t no sin to be glad you’re alive”
My friend, Greg, was pulled over at one of those July 4th roadblocks. He had been attending his brother’s wedding and was driving his brother’s car home b/c the bride and groom were leaving in a limo. Anyway, he gets to the roadblock, and the officer asks him to roll down his window. Well, being in an unfamiliar car, he started fumbling around in the dark car, trying to locate the window button. The officer, thinking he was tanked, asks him sternly to get out of the car, please. He said, "Yes, sir, but then he couldn’t find the car lock!
Needless to say, Greg (when he eventually got out of the car) was thrilled having to do all those stunts (like taking your hand way out, then placing it on your nose) in the dark, with all those lights flashing. He wasn’t drunk, and he passed all the tests, but they made him take a breathalyzer anyway. He passed.
I still get tickled thinking of him trying to find an electronic window button, when here it was a cranking one. It’s a funny story if it wasn’t YOU walking the line.
I will check this out with my brother-in-law, who is a law professor; but my understanding (non-professional) is that if you’re “caught in the act”, the police don’t need a search warrant.
For instance, if the police just stop you on the street and say they want to search you, you can say no, not without a warrant. However, if you were waving a gun around and threatening to shoot someone, the police could disarm you, and search you for other weapons, without the need of waiting to get a warrant.
My guess is that the drunk driving is similar. If you are driving in a way that arouses suspicion that you have broken the law (by DUI), the police can search you there and then, without need of a license.
I’m always reading of drug busts made because the police stop a car for some reason (weaving from side to side of the road, whatever) and find the driver intoxicated and the trunk full of illegal drugs. The cops didn’t need to get a warrant to search the car under those circumstances.
OK, my brother-in-law the law professor says that it varies a little by state.
First, taking an breathalyzer test is like being fingerprinted. Fifth Amendment doesn’t come into play because you’re not giving testimony.
Second, the cops stop you on suspicion. They request that you comply with their tests; technically, you don’t have to. If you comply voluntarily, it’s easier.
If you don’t choose to comply, they have various means at their disposal (again, varying by state):
- The refusal to comply adds to their suspicious grounds, and they can arrest you. Then they can compel you (just like they can fingerprint you when you’re arrested). Or they can haul you to the magistrate who signs the order compelling.
- In some states, they can impound your driver’s license. That leaves you stranded, since if you start to drive home they can arrest you for driving without a license. You get put to a lot of bother, and it’s easier to take their breath-test.
gordo12, what state and/or what country?
In the USA it varies by state. At amazon.com, you can find a lot of books on this law based by state.
Also, if a person is like real drunk, they can throw them in the squad car without as much as a word.
I wonder how many cops are making bus-bench attorneys rich by screwing up a simple procedure.
In both states I’ve researched (Washington and Ohio), you must be under arrest for suspicion of DUI before a breath test can be administered. Ohio even has a formula the arresting officer must recite, just like Miranda:
“You now are under arrest for operating a vehicle while under the influence of alcohol, a drug of abuse, or both
alcohol and a drug of abuse and will be requested by a police officer to submit to a chemical test to determine the
concentration of alcohol, drugs of abuse, or alcohol and drugs of abuse in your blood, breath, or urine.”
At that point if you say “Eat it, pig” you lose your license and get to go to jail to be properly prosecuted like the drunken scum you are.
However, if the officer has you do a couple of touch-the-nose and walk-the-lines, and follows it up with “now you have to blow in this tube or else”, any shark worth his shingle can get your case dismissed.
If you (still un-arrested) refuse to take a breathalyzer and the arresting officer confiscates your license and waits for you to try to drive away, well, he’s headed for a little police academy refresher, I’d say.
It occurs to be that the OP was maybe just about roadside sobriety tests, not breathalyzers. Those I agree are legally like fingerprinting; you’re not giving testimony, ergo no 5th Amendment protection.
Any judge who would dismiss a breathalyzer test, because the suspect was too drunk to give informed consent, needs to find a new line of work.
I’m afraid I know all too well the procedures on the side of the road. But like most people, I don’t read up on DUI test procedures, especially before going on a date and getting pulled on the way home. Believe you me, you will NOT be informed of your choices on the side of the road. I had to get “curt” with the officer after he shoved the pipe in my face for about the 6th time. I knew I had the right not to blow. My question from above may have been misleading or not clear:
IS THE “BREATHALYZER” ACCURATE ENOUGH FOR SOMEONE WHO IS NOT "HAMMERED, WASTED, ETC.?
I refused because me and the lady friend had drinks and talked. Were the drinks gone from the system? Had I waited the exact time to be “legally sober?” On the side of the road, you don’t have the answers to these questions. I did well on the FBT and was hauled to the clink. I haven’t been out with the girl since I might add.
Another angle in getting out of a DUI when you’ve had to “blow” is attacking the accuracy of the Breathalyzer. If the police department has not kept up with the maintanance and daily testing procedures, and kept accurate records of same, you can usually destroy the breathalyzer evidence by making the officer prove its authenticity by laying a proper foundation for admission as scientific evidence. Most State’s attorneys are ill-equipped to face such a challenge, and its been my experience that most departments have missed something in the maintenance or documentation for its breath alcohol machines.
I’ve been out of the DUI loop for many years, but I was the editor for an article published by a Chicago expert on this, an attorney named Gil Sapir. The article is found at 22 John Marshall Law Review 1(1988). The specific information may be out of date, but the concepts are probably still good as gold.
“Its fiction, but all the facts are true!”
In Virginia, field breathalyzers are not admissible in court. You also have the right to refuse a field sobriety test, which I am told will buy you a quick trip to the pokie and the in-house breathalyzer, which is admissible. Refusal of that test brings on license revocation and a host of other pains in the hind.
A good friend of mine used this to her advantage by refusing the field test and using the leisurely ride to the station to sober up a bit. Her lawyer then attacked the (admittedly low but nevertheless legally intoxicated) station results by pointing out that one’s BAC can actually increase over time if the driver had just drank a significant amount. Therefore it was feasable that she was sober in the field and, I guess, falsely arrested.
In a similar vein, another friend of mine did take a field test and blew a 0.08: the lower limit of intoxication in VA. He blew a 0.08 at the station as well. His case was tossed for exactly the same reason; the field breathalyzer was not considered accurate enough to warrant his arrest since he passed the manual tests. (His lawyer also mentioned that 0.08 scores in VA almost always get pled down or tossed because 0.08 is very shaky ground on which to prove “intoxication,” and prosecutors don’t want to give a sympathetic judge the chance to send such a case up to higher courts. But that’s another thread.)
Another point to consider is that the field sobriety tests really are rigged, that is, the cops are not looking to be fair, they are looking for evidence to use to bust people. The tests are not designed to let people off, instead they are designed to give cops ammunition, er, evidence to use against the suspected drunk driver, a fact which the cops do not inform the suspect about before the tests are administered. For example, I know of one person who flunked the “walk and turn” test (ie take X number steps out on imaginary line, turn and take Y number of steps back) because she went out, turned, took Y steps back and kept going along the imaginary line to show the cop how easy it was for her to do. The cop said she flunked the test for “failing to follow directions.” Did the cop explain that taking too many steps would be construed as failing the test? Of course not.
We did cover DUI testing in prior messages pretty extensively. I don’t think the laws have changed since we wrote them.
And another thing: It is way too easy for a cop to allege that he had reason to stop the car and make the person take the breathalyzer test. All he has to do is testify that he observed the car “weaving”, that is, touching the center line or the side line of the road. How do you dispute that? It’s the cop’s word against the driver’s, and who’s word is the judge or jury more likely to believe? Usually the cop’s.
Similarly, cops testify that the suspect had “an odor of an alcoholic beverage about him”, had “glassy eyes” and “slurred speach.” Again, if the driver is alone, it is his word against the cop’s, and who is the court going to believe? Usually the cop’s.
I think cop’s should be required to videotape all such stops and tests, so that the court and jury can see for themselves who is telling the truth because frankly it is way too easy for cops to get away with “testilying” in drunk driving cases at the moment.
In some places (somewhere around Pittsburgh; I can’t remember where exactly), all traffic stops are automatically recorded. There’s a video camera in the car, and it is automatically activated as soon as the cop turns on the siren/lights.
There was a case a few years ago where a routine traffic stop was recorded this way, and the arresting officer was later charged with a civil rights violation of some kind (unfortunately, I don’t remember any of the details now). Guess he forgot he was on Candid Camera!
Never attribute to malice anything that can be attributed to stupidity.
I can’t believe what I’m reading in this thread. DRUNK DRIVING IS INDEFENSIBLE. Does anyone know a person who was wrongfully arrested for DUI (outside of people incapacitated for other reasons, i.e. epileptic seizures)? Personally, if I knew of some loophole in the DUI/DWI laws, I would not share it with any of you. You made the decision to get behind the wheel after drinking. You put lives in jeopardy. Sorry if a DUI conviction ruins your day.
I know the OP dealt with a legal issue that I’m completely ignoring (next stop, Cuba). And maybe my comments belong in the Pit.
A better thread would be “how do I get from point A to point B when I’m really drunk without putting lives at risk?”
No this isn’t a FOAF story. I personally heard it from the guy it happened to and I’ve heard it confirmed by other people.
Anyway, several years ago a friend of mine who I’ll call “John” (because that was his name) was a heavy drinker. And, in defiance of common sense and pleas from his friends, he used to drive home when he was drunk. He had various “tricks” to help him stay awake while he was driving; one of which was to play the radio VERY LOUD.
So one evening he’s been drinking and attempting to drive home and at some point he blacked out. He awoke off the side of the road and saw the flashing lights of a police car in his rear view mirror. He was still very drunk and confused but he decided the most important thing to do was turn down the radio because he thought the policeman would be made suspicious by the loud volume. So he attempted to turn down the radio before the cop got to his window but, even given his level of intoxication, was having an unusually difficult time turning down the volume. Giving it his full attention, he just managed to turn the sound off as the officer tapped on his window. Putting on his best innocent expression, he rolled down the window and asked what the problem was. The officer squatted down and said “Sir, do you realize your vehicle is upside down?”