How do police departments handle suspicion of DUI if the driver has physical disabilities?
I knew a guy who was severely disabled congenitally. He had a car with hand controls, as his legs were short stubs. I used to drink at the bar where he (an alcoholic) drank.
Every so often he’d ask me to drive him home and I would. Often he drove himself when he shouldn’t. The local cops knew his car and purposely wouldn’t pull him over because it made them uncomfortable I guess.
Arrest them.
My dad was on a jury where the driver of a motorcycle had a bum knee and it being cold out, he couldn’t get his leg quite over the bike when the cop made him get off and he ended up knocking over the bike. Instant arrest for DUI. Guy had had like two beers that night so the test showed like 0.02 BAC. The cop now to justify the arrest rewrote it as impaired driving.
I can’t find anything online that says you are required to take the FST in Ohio. I have found a lot of cites that say you don’t have to, but they are all unofficial, mostly from attorneys.
I may have been in error. According to this site,
Ohio’s “implied consent” law requires all drivers lawfully arrested for an OVI to submit to chemical testing to determine BAC or the amount of drugs in the person’s system. For an arrest to be lawful, the officer who stops you must have reasonable grounds to believe you’ve been driving under the influence of alcohol or drugs.
So if I am interpreting this correctly, if I refuse any & all tests, I can not be arrested on that alone, nor can my DL be suspended on that alone. For my DL to be suspended, I must be arrested for DUI and refuse all tests. But IANAL, so this interpretation may be incorrect.
I found this:
Due to Ohios laws on implied consent, the police can still arrest you and suspend your license if you refuse a breathalyzer test. The length of the suspension on your license depends on if this is your first offense or not. Your license receives a 1-year suspension in your first offense for operating a vehicle under the influence (OVI). The length can go up to 5 years depending on the amount of previous offenses you have within the last 6 years.
The suspension lengths are less than what you would receive if you took the chemical test. If you agree to it, your first offense would only result in a 90-day suspension in Ohio. In addition, prosecutors could use your refusal against you to convince the court of your guilt. Your refusal could make it look like that you knew that you were driving while drunk and did not want to give the officer immediate evidence. Refusing a test does not mean the court cannot find you guilty of OVI and penalize you with jail time and fines. SOURCE
(link in the paragraph above is the actual law if you are interested)
It appears one can refuse a field test in Ohio, which makes sense.
Yeah…in Ohio always refuse a field sobriety test even if you’ve never had an alcoholic drink in your life.
Refusing the breathalyzer has immediate negative consequences.
NOTE: I am not a lawyer. This is not legal advice. Just opinion and quite possibly wrong.
I only got to post 98, but wanted to respond to this line of thought which has been posted a few times. Police treat various types of “potential” crime differently. They may preemptively go after intoxicated people for what they might do. But in cases such as domestic violence, at least where I am, they will refuse to come out until a crime has actually been committed.
I know this one from experience unfortunately; when I called and reported a very clear problem was going to occur within an hour, I was told directly by the officer that they don’t do preemptive policing, and she actually got a little snarky telling me that if they had to come out to everywhere people thought a crime was about to happen, they’d never get anything done.
I think you’re confusing the purpose of the law with the actions of the officers.
If walking a bike is considered “operating a vehicle” by the statute, then the individual is committing an offence at that moment. The law may be passed to deter future harm, but when the police see the inebriated person walking the bike, that person is committing an offence.
Mind you, I’m surprised that a bike can be considered a vehicle in some jurisdictions for the purposes of impaired operation laws.
In your personal example, it sounds like no crime had yet been committed. There again, however, I would think that the peace officer’s duty to “preserve the peace”, the phrase I’m familiar with, would give them discretion to respond to serious reports of a potential crime.
I wonder this about the intent of the law.
Was it originally meant to allow police to arrest drunks when they get in their cars, and are about to drive, but haven’t quite yet started driving? Or maybe to arrest drunks even when the cop didn’t actually see the car being driven?
So the cop sees somebody stagger out of the bar, fumble his keys, and climb into his car. The cop doesn’t have to wait until the car is actually moving and then try and pull the person over, but can start the arrest process before the car is moving and a danger. Or maybe, the cop sees somebody get out of a stopped car, stagger around, and puke on the side of the road. Never actually saw the guy driving, but why should the cop have to wait for the drunk to start driving again before making an arrest?
Seems reasonable, but now there is a law that lets police arrest people for DUI if they are merely “in control” of a car. So, of course, police expand from the original intent to fit all situations that meet the letter of the law. Sleeping it off? Arrest. Roommate has a special friend over? Arrest.
Fiction, but it wouldn’t surprise me if it were based on an actual case: in the TV series Scrubs, JD’s main means of transport is a gasoline-powered scooter.
He goes to a bar one evening and has a few. He knows he is NOT safe to drive - and it’s not all that far from home, so he walks home, pushing the scooter… and gets arrested and charged with DWI within a block or so of his home.
I don’t recall if the policeman who arrested him had some particular beef with him (I saw the episode years ago, but I seem to recall there’d been some history), nor do I recall whether the charges held up in court. But this would definitely seem to be a “letter of the law” (in control of a vehicle) along with a policeman who decided to be a jerk.
That is the same here in New Jersey. The portable breathalyzers are not admissible in court. The accuracy of those machines are not the same. For one you won’t have a 20 minute wait period to make sure there is nothing in the mouth throwing off the reading. I have never used one and my department doesn’t authorize them. Few departments in the state use them.
Our law states someone can be arrested for DUI if they are found to be operating a vehicle while impaired and/or have a BAC of .08%. The BAC reading is the per se argument. You can be under .08% if impairment can be proven. Amatuer drinkers can easily be impaired at a lower level. In reality the prosecutor really wants the per se level and will probably plea down to reckless driving regardless of what the video looks like.
My town doesn’t have any clubs. The liquor licenses belong mostly to chain restaurants. We don’t have a lot of people sleeping where they were drinking. It may have happened here but I don’t remember it ever happening. To me this is a discussion about something that happens very rarely. When I have seen people arrested for sleeping in a car they were somewhere that they obviously drove drunk to get to. Like a convenience store parking lot or the fast lane of a divided highway. It may happen more often in places that have night clubs.
This was in Australia (I think) and this guy amazingly passed multiple breathalyzers. I’m not saying they are all unreliable but even the cops here were surprised. (the guy admits to drinking but blows clean on more than one breathalyzer)
They’re used in Canada, but only as a roadside screening device. If you blow green (likely under .04), you’re free to go. If you blow amber (over .04 but likely under .08), you get a 24 hour driving suspension, but no charge. If you blow red (likely over .08), that’s reasonable cause for the police to make a demand that you accompany them to the detachment for a breathalzyer sample. The results of that sample analysis can be admitted in court, provided all the technical requirements are met.
Canada doesn’t have the “per se” appraoch. There’s two separate offences: driving while impaired, and driving over .08.
I’ve seen “alternative tests” for people with limited mobility (I.e. finger to nose test instead of walk and turn. The Alphabet test is another one [no, you don’t have to recite it backwards, but it’s amazing how poorly a drunk will do at the task of “recite D through Q”])
I concur with this advice. Always refuse the voluntary field sobriety tests (they are just used to gather evidence against you, and nobody is going to a good job walking a line “heel to toe”, or stand on one leg, under the threat of arrest).
But it isn’t a good idea to refuse the breath test (unless you are just really hammered), since it would result in an automatic license suspension.
Additionally, we can extrapolate the results back to when you were last behind the wheel (the test will usually be at least an hour or more later) to argue that you were actually much less drunk when driving. As I was trying to explain to somebody the other day, however, this assertion stretches credibility if you are 2 or 3 times the legal limit.
This is also true in Colorado and Florida, for the reasons you’ve mentioned. They aren’t considered accurate (although I do sometimes see them used when there is a passenger who says they are sober and are willing to drive the car home. Occasionally, a cop will ask for a PBT before letting the passenger drive off).
We have them in each squad brief case.
Another use for them is while investigating underaged consumption. Whether they’re driving or not the legal limit for under 21 is absolute zero.
With one exception. Minors can drink here (but not drive afterward) if they are with their parents while they are consuming. If I detain a kid walking down the street with odor of intoxicants on his breath and he says he was drinking with his parents and when I contact them they say he was, nothing I can do about it. Not surprising a lot of kids are wise to this and about half their parents will say they were drinking with them to keep them out of trouble.
Well, if one can be arrested for just sitting in his car and “sleeping it off”, then it might make more sense to his drunken mind to just try to get home right away because there is a much greater chance time wise that he’d be discovered by some passing cop just sleeping in his car. As law enforcement, I WANT to encourage a drunk driver to sleep rather than drive, and not make him feel that he may as well give it a go.
I am so unfamiliar with the device that I wouldn’t even guess at what’s going on there.
One hurdle for using such devices here in NJ is the process to establish the scientific accuracy with the court. We were the last state to use the old breathalyzer machines. The ones built in the 1950s. It became nearly impossible to fix them and incredibly expensive to do so. I don’t know how things are done in different states but in order for a new machine to become valid there had to be a town to volunteer to try the new machine. Then they had to wait for a defendant willing to appeal to the NJ State Supreme Court. Then the Supreme Court had to have a scientific reliability hearing. As I read on a lawyer’s page, “The litigation lasted over 3 years, with 20,000 documents. The actual in court testimony and challenge of the machine lasted 41 days. Over 8,300 pages of transcripts were produced, with 13 witnesses testifying, and over 400 exhibits introduced to the Court.” We couldn’t get rid of the old machines until 2008. Now they are talking about moving to a new model. No one is even thinking of doing that with a portable model.
HGN works extremely well. The eyes don’t lie. There are some medical conditions that can effect it but personally I’ve never seen anyone who fails HGN who wasn’t over the limit.