Hypothetical traffic stop question for the legal eagles

[atomicbadgerrace]

Inspired by this thread, I have a hypothetical scenario for input from the legal folk on this board. Mods, this may be better suited for another forum, but I feel like it may have a specific, accurate answer somewhere. If it’s in the wrong place, I apologize, feel free to move.

Preamble: This situation is purely hypothetical in that I invented it a few minutes ago in the restroom. You are not my lawyer, I am not your client, no response will be taken as legal advice and all responses will serve as purely informational.

That said, imagine this. You and a buddy get pulled over late at night by two officers. Upon reaching your car, one cop advises that he smells alcohol on your person, and asks you to consent to a breathalizer. You reply “I’m sorry, officer, but I’m unsure of your basis for this request. Neither of us have been drinking, and there is no alcohol in this vehicle, nor any lingering smell of alcohol. Am I free to go now?” Your friend says “for the record, officer, I concur with the driver.”

The cop is insistent that he smells alcohol. Begrudgingly, you take the breathalizer, and blow a 0.00 (or whatever NONE reads as). The cop pokes around in the car and finds no alcohol, nor any liquid container. He releases you to go.

End hypothetical scenario.

Now… is there any recourse for the officer’s error in judgement? Would you be likely to have luck with a civil suit (for what, I’m not sure – harassment?), or are you limited to writing a strongly worded yet polite letter of complaint to his superior? I only put two officers in so that if it were to go to court or anything, the other officer could testify that both he and your passenger agreed that there was no odor of alcohol.

In either case, what could happen to the officer? I doubt he’d lose his badge over an isolated incident like the hypothetical above, but can a judge mandate retraining? A medical examination of his olfactory bulb?

Thanks for playing along with the scenario. Again, this situation is purely hypothetical in that I invented it a few minutes ago in the restroom. You are not my lawyer, I am not your client, no response will be taken as legal advice and all responses will serve as purely informational.

On second thought, this might be better suited for IMHO, but I’ll let the mod make the final call. I think it’s likely there’s a factual answer for this, but it could be open to speculation. Rico, Colibri, samclem, Gfactor – do with this thread what you feel is best.

[NicePete]

Let me put it this way – I wouldn’t take that case unless you were paying me by the hour, up front.

[Xema]

@atomicbadgerrace

Would you be likely to have luck with a civil suit

Showing damages might prove challenging.

[UltraVires]

I’m usually one to pounce on cops with 4th amendment issues, but what is here that I am supposed to be outraged about? Are you hinting that the officer REALLY didn’t smell alcohol, but he was just screwing with you somehow?

[Quartz]

It’s a question of trust. If the officer lied about smelling alcohol, what other lies has he told?

[atomicbadgerrace]

@jtgain

I’m usually one to pounce on cops with 4th amendment issues, but what is here that I am supposed to be outraged about? Are you hinting that the officer REALLY didn’t smell alcohol, but he was just screwing with you somehow?

Well, yes. Neither of you had been drinking and there was no alcohol to be found in the car. I suppose the deeper question is, what checks are in place against an officer who makes up probable cause? And what consequences are there for that officer?

@Quartz

It’s a question of trust. If the officer lied about smelling alcohol, what other lies has he told?

Agreed.

[Quartz]

Imagine if the officer were subsequently involved in another case and this were brought up: suddenly his entire testimony is open to doubt.

[racer72]

You and a buddy get pulled over late at night by two officers. Upon reaching your car, one cop advises that he smells alcohol on your person, and asks you to consent to a breathalizer.

This in itself would likely never happen. The officer would need a valid reason to pull you over such as erratic driving. The officer then could base his stop for this reason. The police, especially those that work traffic control, are highly trained to recognize alcohol usage and the officer would likely use this to determine if a breath test is warranted, not the smell of alcohol. I have seen a police officer friend of mine guess how many beers someone has had to drink and it is scary how accurate he is. Most police officers would only use the smell of alcohol as a reason to search the vehicle driven by someone that is underage, not as a basis for a breath test.

[Santo_Rugger]

Many places are “implied consent”, which means you’ve already agreed to take a breathalyser regardless of the circumstances, IIRC. Now, if the officer is tazing you while you’re taking said breathalyser…

[Gfactor]

You can get nominal damages under Section 1983: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=435&page=263

Court-awarded attorney fees may be very limited, though: http://www.law.cornell.edu/supct/html/91-990.ZO.html

If the officer was simply mistaken (i.e., he really did think he smelled alcohol) you’d probably be unable to recover under state or federal law; You’d have to prove either that his mistake was unreasonable or that he knew all along that the driver’s breath did not smell of alcohol.

[Flander]

@Santo Rugger

Many places are “implied consent”, which means you’ve already agreed to take a breathalyser regardless of the circumstances, IIRC. Now, if the officer is tazing you while you’re taking said breathalyser…

Correct. In Florida, a stipulation of having your driver’s license is the consent to take breathalizer tests. If you refuse, your license is suspended immediately for 6 months.

[Balthisar]

@Flander

Correct. In Florida, a stipulation of having your driver’s license is the consent to take breathalizer tests. If you refuse, your license is suspended immediately for 6 months.

Michigan is like this, too (not sure about the penalties, though). But what happens if you have an out-of-state license? No implied consent.

[Gfactor]

@Balthisar

Michigan is like this, too (not sure about the penalties, though). But what happens if you have an out-of-state license? No implied consent.

The statute is a bit different than that:

257.625c Consent to chemical tests; persons not considered to have given consent to withdrawal of blood; administration of tests.

Sec. 625c.

(1) A person who operates a vehicle upon a public highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine or the amount of alcohol in his or her breath in all of the following circumstances:

(a) If the person is arrested for a violation of section 625(1), (3), (4), (5), (6), (7), or (8), section 625a(5), or section 625m or a local ordinance substantially corresponding to section 625(1), (3), (6), or (8), section 625a(5), or section 625m.

(b) If the person is arrested for felonious driving, negligent homicide, manslaughter, or murder resulting from the operation of a motor vehicle, and the peace officer had reasonable grounds to believe the person was operating the vehicle in violation of section 625.

(2) A person who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician is not considered to have given consent to the withdrawal of blood.

(3) The tests shall be administered as provided in section 625a(6).

http://www.legislature.mi.gov/(S(bgetce55n0tj3hj4uhxwpl45))/mileg.aspx?page=getObject&objectName=mcl-257-625c

[St.Urho]

@Balthisar

Michigan is like this, too (not sure about the penalties, though). But what happens if you have an out-of-state license? No implied consent.

I can’t get the Colorado statutes to come up on my Mac, unfortunately. However, the spiel the cops give to someone before a blood/breath test is: “By driving in the State of Colorado, you have consented to a chemical test of your blood or breath.” Nothing about having a Colorado DL.
For the record, I know this because we do legal blood draws a lot at work.

[Little_Nemo]

Not really a case here. The bottom line is that while you are offering your credibility that you had not consumed any alcohol, you have to give equal weight to the officer’s testimony that he did believe he smelled alcohol. The fact that he was in error doesn’t prove that he was lying. So the assumption would be that the officer made a mistake which had minimal consequences and no significant harm to anyone.

[Bricker]

Consider what happens if, just before leaving the keg party at which you were carefully sipping Diet Coke all night in anticipation of your drive home, someone spills their 40-oz Miller Genuine Draft all over you.

The officer at the traffic stop will almost certainly smell alcohol on your person. He’s not lying. But you’re ultimately going to blow a 0.0 on the breathalyzer.

[Gfactor]

@Balthisar

Michigan is like this, too (not sure about the penalties, though). But what happens if you have an out-of-state license? No implied consent.

For the sake of completeness, there’s also this:

If you are stopped for drinking and driving by a law enforcement officer, you may be asked to take a breath test while on the road. This breath test is called a PBT or a preliminary breath test. If you refuse to take the PBT, a civil infraction ticket may be issued for refusing to take the breath test.

You will be taken to a police department to take a breathalyzer test. If you refuse, your drivers license may be suspended.

http://courts.michigan.gov/scao/selfhelp/intro/criminal/misd.htm

(b) A person arrested for a crime described in section 625c(1) shall be advised of all of the following:

(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests.

(ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other admissible evidence in determining the defendant’s innocence or guilt.

(iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request.

(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test shall not be given without a court order, but the peace officer may seek to obtain a court order.

(v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s or chauffeur’s license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record.

http://www.legislature.mi.gov/(S(ao0ynb45gktryqe0z0xia155))/mileg.aspx?page=getObject&objectName=mcl-257-625a
257.625d Refusal to submit to chemical test; court order; report to secretary of state; form.

Sec. 625d.

(1) If a person refuses the request of a peace officer to submit to a chemical test offered pursuant to section 625a(6), a test shall not be given without a court order, but the officer may seek to obtain the court order.

(2) A written report shall immediately be forwarded to the secretary of state by the peace officer. The report shall state that the officer had reasonable grounds to believe that the person had committed a crime described in section 625c(1), and that the person had refused to submit to the test upon the request of the peace officer and had been advised of the consequences of the refusal. The form of the report shall be prescribed and furnished by the secretary of state.

http://www.legislature.mi.gov/(S(ao0ynb45gktryqe0z0xia155))/mileg.aspx?page=getObject&objectName=mcl-257-625d
257.625e Refusal to submit to chemical test pursuant to § 257.625d; request for hearing; notice.

Sec. 625e.

(1) If a person refuses to submit to a chemical test pursuant to section 625d, the peace officer shall immediately notify the person in writing that within 14 days of the date of the notice the person may request a hearing as provided in section 625f. The form of the notice shall be prescribed and furnished by the secretary of state.

(2) The notice shall specifically state that failure to request a hearing within 14 days will result in the suspension of the person’s license or permit to drive. The notice shall also state that there is not a requirement that the person retain counsel for the hearing, though counsel would be permitted to represent the person at the hearing.

http://www.legislature.mi.gov/(S(ao0ynb45gktryqe0z0xia155))/mileg.aspx?page=getObject&objectName=mcl-257-625e

257.625f Effect of failure to request hearing; hearing procedure; notice; authority of hearing officer; scope of hearing; finding; record; licensing sanctions; judicial review; notice to motor vehicle administrator of another state.

Sec. 625f.

(1) If a person who refuses to submit to a chemical test pursuant to section 625d does not request a hearing within 14 days after the date of notice pursuant to section 625e, the secretary of state shall impose the following license sanctions:

(a) If the person was operating a vehicle other than a commercial motor vehicle, suspend or deny the person’s operator’s or chauffeur’s license or permit to drive, or nonresident operating privilege, for 1 year or, for a second or subsequent refusal within 7 years, for 2 years. If the person is a resident without a license or permit to operate a vehicle in the state, the secretary of state shall not issue the person a license or permit for 1 year or, for a second or subsequent refusal within 7 years, for 2 years.

---

(2) If a hearing is requested, the secretary of state shall hold the hearing in the same manner and under the same conditions as provided in section 322. Not less than 5 days’ notice of the hearing shall be mailed to the person requesting the hearing, to the peace officer who filed the report under section 625d, and if the prosecuting attorney requests receipt of the notice, to the prosecuting attorney of the county where the arrest was made. The hearing officer may administer oaths, issue subpoenas for the attendance of necessary witnesses, and grant a reasonable request for an adjournment. Not more than 1 adjournment shall be granted to a party and the length of an adjournment shall not exceed 14 days. A hearing under this subsection shall be scheduled to be held within 45 days after the date of arrest for the violation. The hearing officer shall not impose any sanction for a failure to comply with these time limits.

(3) Except for delay attributable to the unavailability of the defendant, a witness, or material evidence, or due to an interlocutory appeal or exceptional circumstances, but not a delay caused by docket congestion, a hearing shall be finally adjudicated within 77 days after the date of arrest. The hearing officer shall not impose any sanction for a failure to comply with this time limit.

(4) The hearing shall cover only the following issues:

(a) Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in section 625c(1).

(b) Whether the person was placed under arrest for a crime described in section 625c(1).

(c) If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.

(d) Whether the person was advised of the rights under section 625a(6).

(5) A person shall not order a hearing officer to make a particular finding on any issue enumerated in subsection (4)(a) to (d).

(6) The hearing officer shall make a record of a hearing held pursuant to this section. The record shall be prepared and transcribed in accordance with section 86 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.286. Upon notification of the filing of a petition for judicial review pursuant to section 323 and not less than 10 days before the matter is set for review, the hearing officer shall transmit to the court in which the petition was filed the original or a certified copy of the official record of the proceedings. Proceedings at which evidence was presented need not be transcribed and transmitted if the sole reason for review is to determine whether the court will order the issuance of a restricted license. The parties to the proceedings for judicial review may stipulate that the record be shortened. A party unreasonably refusing to stipulate to a shortened record may be taxed by the court in which the petition is filed for the additional costs. The court may permit subsequent corrections to the record.

(7) If the person who requested a hearing does not prevail, the secretary of state shall impose the following license sanctions after the hearing:

(a) If the person was operating a vehicle other than a commercial motor vehicle, suspend or deny issuance of a license or driving permit or a nonresident operating privilege of the person for 1 year or, for a second or subsequent refusal within 7 years, for 2 years. If the person is a resident without a license or permit to operate a vehicle in the state, the secretary of state shall not issue the person a license or permit for 1 year or, for a second or subsequent refusal within 7 years, for 2 years. The person may file a petition in the circuit court of the county in which the arrest was made to review the suspension or denial as provided in section 323.

(b) If the person was operating a commercial motor vehicle, impose the sanction prescribed under subsection (1)(b) or (1)(c), as applicable. The person may file a petition in the circuit court of the county in which the arrest was made to review the suspension or denial as provided in section 323.

(c) If the person was operating a commercial motor vehicle and was arrested for an offense enumerated in section 625c other than a violation of section 625a(5) or 625m, impose the license sanctions described in subdivisions (a) and (b).

(8) If the person who requested the hearing prevails, the peace officer who filed the report under section 625d may, with the consent of the prosecuting attorney, file a petition in the circuit court of the county in which the arrest was made to review the determination of the hearing officer as provided in section 323.

(9) When it has been finally determined that a nonresident’s privilege to operate a vehicle in the state has been suspended or denied, the department shall give notice in writing of the action taken to the motor vehicle administrator of the state of the person’s residence and of each state in which he or she has a license to operate a motor vehicle.

http://www.legislature.mi.gov/(S(ao0ynb45gktryqe0z0xia155))/mileg.aspx?page=getObject&objectName=mcl-257-625f

257.625g Duties of peace officer if person refuses chemical test or if test reveals unlawful alcohol content; test results; duration of temporary license or permit; “unlawful alcohol content” defined.

Sec. 625g.

(1) If a person refuses a chemical test offered pursuant to section 625a(6), or submits to the chemical test or a chemical test is performed pursuant to a court order and the test reveals an unlawful alcohol content, the peace officer who requested the person to submit to the test shall do all of the following:

(a) On behalf of the secretary of state, immediately confiscate the person’s license or permit to operate a motor vehicle and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the secretary of state.

(b) Except as provided in subsection (2), immediately do all of the following:

(i) Forward a copy of the written report of the person’s refusal to submit to a chemical test required under section 625d to the secretary of state.

(ii) Notify the secretary of state by means of the law enforcement information network that a temporary license or permit was issued to the person.

(iii) Destroy the person’s driver’s license or permit.

http://www.legislature.mi.gov/(S(ao0ynb45gktryqe0z0xia155))/mileg.aspx?page=getObject&objectName=mcl-257-625g

[UltraVires]

@St. Urho

I can’t get the Colorado statutes to come up on my Mac, unfortunately. However, the spiel the cops give to someone before a blood/breath test is: “By driving in the State of Colorado, you have consented to a chemical test of your blood or breath.” Nothing about having a Colorado DL.
For the record, I know this because we do legal blood draws a lot at work.

I agreed to no such thing in the state of Colorado. I did in Florida, but not in Colorado. How can they make a statement like that?

They are creative about getting around basic freedoms, though. How about, “By walking down the street in the state of Colorado, you agree to submit to any interrogation by police and waive your 4th, 5th, 6th, 8th, and 9th amendment rights.”?

or “by inhaling that Colorado oxygen, you just gave us consent to search your vehicle!”

[mlees]

@jtgain

I agreed to no such thing in the state of Colorado. I did in Florida, but not in Colorado. How can they make a statement like that?

They are creative about getting around basic freedoms, though. How about, “By walking down the street in the state of Colorado, you agree to submit to any interrogation by police and waive your 4th, 5th, 6th, 8th, and 9th amendment rights.”?

or “by inhaling that Colorado oxygen, you just gave us consent to search your vehicle!”

Operating a motor vehicle on public land is not a constitutionally protected right, I believe. However, arrest & warrants (dealt with in the 4th amendment) are recognised as a protected right, and given Federally mandated minimum standards that must be met.

That also why states can regulate licensing, each with their own slightly different ways.

[Gfactor]

@jtgain

I agreed to no such thing in the state of Colorado. I did in Florida, but not in Colorado. How can they make a statement like that?

They are creative about getting around basic freedoms, though. How about, “By walking down the street in the state of Colorado, you agree to submit to any interrogation by police and waive your 4th, 5th, 6th, 8th, and 9th amendment rights.”?

or “by inhaling that Colorado oxygen, you just gave us consent to search your vehicle!”

What about, “by driving in Massachusetts, you appoint the registrar as your agent for service of process?” E.g., *Hess v. Pawloski * (1927): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=274&invol=352

and see,

(1) Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to the provisions of this section.

(2) (a) (I) A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, habitual user, or UDD. Except as otherwise provided in this section, if a person who is twenty-one years of age or older requests that the test be a blood test, then the test shall be of his or her blood; but, if the person requests that a specimen of his or her blood not be drawn, then a specimen of the person’s breath shall be obtained and tested. A person who is under twenty-one years of age shall be entitled to request a blood test unless the alleged violation is UDD, in which case a specimen of the person’s breath shall be obtained and tested, except as provided in subparagraph (II) of this paragraph (a).

http://www2.michie.com/colorado/lpext.dll/Infobase4/1/663a3/674d6/674d8/682df/683b3?f=templates&fn=document-frame.htm&2.0#JD_42-4-13011

*and *

*Swanson v. State *, 2000 MT 335N; 2000 Mont. LEXIS 319 (Montana 2000) (upholding seizure of Wyoming resident’s Wyoming driver’s license and revocation of Montana driving privileges after driver refused to take breath test).