Inspired by this thread.
Do police need reasonable cause to request you take a breathalyzer test, or can they just ask anyone at any time?
Laws differ from jurisdiction to jurisdiction.
In some locales, if you refuse to submit to a breathalyzer, then you can automatically be arrested and have your license suspended.
Not sure what the question in the other thread is, but the police can ask anyone for anything any time. Are you instead asking when they can order someone to take a breathalyzer (or face punishment)?
That’s more like it, yes.
My understanding is, at least in my state, that if you are driving, they can compel you to take one at any time. Refusing the test is a rather serious violation, whether or not you have actually been drinking.
Walking down the street, you are free to refuse a breathalyzer.
Regards,
Shodan
Canada requires you to take a breathalyzer if asked by the police when you are driving. The logic is that driving is a privilege, not a right.
I believe that in NJ they need to have probable cause. Of course, “probable cause” can mean different things to different people. “He was driving carelessly.” “No, I wasn’t. I swerved to avoid an animal in the road.” “No, you didn’t.” “Yes, I did.” “Didn’t.” “Did.”
A police officer needs “reasonable suspicion” that you’re breaking the law to pull you over at all. Unless there’s a DUI checkpoint, this is the minimum they need to put you in a situation where this even matters.
Other than that, I’d guess that technically, as a breathalyzer is a type of search, they’d need probably cause or a warrant to compel one, except that in many states, as mentioned numerous times above, it is actually a violation to refuse the test, in which case you’re out your license and probably have to pay a citation.
This is not correct. The police officer must have reasonable grounds to believe that the driver’s ability to drive is impaired by alcohol in order to make a breathalyzer demand.
There are different ways that the officer can conclude that there are reasonable grounds to believe the driver is impaired. One way is by direct observation of the driver, smell of alcohol, observations of poor driving, and so on. Another way is by physical sobriety tests, and a a third ways is through a different device, the roadside screening device. If the officer has reasonable grounds to believe that the driver has alcohol in their body, and has driven a vehicle in the past three hours, the officer can require the driver to blow into a screening device. If the driver fails the screening test, the officer then has grounds to make the breathalyzer demand. However, the evidence of the failed screening device is not evidence of impairment, simply evidence to show there are grounds for a breathalyzer demand.
The Criminal Code provisions aren’t based on a “right/privilege” distinction. They’re simply the method that Parliament has enacted to catch impaired drivers. Failure to blow into either the screening device or the breathalyser is an offence, carrying exactly the same penalty as driving while impaired, so driver doesn’t get a reduced penalty by refusing to blow.
As a driver in Australia we can get asked anytime we are driving and to refuse is considered an admission of guilt.
Indeed, there is no need for probable cause in Australia. The police set up RBTs (Random Breath Test) at the side of the road and pull people over to be tested. I haven’t had to do one yet but I imagine if you refuse or try to keep on driving there would be consequences.
It’s called “implied consent” (at least in California). Simply by getting a driver’s license and driving, you have already given permission for law enforcement to test you if an officer suspects even the slightest thing. You sign something to that effect when you apply for the license.
Because that suspicion can be so subjective, effectively a cop can test you whenever you’re on the road driving.
Would testing everyone stopped at a checkpoint be allowed?
Yes, the Supreme Court ruled that as long as it is a “neutral formula” for determining who gets stopped, it’s OK. That formula can be every car, every third car, whatever. As long as it’s not “anybody the officer thinks looks suspicious gets stopped”, it’s hunky-dory (Constitutionally speaking).
Where does the “suspicion” come in?
The probable cause is usually swerving or erratic driving. If stopped for another reason, then it’s slurred speech, etc.
When a cop first shines the light in your eyes, he or she usually then figures in that first moment if you’re under the influence of something–correctly or not, but usually correctly. They use the breathalyzer and or blood sample when they decide that they want to go to the trouble of making a case out of it. All the walking the line and counting backwards is mostly for show.
(This is from a friend of mine who’s a former DEA agent and who also teaches DUI classes.)
Rules vary by state. Here on Rhode Island, traditionally the police were not allowed to conduct traffic stops of anyone without probable cause because of the state constitution. I believe that has changed, or is in the process of changing.
They can stop everyone (or every third car or whatever) if they are running a checkpoint. If they are not going to do that, they can only pull over a specific person if they have reasonable suspicion you’re doing something wrong.
Yep and it works really well, we have lowered our death rates over the years dramatically. I see no issue with RBTs, in fact I think there should be more of them. What gives anyone the right to drive on a road drunk? And don’t crap on about freedom.
I understand that, but I am asking about testing *everyone *stopped at a checkpoint, just because they happened to be on the road. Surely that can’t be reasonable suspicion.