In that case, I don’t think it is. They obviously don’t suspect every driver of being drunk. However, everyone legally driving has signed the implied consent. Just by driving on a public road, you’ve agreed to be tested. It’s a separate issue, I suppose, from how they choose who to test.
You know that the technology exists to remotely sense the presence of alcohol in the air within the cab of a car?:
Probably they’ll set these up along on-ramps, and then it will automatically send an alert to police cruisers further up the freeway.
I believe at least one court has ruled that this doesn’t necessarily go against the Fourth or Fourteenth.
I guess I’m questioning this part of your previous post, bolding mine –
How does testing everyone driving on a particular road satisfy the requirement of suspicion, even if such suspicion need only be the slightest possible? How is simply driving a car even remotely suspicious?
They’re two separate things. Implied consent is one. Suspicion is another–like I said, weaving, slurred speech, etc.
Have you ever been through a sobriety check point? They don’t just stop you and ask you to blow into the breathalyzer. They say, “Good evening. May I see your license and registration? Where are you heading this evening?” etc. They might even ask you point blank, “Have you been drinking this evening?” just to let you fess up.
At this point they’re shining the light in your eyes to see if the pupils are dilated. It’s also at this point that they have to find probably cause: smell of alcohol, slurred speech, whatever. It’s obviously subjective, but no one’s ever gotten a ruling against it.
Well, obviously they don’t. So the cops just wave through the people who they think are okay. They don’t test those people. They don’t want to, either. It’s a big hassle to administer a breathalyzer when it isn’t necessary. They use it on people who they’re fairly certainly will blow above the legal limit, so that the charge will stick.
Granted, this is how it’s supposed to go. Probably they also take the time to run warrant checks, Fourth-waivers, etc.–especially when a cop just doesn’t like they way you look, for whatever reason.
Why do we need reasonable suspicion? Do we test pilots, mine workers etc? Why yes we do, because being under the influence lowers safety for co workers, the same can be said for drivers.
At our road side tests they do not run warrants etc, Just “please blow in this until I ask you to stop”.
Also any police car can conduct RBTs.
Adminstering a breathalyser takes seconds and if it is positive over the limit then a second test is taken in controlled situation.
So assuming I’m driving and I’m pulled over at a check point (CA), do I have to answer the above questions? I thought I was limited to providing an ID and auto registration stuff. Beyond that, it seems to me self-incriminating.
So assuming I’m driving and I’m pulled over at a check point (CA), do I have to answer the above questions? I thought I was limited to providing an ID and auto registration stuff. Would answering “Officer am I being detained, or am I free to go?” be a reasonable answer? Beyond that, it seems to me self-incriminating.
I’m not a lawyer or a police officer, but a friend of mine who is a defense attorney says “Even a fish wouldn’t get caught if it kept its mouth shut.” So user-hostile is theoretically correct that you don’t have to answer these questions. A polite “I would rather not discuss it,” is legal. However – this is also likely to get you detained longer. Police are certainly capable of lying. They can say they smelled alcohol on your breath even if they didn’t. They can claim to have seen suspicious behavior and get a warrant to search you and your car. They can ask you to get out of your car, and you must obey that. Then they can “observe” that you were unsteady on your feet and need to be taken to headquarters for further observation. I personally know of three specific cases in which a person who was actually not impaired were subjected to variations of the above. I am not intending to malign all police, who do perform incredibly useful services, often at risk to their own safety.
From what I understand, Montgomery Co. Texas has the highest incidence rate of drunk driving fatalities in the nation (for some unknown period). Driving there this Labor Day, we were aware of a program initiated to combat that.
Essentially, DUI check points are now illegal. So they “saturate” areas where past incidents are high with patrols and pull suspected inpaired drivers over for the most minor of infractions. You are given a chance to take a Breathalyzer. If you refuse they have Judges on hand or call available that can issue warrants for search and arrest. They will then draw your blood and they will with scientific evidence fully prosecute for a conviction.
It was the specific basis for the arrest of a person I know, who was quite sober at the time, as a later test clearly showed. But the police officer “knew” the driver was being careless and was under the influence of something. And he “knew” that the reason the individual smelled of beer was because of drunkenness, and was not interested in the real reason: The person involved was a bartender, returning home from work in the small hours of the morning, and had undoubtedly splashed that beverage on clothing at some point during the night. But the bartender ended up spending thousands to prove innocence of the charge of DWI, while in reality was guilty only of being tired at the end of work and trying to avoid hitting a cat in the road.
Home sick so didn’t know if I have the energy or aquity to give a proper GQ answer. But I’ll give it a shot.
In NJ by the time you get to the breathalyzer you have already been arrested. At that point there had to be both probable cause for the stop and probable cause for the arrest. There is no right to refusal at that point. Part of the law which allows licensing covers the fact that driving on the road implies consent to breath tests. Refusal to submit to tests is a separate statute which carries the same penalties as a DWI.
If the OP is talking about the handheld portable units. Don’t know. If they are used here at all they are only used to confirm field findings and are not admissible in court. Therefore few departments use them (none that I know of). It would be different from state to state.
Swerving, “avoiding a cat” or other such things are probable cause for a stop and can be justification for a careless driving ticket. There would have to be more for an arrest for DWI.
When you bring to the table what a friend told you take into account the filter. Did he refuse the breath test? Did he fail the field sobriety test? Did he refuse to do them? Very rarely will someone tell a story about themselves that makes them look bad. In over twelve years I have seen exactly one guy blow a .00 after failing the tests. Yes it was severe exhustion. Was a quick dismissal when it got to court.
In NJ there is one breath tester that has standing in court. It is a table top model. So there is no “on the spot”. After arrest the law states that you must submit a breath sample. No provisions for requesting a blood test. The driver has the right to get an independant test on his own after that.
Since you don’t have portable units, I guess I can understand why you guys had to drag the poor guy to the station, but after blowing 0.0, why did you have to continue to book him, refer him to prosecution, and make him go to court on the DUI charge?
Because we are not judges. Trying to “unarrest” someone leads to all sorts of legal problems. And there are also the underlying motor vehicle charges leading to the stop which have to be heard.
Its also in the best interest of the public. If we were allowed to arrest, bring in, then unarrest it would open up all sorts of problems with people being brought in for little more than suspicion with little consequence for shaky arrests. Or the perception of it.
The point I was making was that you CAN be arrested because of a purely subjective allegation by a police officer. And that police can lie. If a cop says “The accused was driving erratically on an otherwise empty road,” who can prove otherwise? You don’t have to prove your innocence, but absent specific evidence to the contrary most judges and juries are going to believe the police. Please note again that I’m not saying they all lie, probably most do not, but that I truly believe that some do for one reason or another at one time or another.
Getting back to the original question, here’s the situation: You are stopped at a checkpoint, or because your taillight burned out. Police start asking questions. All you MUST do is provide certain ID. Most of us will go farther. We say “Sure, go ahead,” if they ask to search the vehicle. We willingly agree to talk about where we’ve been and where we’re going, etc. We fear (sometimes with justification) that if we say “No, you may not search my car,” or “I would rather not discuss my plans for the day, thank you,” suspicion may be aroused and a pretext may be invented that will permit the cop to get a warrant, which will at the very least inconvenience us further.
My lawyer friend says that lots of time his clients land themselves in trouble by providing self-incriminating post-Miranda statements and by permitting warrantless searches.