There is a long story involved behind this case. The driver was trying to avoid a cat in the road, skidded on wet autumn leaves, and hit a telephone pole, sustaining minor injury, and was taken to a local hospital to be checked out for possible serious injury.
Evidence eventually did clear the bartender of being legally impaired. However, thousands of dollars were spent on proving this to be the case. Blood tests run after the skin was swabbed with alcohol in the hospital did detect (surprise, surprise!) a slight amount of alcohol. There were witnesses that the defendent had spent the hour prior to the accident in a diner that did not have a liquor license, as well as witnesses that the bartender was sober upon leaving work.
So, yes, the bartender was cleared of DWI, but it took a lot of money to prove it.
People are arrested and then released all the time, sometimes without any charges being filed. Live long enough and you’ll probably meet someone this has happened to. We had a neighbor who was accused of a crime, arrested and brought down to police headquarters. After hearing his side of the story they released him and the charges were dismissed. That’s why it’s not a good idea to necessarily think harshly of someone just because he was arrested.
If you were giving a first person account I would try to take it at face value. Since this has been filtered through a friend and you were not there, not so much.
My point was that sometimes people are arrested and then released without any charges ever being filed. Or the charges are dismissed after questioning. In my neighbor’s situation he was released and no charges were filed.
I’m telling you things do not work the way you think they do. Or the way your friends told you they did. Unless you are lying and you were the one arrested.
When blood gets taken it isn’t put into random vials and thrown in someone’s pocket. That would never stand up in court. There is a kit. Contains vials, wipes container to seal the vials in. There is a form the nurse has to sign. The alcohol/iodine wipe issue has been trashed out in court so the nurses and the cops are very aware of it. I’ll take back “iodine” and say “non-alcohol wipe”. Does not have to be iodine.
BTW it doesn’t matter anyway. There is a difference between isopropyl alcohol and ethyl alcohol. The test can tell the difference. The wipe issue is just something lawyers use to confuse judges and juries.
Sorry I would prefer to find a more scientific cite but this will do for now.
On reading that it seems to be used a lot for Otis type offenses. Arrest em for drunk in public then release after sober. New Jersey has no public intoxication law, although there are some local ordinances.
Yes, that’s precisely what it’s typically used for. But it’s broader than that, particularly subsection 1. Basically if a cop figures out that there’s not really a criminal violation, he can just “849(b)” the arrestee. Of course there’s still documentation to be done about the how and why everything went down, but the person does get unarrested and released.
Well, actually I was at the hearing for this one. And, no, I was not the accused. It was claimed that the skin was cleaned with an iodine wipe. However, the accused had no stain from the iodine. The cop who made the arrest did not show up for the hearing. The prosecution had no proof of the chain of custody of the sample between the hospital and the lab in Trenton. I don’t know if the sample was tested using gas chromatography or some other means. In short, it was a sloppy case at best. The accused was not convicted. The charges were reduced by the judge to careless driving because all that could be proved was that the bartender did, in fact, hit a telephone pole.
To answer the OP, to the best of my knowledge (I am not a lawyer, but have by coincidence been in court for three such cases) the police need probable cause to do a breathalyzer. In NJ the roadside one is not admissible in and of itself as evidence of intoxication, but can be part of probable cause for the arrest and detention for a more reliable test at the police station.
As I’ve said before, I have respect for police and the sometimes dangerous work they do. We have been on the receiving end of very necessary and very appreciated assistance by the police. In one case it was a literal life and death situation. However, at least 50% of all police are below average. In some towns the main function of the average patrol officer is to generate revenue by whatever means possible.
My lawyer friend says probable cause is needed in order to compel a person to take a breathalyzer. Probable cause is easy to allege when needed. As I said originally, the officer can say he/she saw a driver weaving within the traffic lane. Nobody can prove he/she didn’t see that. Bingo. Breathalyzer.
Ignoring the issue of officers perjuring themselves, I think you should clarify things with your lawyer friend. Sure “weaving” can be the reason for the stop, but it’s not probable cause for administering a breathalyzer (jurisdictional discrepancies aside). The cop needs probable cause to believe the driver was driving under the influence. So… Weaving + slurred speech + beer breath + red eyes + beer in the cupholder. That’s an example of the probable cause necessary to compel the breath test. Not just a garden variety traffic violation.
That is simply not true. What you use as an example is probable cause for a stop. Could be used as probable cause for a careless driving ticket. Would only be a small part of probable cause for intoxication. Evidence of intoxication would be needed for probable cause of intoxication. Field sobriety tests, HGN, etc. All of which are on tape if at all possible for evidence readings. Sure I guess a cop could pretend the guy failed. And then he would subject himself to hours of paperwork in order to get a .00 reading which believe me would not be good for ones career.
Yes, but did you know you do not have to subject yourself to the field sobriety tests? You can simply say you would rather not do so. You don’t HAVE to do a damn thing except provide the required I.D., step out of the car if asked. And, of course, if you are taken back to headquarters, take the official alcohol test before you are allowed to call your lawyer. The cop is there one-on-one with the suspect. He is armed. Most of us have been taught to respect the law and to comply with requests. Face it, there ARE police officers who are dishonest, and some who are not too bright.
This is a little off-topic, but several years ago I was on a jury; the defendent was charged with burglary, theft, receiving stolen property, and assault on police officers. He was alleged to have tried to run over two police officers in the getaway car. Problem was, the accounts offered by the two police officers did not agree. So one or both of them were lying. We found the defendant not guilty of that accusation.
You do realize that the vast majority (somewhere around 90% last I checked) of revenue from New Jersey traffic fines goes directly to the state? Thats why the fines keep going up, the state needs more money. Try and find one cop out there who gives a shit if the state gets more money. Including State Troopers. The little bit thats left pays for the overhead: judge, prosecutor, PD, clerks… I’m sure in some small towns who are able to keep the overhead down that the money left over might help a bit. For bigger towns revenue minus costs of running the court are negligible.
I will no pretend to know what happens in other states.