My friend was recently pulled over on suspicion of drunk driving. The cop performed all the regular physical tests (walking a straight line, following the pen, etc.)
My friend passed with flying colors. Next, the cop gave him a breath test, which he failed (barely).
My question is - why perform the physical tests if they are going to breathalyze anyway? I’ve heard of cops doing this almost every time. Is there some sort of law that requires the physical tests first? That doesn’t even make sense - if they pass those, and then get breath tested.
Any cops out there that want to explain this to me?
Well, I’m not a cop, but I did work as a Breathalyzer technician for about 5 years once. Here’s my take.
First, in order to be pulled over, your friend must have committed some sort of vehicular goof that attracted the attention of the cop. So, the minute the cop pulls him over, the cop is already 90% certain he’s going to be issuing a citation for something. He gets within sniffing distance of your friend’s breath and detects alcohol. Now, he’s 100% certain he’s going to issue a citation, and 90% certain he’ll be making an arrest for DUI. All that remains is to gather the necessary corroborative evidence that your friend was too impaired to drive. So, out come the ‘field sobriety tests’ for coordination, balance, etc. The breath test comes last simply, I would say, for convenience and practicality.
When your friend gets to court, the fact that he passed the physical tests should count somewhat in his favor (assuming the cop recorded the results fairly). What matters now is, how good an attorney will your friend have?
Since I don’t know exactly what the DUI laws in your state are, I’m somewhat limited in what I would recommend. Is this his first DUI offense? If not, how recently was his last one? If so, what court/judge is he likely to go before and what is the jurist’s record for DUI sentencing? Will your friend fight the charge? If so, is his attorney someone who ‘specializes’ (to the extent his state does/does not recognize specialties of law)in DUI cases?
What sort of breath test was administered? Was your friend advised of whatever special rights he may have under local law regarding getting his own test, refusing the test, having an attorney present, etc.? If a machine was used, was the officer who administered the test certified to know how to properly operate the machine? Could he have proved it, at the time of the test, by showing his certification? Was a daily log kept of the testing of the machine for proper operation by certified personnel? Was the machine tested against a sample of known concentration immediately after your friend’s test, to determine that it was in proper operation at the time? All these are questions that his attorney may want to raise.
I believe the reason they do the field tests first is because the driver has the option of refusing the breath test and accepting an automatic 180 day license suspension (without a DWI conviction.) The problem with that strategy is that if you fail the field tests badly enough then the cop can use that as evidence to convince the judge that you were intoxicated. You can then be convicted on the DWI charge in addition to the automatic suspension.
But my wife experienced the same situation - she passed the physical tests with flying colors and then blew right at the limit. The cop let us go (he had us call someone to get a ride however - I was trashed).
That doesn’t seem to jibe with the “in court” and “take the suspension option” theories.
Maybe 'cause it was in Wisconsin?
Even if I didn’t drink any alcohol, I wouldnt be able to make the physical tests because of some ear operation that messed my balance.
I think they just want to gather as much proof as they can.
On the other hand, keep a bottle of cough syrup in your glove compartment [why do they call it that still?] when you reach for your registration & insurance, have a sip. That way they can’t use the breath test proof later. lol
Handy: I think they just want to gather as much proof as they can.
On the other hand, keep a bottle of cough syrup in your glove compartment [why do they call it that still?] when you reach for your registration & insurance, have a sip. That way they can’t use the breath test proof later. lol
I don’t know whether that last is ‘lots of luck’ or ‘laugh out loud’, but forget about cough syrup. For one thing, a sip won’t do. A properly conducted breath test requires that the subject be under observation for at least 15 minutes before the test, and that nothing (absolutely nothing) be placed in the mouth. That includes gum and any foreign objects like pennies (which somehow got the bizarre reputation for messing with the reading). The officer will (should) usually tell you immediately not to put anything in your mouth. After he does that, putting anything in your mouth (even something that couldn’t reasonably be expected to effect the test) is considered (at least in some jurisdictions) to be the same as refusing the test, and will only get you the loss of your license. As for refusing – ask any decent attorney, and I’m sure he’d tell you to take the test and leave it to him/her to have it ruled inadmissible, if at all possible. Refusing the test will do no good; the officer will only testify that he smelled liquor on your breath anyway and that will usually be enough for most judges to find you guilty, along with the testimony about whatever traffic violation you allegedly committed. Even if you’re not found guilty, isn’t the whole idea to NOT lose your license?
As for the cough syrup – like I said, a sip would not be enough. The whole idea this is based on is, have a half-pint bottle on the seat (if you can – wishful thinking, mainly), and as soon as the cop pulls you over, (this works best with a witness for your side), get out of the car and in full view of the cop, BEFORE he can tell you to do anything else, knock back as much of the bottle as you can. You can then claim that any b-a reading subsequent to this was due to the half-pint. You may also expect to be charged with drinking in a public place and public intoxication, but those are issues for your lawyer to deal with.
A matter of serious concern here: What about diabetics? (My brother-in-law is diabetic, but so far as I know he hasn’t had this problem.) Does a diabetic’s metabolism influence the tests unduly? If so, diabetics who drive would probably do well to carry a written statement from their physician that they have diabetes.
Also, a lawyer (CA) once told me, in a paralegal class, to choose the urine test, rather than blood or breath; he said Ýou can hold some back’ to skew the test results in your favor. (California’s blood-alcohol level is .08.)
That is something I wondered about, is asking for a blood or urine test instead of Breathalyzer test considered refusal and therefore grounds for license forfeiture? I don’t trust the breathalyzer as far as I could comfortable spit a rat. And most cops won’t tell you about the 15 minute wait, or will claim they don’t have to.
>>Being Chaotic Evil means never having to say your sorry…unless the other guy is bigger than you.<<
I was reading a letter from a state trooper in Car and Driver magazine, and he basically said breathalyzers are trash because:
He had seen people blow way over the limit who were totally coherent and passed all field tests.
He had seen people who couldnt stand up blow below the legal limit.
DIF, I think you are missing the point. Cops just don’t jump into your car, no they turn on their siren, wait for you to pull over. There is plenty of time in that window to swig some cough syrup. The cops have no proof that you didnt drink that a half hour ago!
So, your defense that you put something in the mouth after youre pulled over & they take your license, doesn’t count here.
In Monterey, Calif, about a year back some cop pulled over another cop for driving under the influence. Gave him a ticket. Have no idea if he’s got a job there anymore
Typically the field sobriety tests and the small hand held breathalyzers that are used at the time one is pulled over are used as evidence to haul you into the jail where you either take a blood, urine or another breathalyzer (with a much more sophisticated unit).
The field testing doesn’t really carry much weight in court (unless you put on a really good show in front of the police cruiser’s camera during the field test). It’s the test after you are at the station that nails you.
Depending on what state you are in you can refuse testing at any level and go for the automatic license suspension. BTW this doesn’t automatically mean you won’t be charged with DUI/DWI, it just means that that particular evidence will not be available to use against you in court. The police officer’s testimony and any film footage of the incident can still pull out a conviction. Then you not only have the automatic suspension but might also have the DUI/DWI conviction suspension on top of it.
Slugging back a shot or a bottle of cough syrup won’t help much either. The smelling of alcohol on a drivers breath is only one of several indicators that the officer is going to be taking notice of. Also, one shot of cough sryup will not invalidate any high alcohol level blood, urine or breathalyzer test at the station.
As for letting drivers who test borderline on a breathalyzer go, that’s all in the officer’s discretion.
“Nuts!”
Gen A.C. McAuliffe
“The general’s nuts.”
unknown 101st AB grunt
OK, Boli, as a cop I’ll try to clear up a few things. First off, your friend did not pass the field sobriety test. To “pass” means that you have convinced that cop that further testing is unnecessary and you go on your merry way. (The optional “flying colors” can then be affixed to your car antenna) There are a lot of variables that go into a field sobriety test, more than being able to walk a straight line. I’ve seen many professional drunks walk the straightest of lines. To put it briefly, most tests are based on the principle of “divided attention” i.e. being able to do several tasks at one time. This is because we do many tasks at the same time while driving (shift gears, tune radio, whack kids, call Mom, balance Big Mac on steering wheel, etc). Most people under influence can’t do this. For those who can, you mentioned “following the pen”, this pertains to your eyes and the involuntary reactions your eyes have when you are under the influence. This is called “nystagmus”, a rapid jerking movement of the eye that you cannot control after you’ve been searching too long for Margaritaville. Of course, if you just fall out of the vehicle laughing, dead screaming drunk then we really don’t have to go through the procedures of a field sobriety test. The performance via the vehicle video (with our laughter and high-fiving in the background) will suffice, and we can just jump happilly over to the breathalyzer process and go from there. The breathalyzer is good to have to build a case, but not necessary (one example being drunken diabetics because their breath can throw off the calibrations of a breathalyzer) If you refuse, we can’t make you give a sample unless you’re involved in a real dogpile resulting in death or major injuries. To put it simply, there’s no set routine on DUIs, because all DUIs are different. The total case is based on a combination of field interview, field sobriety testing, physiological testing, and other variables. Now getting to the results your friend posted, well, “barely drunk” is like “barely pregnant”, don’t think I need to explain that any further. I really don’t want to lecture here because I like the humor and intelligence of (most) people on the SDMB, however on the subject of grabbing a bottle of cough syrup out of the glovebox when the officer is asking for driver’s license and registration and EXPECTING only a few slips of paper to be in your hand and not a bulky object—this can be a very disconcerting action to the cop and may result in the introduction of a pistol muzzle into your karma. Not a cool idea, I love my family and I work under the principle of “Rather being judged by 12 than carried by 6”. And usually the stunt you decide to pull will be carried on Mr. Video and probably wind up on the Fox Network for your Andy Warhol 15-minutes of fame, as well as not endearing yourself to the judge, jury and DA. Bottom line, a lot of this shit is a tragic waste of lives and careers and it ain’t fun for me. OK, off the soapbox, I’m going over to that cool jokes thread…
Boli, Bluepony has pretty much covered the finer points. Here are some others, based on my experience of about 4000 tests in five years as a breathalyzer tech. You may want to bear in mind that at the time I operated, the standard machine used two photometrically matched ampules of potassium dichromate mixed with sulfuric acid to measure the b/a in a breath sample. I understand the latest technology involves infrared or ultraviolet laser absorption.
Dougie_Monty: A matter of serious concern here: What about diabetics? . . . Does a diabetic’s metabolism influence the tests unduly? If so, diabetics who drive would probably do well to carry a written statement from their physician that they have diabetes . . .
True; it would probably be a good idea for them to carry a Medicalert bracelet & wallet card in any event. A diabetic’s metabolism certainly can influence the outcome, if the test isn’t done properly. In my experience, I only had two or three diabetics out of all the tests I ran. One thing many people don’t (or didn’t) realize about an old-style Breathalyzer is that the test could be fairly specific for more than just alcohol. The way I confirmed that the diabetics really were suffering an insulin or high blood sugar reaction was that the breathalyzer would give a zero reading after the requisite 90 seconds; but wait five minutes more, and it would seem to be well up the scale, because the ketones present in the breath of an unbalanced diabetic would also react with the sulfuric acid. This may have been one reason the old technology was replaced.
. . . Also, a lawyer (CA) once told me, in a paralegal class, to choose the urine test, rather than blood or breath; he said Ýou can hold some back’ to skew the test results in your favor. (California’s blood-alcohol level is .08
But, let’s be clear: most states, either because of their own laws or due to judicial decisions, MUST give the subject the right to have his/her own, independently-conducted test of whatever type, provided it is performed within a specified reasonable length of time. The state, however, also has its OWN choice of test for the driver; the breath test has become the standard for reasons of cost & speed. However, they could just as easily specify a blood test, assuming a hospital was close by.
Narile: That is something I wondered about, is asking for a blood or urine test instead of Breathalyzer test considered refusal and therefore grounds for license forfeiture?
I don’t trust the breathalyzer as far as I could comfortable spit a rat. And most cops won’t tell you about the 15 minute wait, or will claim they don’t have to.
If you are asking for a blood or urine test, at your own expense, IN ADDITION to the breath test the officer requires, then it’s not grounds, obviously. It’s certainly true that, while the breathalyzer (properly maintained & operated) is a consistently reliable instrument, not all b/a operators are. I don’t know whether the newer models of have found a away around this, but on the machines I used, if the operator were so inclined, he could adjust the position of the pointer on the machine regardless of what the actual result was. And, if a cop takes the breath sample before fifteen minutes are up, just hope you have a witness or that he’s dumb enough to somehow enter it on the test report form. Your attorney, if he’s worth anything at all, should make quick work of having the test result thrown out.
Roksez: . . . a state trooper . . .said breathalyzers are trash because. . .(h)e had seen people blow way over the limit who were totally coherent and passed all field tests.
He had seen people who couldnt stand up blow below the legal limit.
Which only points up the necessity for proper training at that police officers know what they are talking about. In the second case, this only proves that people can be intoxicated by things other than alcohol, for which the breathalyzer was never designed to test. You don’t dip litmus paper into a liquid to find its temperature, right? And you don’t fault the litmus paper for it, right? This is why courts have generally allowed the state the right to specify a blood test under certain circumstances. As for the first example you cite: I can remember several cases like this in my experience, but one sticks in my memory especially and will serve as a representative. The police brought this guy into the breathalyzer lab who appeared as “sober as a judge” (yeah, I know – don’t get me distracted with digressions). In the previous half-hour before the test, the guy had leaped a curb in a car and killed a pedestrian. I did all the standard physical tests – walk the line heel-to-toe, touch your nose with eyes closed, etc. The guy really seemed to do pretty good. But I did notice a slightly delayed reaction in his pupillary response – i.e., when I shone a pocket flashlight beam into his eyes, it took a moment for his pupils to begin to contract. However, I also noted that his pupils were’t that dilated to begin with. He also seemed to be conversing pretty calmly and normally. So – I took his breath sample, and we waited the requisite 90 seconds. As we waited, the guy seemed to melt out of his seat right before my eyes. It became apparent that, since the moment of the accident, he had been running on a strong flush of adrenalin which, with the giving of the sample (and the easing of his anxiety up to that point), had ceased. I soon discovered why he seemed to ‘melt’ – his test result was .33%!!! That’s VERY high – the machine only goes as high as .40%, and people start to die at about .35%. So the fact that some people can seem to ‘handle their liquor’ means nothing. A proper test includes an observation period of some length.
Handy: DIF, I think you are missing the point. Cops just don’t jump into your car, no they turn on their siren, wait for you to pull over. There is plenty of time in that window to swig some cough syrup. The cops have no proof that you didnt drink that a half hour ago!
So, your defense that you put something in the mouth after youre pulled over & they take your license, doesn’t count here.
Mmm, no, Handy, I think you have missed MY point. Most bottles of cough syrup are between 3-6 oz. The alcohol content runs as high as 25%. A ‘sip’ (your term) would do little good. Leaving aside the taste (and the likelihood of upchucking), even gulping down the whole bottle would only be equivalent to about two shots of 100 proof whiskey. Plus, in about half an hour after that, the dextromethorphan (synthetic codeine) in the syrup would ALSO kick in, and on top of whatever booze was already in your system, that would be enough to stimy a horse – and I’m NOT exaggerating! And as for “the cops have no proof that you didn’t drink that a half hour ago” – you have CLEARLY missed the point of the whole thing. The cops DON’T WANT to prove you DIDN’T drink it a half hour ago – that’s the basis of their case, that you were drinking BEFORE you got in the car. YOU, on the other hand, WANT TO ESTABLISH A CASE that any blood alcohol reading taken after you were pulled over was due to the booze you drank AFTER YOU WERE PULLED OVER. Your interpretation of what I said previously is totally wrong. My example – and it’s really NOT my example, but the advice of an attorney I knew – remains valid.
It's Latin, on the California DUI code, the language of lawyers, doctors and repressed Catholics like me. *Per se* for us laymen basically means, in this case of DUI, that "the act is illegal in and of itself". Bottom line, you don't have to be driving to be popped for DUI, having an illegal blood alcohol level and the *ability* to operate a motor vehicle (i.e. possession of the keys, presence in the vehicle with keys accessible, etc) will be sufficient cause for any police officer. As to "impairment" under DUI, certain occupations such as truck drivers can be prosecuted for a lower level that "under the influence" which is .08 in most areas. As an example, Florida considers impairment at .05 for commercial truckers. Understandable for the public safety since an impaired trucker in a Baskin Robbins 18-wheeler can do considerably more damage than the equivalent drunk in a Geo Metro. Anyway, didn't mean to drag this out----Everybody, check out Lissa's jokes thread in MPIMS and add some of yours. My joke bank was going dry.
Well Bluepony, went to my library, fished out their copy of BEAT THAT TICKET, thumbed thru its drunk driving section [this is a California only book] & he did say that if you are in a car & you are drunk & the engine is running, you can be arrested for DUI. It’s called ‘attempted DUI.’
I had a fraternity brother who got a dui because he passed out in the front seat with the keys in the ignition and the radio on. He knew he was too drunk to drive, so he decided to crash in his car and listen to the radio. But the keys were in the ignition. Then , two weeks later, he left a party too drunk to drive, and walked home. The cops stopped him and gave him a public intox. It’s like they were saying, “we’re going to punish you for not driving drunk.” I always heard if you are going to pass out in your car, throw the keys in the backseat where you cant reach them.
Actually, get in the back seat. Don’t sleep in the front seat.
Also, the reason some breath tests give false readings is because of when you last had something to drink. If you drank in the last hour, the breath test gives a very high reading, yet if you peed then, you would probably show ziltch.
Beat that Ticket explains it all…pages of it. sigh.
