They aren’t in Texas. (thought I’d put in a good note for the Lone Star State)
In England & Wales, the offence is being drunk in charge of a motor vehicle. There was a case a few years ago where a man came home drunk and his girlfriend threw him out so he went to sleep on the back seat of his car, which was parked in the street. The police found him and, since he was in the car with the keys, he was successfully prosecuted.
Lets try to see this from the “anal” police officer’s perspective.
He recieves a call from dispatch for public disturbance. One neighbour is complaining about excessive noise (music). The officer arrives on scene and finds the suspect in his truck listening to loud music (The Rolling Stones apparently). He appears intoxicated at least from first appearance or at minimum when the officer starts to talk with him. Lets assume the officer knows the law. He has two choices:
- Arrest him for drunk driving under the law.
- Leave him be with a warning.
Now, what needs to be understood is that although police officers have a certain amount of discretion when it comes to citations (for example, speeding) they have little discretion when it comes to the letter of the law for more serious offenses, like drunk driving.
So imagine he leaves him be with a warning, and the neighbour or some other “anal” citizen also happens to know about this law and complain the the PD that the officer failed to arrest a drunk driver under the law. Or worse yet contacts the the press. This can be very damaging to the officers career. Even if the officer feels it is a stupid law, what choice does he have? His superiours are unlikely to be happy if a story runs in the press about an officer letting a drunk driver go. Even if it doesn’t go to the press, how does he explain not arresting a drunk driver? “Gee, sir, I thought it was a pretty dumb law”. Suppose that the neighbour calls back and another officer arrives on scene and arrests the drunk, how does this make the first officer look?
The law is the law, and in this case the officer had no discretion. Mind you I think the penalty was excessive, but the courts disagreed.
I’m not sure about other states…but in NC the state own all property 30 feet in each direction from the centerline of the road. So you can be in your yard yet not in your yard. Does that make sense?
I would tell the state to get on out here and mow their grass then…
Not true. Police officers are only authorized to issue citations and make arrests for criminal violations. I think you MEANT to say that running a red light is generally considered a misdeanor, whereas DUI/DWI is generally considered a felony.
In the UK you can be prosecuted even if you are just below the legal drink limit.
They can calculate backwards on the rate that your body deals with alchohol, for instance if you’ve been driving for a couple of hours from a meeting you might be in line for prosecution.
Other times a motorist might refuse the breath test and the delay in obtaining a warrant for either a blood test or breath test may mean that they are under the limit at the time of testing but over the limit on backtracking at the time of arrest.(the second refusal is treated both as a positive alchohol plus obstructing police in their duty and attracts lots of trouble from the courts)
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I have ALWAYS been uncomfortable with the manner in which U.S. (and presumably laws in other countries) define driving under the influence/driving while intoxicated. To me, a simple percentage of blood alcohol does NOT necessarily equate to one’s level of impairment nor to one’s ability to operate a motor vehicle.
I’ll cite an admittedly anecdotal example. Fifteen years ago, while I was still in college (yes I’m dating myself here…so be it), I participated in a study where I and several others were given shots of whiskey over a period of time then asked to negotiate an obstacle course with a Ford Mustang in a parking lot, at varying points of our blood alcohol saturation.
I don’t know what the results for any of the others was, but I know that in my case my best time was achieved when I had a BAC (that’s blood alcohol content) of .12 % ! And my times didn’t radically degrade until my BAC was close to .20, at which point I was definitely feeling no pain and would never have driven anyway.
The bottom line? For me it’s all too easy to rest on easily observed, yet possibly very misleading standards such as BAC in determining whether a driving is operating a vehicle in an unsafe way.
And yes, I’m aware of the horrible carnage and tragedies which have come as a result of drunken driving, and no I’m NOT trying to rationalize or endorse drunken driving, only to suggest that arbitrary standards of drunkenness based on blood alcohol saturation might in fact be very misleading.
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I come from a family of alcoholics. I don’t care if you drink yourself into the gutter, but drinking and driving is like shooting off a gun.
My sister was doing just that one night when she had to pull over to puke. While she had her head and arm outside the car, another car plowed right into her. She ended up with 27 stitches in her check and a pulverized, paralyzed left arm. She was charged with drunk driving, and lost her license and car. She stopped drinking.
Ok, Eddie, help me understand your position here-
You found through that study, that for you personally, you did not seem to exhibit impairment until you’d reached a BAL of .20. Right? And from that you extrapolate that the standard of a BAL is not a good one?
Ok. so what’s the alternative? Establish individual personal limits for each of us? (Suzie Q’s illegal BAL is .05, but Eddie’s is .20, while Zorba’s is .30 )?
seems a tad unworkable to me, especially since one’s abilities change over time as well.
Other alternatives? have secondary standards (such as visible impaired driving)? well, let’s think a moment about how that might work - one thing is that until some one actually hit something or ran off the road, you wouldn’t be able to presume impairment. I for one, don’t want to wait until some one has actually hurt themselves or others to be able to say ‘you were driving in an impaired condition’.
Or, say, the police could observe you swerving etc, and pull you over etc. Well, see, we kinda have that now, but, in order for the police to issue you a ticket for drunk or impaired driving, there has to be some other evidence (IE BAL) to back it up. I think that’s a swell idea. There are many anecdotal stories about such things as Driving While Black and so on, just think of how cool it’d be if they could attach a ‘drunk/impaired’ driving charge as well, just based on the policemans’ word (disclaimer, I am not saying that I think all cops/most cops etc actually do this. I have no idea how frequently it happens). My point is that the BAL gives a scientific line, vs. a subjective assessment of behavior, in order to sustain the charge.
Actually, the officer has a third choice: arrest him for disturbing the peace and/or violating a noise ordinance.
I’ve said this in other threads so I won’t belabor the point, but IMHO there is no valid reason why this behavior should be considered drunk driving. Just arrest the guy for disturbing the peace. Calling it drunk driving to boot is just piling on.
From the OP article, it looks like under the Minneapolis statute, just being in the seat with the engine running is enough to establish the offence.
Other jurisdictions may be bit more flexible. For example, the Canadian Criminal Code provides that sitting in the driver’s seat creates a presumption you intended to drive, but the accused can rebut the presumption by proving that he/she was in it for another reason (like testing the sound system).
We’ve had cases where the accused has proved they just were in the car to keep warm, and had the engine running for the heat (not an unreasonable defence in our winters - the temperature yesterday in Key Lake, Saskatchewan, was a balmy 47 below (Celsius)).
PatrickM: Sorry but that isn’t a choice. How can the officer justify to his superiors arresting a drunk driver, under the law, for disturbing the peace? Whether the law is stupid or not, it is not a law that generally PDs allow their officers to have discretion on.
PatrickM: Note, that the DA (or ADA, or up here in Canada the Crown Prosecutor) could decide that based on the circumstances of the case that a charge of drunk driving was not warrented, but that is not the function of the police.
OK, Scottish prosecution lawyer checking in here (the appropriate statute applies to the UK, so what I’m about to say is true for England & Wales too).
In the UK, this man has committed no crime - because he is on his own property. Had he been on a public road, he would have been guilty of a crime - not drink driving, but being drunk in charge of a motor vehicle. TomH is correct on that one. The man would have a defence however, if he could show that there was no likelihood of him driving whilst he was still over the limit.
Casdave is slightly incorrect, in that the police do not normally obtain warrants for blood samples for drink driving (I have come across no instances of it), they simply charge you with refusing the test. This is not treated as being a positive reading, just a refusal, but the penalties for that can be just as bad - including loss of license.
We can, and do, backcount in some cases, although there are difficulties in proving how long the accused has spent driving before being stopped, and when he last had a drink, so it is not often done. Generally, if a persom is found to have alcohol in his system, but is below the limit, he will face no charge. If he (or she - but it is usually men) is below the limit, but is clearly in no condition to drive, then he can be charged with driving whilst unfit through drink or drugs. Normally a doctor is called to confirm the accused’s condition, but evidence of the police alone is sufficient to convict.
NB operating the radio is not operating the vehicle (!) but pushing a car is driving it in the eyes of the law.
I’m sorry too Glitch, but making an arrest for disturbing the peace that IS his choice and should only be what’s he’s charged with, but for moronic laws that equate driving while intoxicated to using the car radio of a stationary car while intoxicated. The officer was originally responding to a call concerning a public distubance for loud noise, specifically, playing the Stones too loudly on a car radio in a public parking lot. In your hypothetical you incorrectly stated that the officer only had a choice of charging for DUI or letting him go. I merely pointed out that he had a third, more appropriate alternative, for charging him for disturbing the peace.
There is no question that under the laws of many states as they exist today, including my state of Ohio, that it was appropriate for the officer to arrest for DUI/DWI given the circumstances. From my experience, officers would also charge for disturbing the peace as well.
The police officer does not have the authority to do what you are stating Patrick. To do so would be to put his career in jeopardy. Why should a police officer be expected to do that? What you are asking for is already covered in the judicial system, it lies at the prosecutor’s level. It is their task in the judicial system to determine what charges are appropriate given the circumstances. This is not, and should not be the role of the police officer. Would you want a police officer who feels that illegal gun possession is silly to let somebody go? Who about date rape? No, for serious offenses (of which drunk driving is one), police officers are expected to enforce the law and make the arrest. A police officer is expected to enforce the law without bias towards to person, and without the interference of their own personal beliefs about the law in question.
For example, I believe that prostitution laws are absurd. But I still arrest prostitutes. If a public referendum were to be offered asking if prostitution should be made legal (with some guidelines to keep it off the street) I would probably vote yes. This is the seperation of the officer’s public and private life and is a very important part of a police officer’s training.
I don’t know about Florida, but under California law, when an officer stops a car, that is an arrest. If the officer believes that a violation has occurred, he may take the driver to jail. The driver has the option to promise to appear at a hearing regarding the violation in exchange for not being taken to jail.
The Ryan: I cannot speak for all jurisdictions, but as a general rule that is true for some violations, but would be rarely true for drunk driving. When an officer gives you a citation for speeding for example, he will ask you to sign it, and tell you that you are agreeing to is to attend a hearing usually on a specified date. He will also instruct you that this is not a plea of guilt. If you refuse to sign the citation you can be taken to jail, and within 24 hours taken before a judge. However, this is not true of all offenses, and again unlikely to be true for drunk driving.
BTW, just to be picky, when the officer stops your car, you are not under arrest at that point. You are simply stopped and detained. It is an important distinction since your rights are different when under arrest vs when you are simply detained. Once he tells you he is giving you a citation for speeding (or whatever) then you are under arrest.
Glitch, you and I are going to continue to disargee about this. I think the problem is that you are reading too much into my response. Let me try again: given the current what I call absurd condition of the DUI/DWI laws, the officer under the hypothetical you gave would be entirely justified in arresting and charging the miscreant for two separate charges: both DUI/DWI and for disturbing the peace, and most likely would do so.
The point I was trying to make, and which upon re-reading my posts I can see I may not have conveyed very well, was that the officer’s choice you set out was wrong. Well, let’s say it was “incomplete” and not wrong. You said he had a choice of charging for drunk driving or letting him go. That’s another way of saying he had a choice between either charging for drunk driving and being derelict in his duty. I was trying to point out that not that the officer should let the radio-player go and get himself into trouble, but rather that it would be better for all concerned, IMHO, if the officer could just charge the fellow for the what the complaint was about in the first place, ie, making too much noise in a public space.
Note that you shouldn’t read into my answer that officers don’t have a duty to investigate the miscreant once they’re on the scene, ie to run his record for outstanding warrants and so on. What I am saying is that the public faces very little danger from drunks playing car radios in parking lots, other than the noise.
You are correct that if the officer failed to charge for the DUI/DWI under these circumstances he would be upbraided by his supervisor, but then he would also be reprimanded if he failed to charge for disturbing the peace.
As for date rape, what about it? I didn’t say anything about date rape, did I? For the record, I am against rape, and in favor of Apple Pie and Baseball. So what?
As for the role of the police vis-a-vis prosecutors in charging offenses, there’s the ideal system you set forth and then there’s reality. At the municipal court/misdemeanor level, which is the court where most drunk driving offenses are handled, prosecutors that clip the police’s wings by frequently reducing charges the police want to bring don’t remain prosecutors too long. They work hand in glove with each other rather than maintain a formal hierarchy. Typically the police bring every charge they can possibly muster even if its a strech. That way, at plea bargain the D.A. can give up the charges that are an overreach and make it look like the state is making a concession, when in fact its not. Its only giving up a paper charge that shouldn’t have been brought in the first place.