Hee hee hee… I used to work for a company that did photo radar and red light cameras… I have heard every whine in the book!
(questions for anyone)
Why should anyone submit to a FST? What happens if you refuse?
Seems to me that either the LEO has probable cause, and you have to submit to the breathalyzer, or he has none, and you should be free to go. Performing the FST can only work against you.
Why would a LEO refuse to skip the FST, if you were willing to submit to a breath test?
If the limit is zero, wouldn’t that mean everyone would register as drunk?
Because when the matter goes to court, the accused might dispute the cop’s testimony that he agreed to skip it. After all, the person may be under the influence and later may genuinely not remember saying it, or could say that he was just joking. Better for the officer to follow established procedures.
For certain categories of drivers, the limit is zero, meaning they can’t exceed a 0.00 BAC.
Not legally, anyway. They are not admissible as evidence of intoxication. They are allowed to be used to give the officer an idea of impairment (after a FST)
You’re confusing the Portable Breath Tester with the Intoxilyzer machine. Refusing to take a PBT, in most jurisdictions, is not the same as refusing the breath/blood/urine test. It’s equal to refusing the sobriety test.
The exception is when a minor is involved. Driving or not a minor cannot have any alcohol in their system (unless, of course, they aren’t driving and are accompanied by their parents with whom they were drinking). The level of impairment is a moot point, so a FST unneeded… The PBT simply confirms the officers detection of odor of intoxicant.
In Canada, refusing the road-side test is a crime, carrying exactly the same penalties and criminal record as refusing to give a sample at the detachment.
In many jurisdictions intoxication is a valid defense. I wonder how many people have tried to fight an OWI charge by saying they were so damn drunk they had no idea they were driving a car.
True story: When I used to work for a different department than I do now I was standing outside a courtroom once awaiting the case for a ticket I wrote. Another case involving a DWI was going on. The defendant testified he couldn’t have been drunk after only 5 drinks. He then took some liquor out of a bag and proceeded to drink it down. He then insisted the Sheriffs deputy give him a sobriety test. The judge actually let this go on. It was a laugh riot. The guy could hardly stand! Needless to say that defense failed!
This is an absolutely true story. It was in the local paper. If I can find the article I’ll post it.
Hey! That’s a funny strip, Taber. I’m putting it my bookmarks. Thanks.
You are arrested and go straight to jail for booking.
The thinking being- if you have nothing to hide, why would you refuse? It’s not right but that’s what they go by.
It doesn’t work exactly like that. There has to be probable cause for an arrest. In many places you can refuse the FST and that in itself is not an arrestable offense.
By that statement I could arrest you for not allowing me to search your car when I have no other PC. We’re here to fight ignorance, remember?
And in some countries you can be arrested for refusing to allow the police to search your vehicle- because, by refusing to allow the police to search your vehicle, you’ve just given them probable cause to suspect you’re either A) Hiding something or B) “One of those annoying pains in the ass who keeps harping on about their rights”, which means they need to get a warrant to search your car, and may very well take you into custody while they do it.
I’ve had the police ask to search my car before (when I was a teenager), and I’ve always replied “Go right ahead.” And every time- except once- the police officer said “That’s quite alright sir, have a pleasant evening” and let me go on my way without searching the vehicle. The other time he asked me to open the boot, shone his torch in there and under the driver and passenger seats, saw that I didn’t have a kilo of crack or a case of AK-47s in the boot, and sent me on my way.
Now, if I’d said “I’d really prefer that you didn’t” or “No, you can’t”, you can bet that it would have turned into one of those situations where the police officer decides that the other person is “acting erratically” or “was showing signs of intoxication” or “behaving suspiciously” and then it’s warrant time, which of course gets you labelled as a pain in the ass, to be pulled over for every minor infraction or defect for the foreseeable future.
The police that I know are generally good people, but they spend their entire working lives having people calling them “pigs” (and all manner of other un-GQ suitable names), and so if you are friendly and polite- not even respectful so much, but certainly courteous- then they’re not going to be as inclined to give you a hard time… at least, in my previous experience, anyway.
Bingo.
Yes. You had probable cause for the stop, the search could flow from it as stated above- “I then observed that the driver seemed evasive and nervous, and kept glancing towards the trunk in a suspicious manner.”
Maybe that doesn’t happen where you live, but it happens here. Sure, it probably won’t resuolt in a conviction, but arrest? You can be arrested for anything (or nothing, as the case may be).
Who cares? I’m not going argue about police procedure in other countries.
Could you please cite cases where arrests are consistantly being made for things that don’t result in convictions? If I kept making arrests that didn’t result in convictions I’d be handed my ass.
My previous post stands: refusing a FST is not probable cause for arrest. You have the right to refuse that test!
So what you’re saying is that the implied consent refers to the more accurate test that happens at the station after an arrest has been made?
Yes, you have the right to refuse the test. You will then be arrested for suspicion of DUI. That is how it works. They don’t have to test you to arrest you! It’s mostly to shore up the DUI case later.
You will also lose your license pending a hearing! Seriously.
Cite? I will try and find the code, but hubby was a DA and saw it every damn day.