As a cop who has made many, many DUI arrests, let me try to cover a few things brought up in this thread.
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[li]Obviously, the most important point is that law vary widely from state to state. Talk to someone who knows the law in your state.[/li][li]In Washington, you can refuse the breath test, but there are penalties if you do (your license will be suspended and the refusal can be used against you in court). Here, you can’t request a blood test as an alternative. Blood tests are only used if the person is physically incapable of giving a breath test, or in some other special circumstances (such as in a vehicular homicide case, when blood is taken and can be taken without your consent).[/li][li]You have the right to speak to attorney before taking the test, but we don’t have to wait for the attorney to actually come to the station and watch the test be administered. If the attorney can be there within 30 minutes, we will allow it.[/li][li]Here, every attorney I’ve ever dealt with advises the driver to submit to the breath test but not to answer any questions. The lose of license is nearly impossible to fight, but DUI cases present a lot more opportunities to fight or at least to work a deal.[/li][li]Even if you have to option of a blood test, I wouldn’t recommend it. The results are nearly impossible to challenge because of the testing performed, and they often read a tiny bit higher than the breath test results.[/li][li]Delaying taking the test (either by stalling, requesting a blood test if that is an option) is really useless. No matter how long it takes to get the reading, your BAC level at the time of the stop can still be calculated by a technician.[/li][li]In Washington, the preliminary breath tester (the little handheld unit) can be admitted only to establish probable cause. So in court I can testify that the driver submitted a breath test and the results indicated he/she was over the legal limit, but I cannot state what the actual reading was.[/li][/list=1]
I think that covered most of the questions for which I can offer any answers.
Is that admissible? It seems to me that unless you’ve done a study of the metabolic rate of the particukar driver, there’d be insufficient foundation to admit testimony along the lines of, “At 10:00 his BAC was .07; we therefore know that at 8:00 it was .11.”
In Virginia, it would not be admissible in the Commonwealth’s case-in-chief.
Not only is it true, it happened to my wife in the spring of 2001.. It wasn’t just mouthwash, though… Mrs. RickJay blew over after consuming one of those Listerine breath-freshener strip thingies; she blew like a .15. The officers at the scene were nice enough to try it themselves after consuming one of her Listerine thingies, and sure enough, the cop blew way over the limit, so they had a laugh about it and let her go. Apparently this is something they knew about (although they had not encountered it with a breath strip thingie, just with regular mouthwash.)
Absolutely 100% true story, I swear to God. Anyone who thinks it’s an urban legend can e-mail me and I’ll provide the times, dates, and relevant witnesses.
Here (Ontario) refusing the test is a crime. Had Mrs. RickJay refused she would have been charged and probably convicted. By taking the test she avoided that charge, and it was easy enough to explain the test result.
This is an area that varies from state to state. In Texas, your right to a lawyer hasn’t attached when you have the option to take an intoxilyzer test, so asking to see a lawyer is refusing to take the test. What do you think that your lawyer would know about your state of intoxication that you don’t already know?
I took only a couple minutes to look at this, so take it for what it’s worth, but in Felts v. Com. Not Reported in S.E.2d Va.App.,1999. Oct. 5, 1999, the Appellate Court O.Ked the use of expert testimony regarding the defendant’s blood alcohol level at the time of a fatality accident, based, in part, on a blood test taken more than 2 hours after the accident and the testimony:
The Court also talked about Tipton v. Com. 444 S.E.2d 1 Va.App.,1994, which seemingly allowed the same type of testimony.
I’m only bringing those out because, in Iowa and Illinois, at least, Badge’s statement is correct.
One doesn’t call a lawyer to comment on one’s state of intoxication. The right to speak with an attorney is enforced by law so that those under suspicion of a criminal act can make informed decisions about how to respond to demands by law inforcement and prosecutors. Innocent people under suspicion of a crime need lawyers even more than the guilty.
I think he’d know more about the legal implications of refusing Vs. submitting to a BAC test, about whether I have a choice of which test to take, and about which test I should choose if I do have a choice.
But one doesn’t always have a right to an attorney when deciding whether to take a breath test. After all, you aren’t being interrogated. If you aren’t intoxicated, take a breath test. If you are intoxicated, don’t. So, in Texas, the only thing a defense lawyer could do is comment on whether you are intoxicated, then bill you for the opinion.
He’d likely know these things, but he can’t get to you to comment upon them. In Texas, you don’t have a choice of what test to take unless law enforcement presents that choice. Before you are given that choice, you are read a statement that tells you the consequences of refusing a test. But, you still don’t have a right to a lawyer, and it still hinges on whether you are intoxicated. So, I still say that the only thing the defense lawyer could help you with is helping you decide whether you are intoxicated.
Sorry, the State of Texas is happy to let those accused of driving while intoxicated to decide on their own whether to take a test.
I say, be polite, take the test, blow a world-recod BAC and call a lawyer.
Tell the lawyer that gee, you we embarassed to mention at the time of the test but you were so nervous waiting for the test that you vomited and swalled your own sill without anyone noticing.
This would (I think) violate the test protcol and so the test result.
Not to hijack the thread, but since you asked directly, Monty, it’s only polite to respond. Among the reasons given by the police were: failure to use turn signal while making a lane change (on a road where the lanes merge), suspected DUI (swerving to miss a cat at 2:00 AM), broken brakelights (am I the only one who downshifts to slow down sometimes), not wearing a seat belt ( back when it was supposed to be a secondary offence only. ) The others were completely legit, though minor: two miles over speed limit, not using my turn signal for a lane change,etc.
Strangely, all this started after being pulled over by some undercover cops (for a broken license plate light) and asking for their badge numbers when they let me go, after over a hour of questioning and searching my car. That was the first time I was stopped and I was young and dumb. The other twenty-four stops happened in the same city. If I was paranoid, I might actually have thought they were out to get me;)
Peace-D.E.S.K. (Who still respects the job 99% of the police do)
I’m skeptical that I wouldn’t have the right to ask a lawyer this question. Do you have a cite for this? If there’s no decision to be made, why would they even ask me? Asking to speak with a lawyer certainly shouldn’t hurt, and maybe (IANAL!!!) being refused the right to speak with a lawyer may get the breathalizer result thrown out.
At any rate, for those of us who don’t live in Texas, the question still (mostly) stands. Badge says (in his state, presumably) that I would have the right to speak with an attorney first. Which answer is more common? More importantly, which answer is correct in Michigan?
Here’s anothe Urban Legend: supposedly, ifyou are stopped by the police (under suspicion of DUI), you can getout of the alcohol test by doing the following:
-you immediately announce to the arresting officer that you are experiencing chest pains, and you request him to call an ambulance
-you tell him that you feel dizzy, and ask to sit down
The officer is then obligated to call an ambulance…and you may or may not escape the alcohol blood test.
The hospital will keep you for at least 6 hours,by which time your blood alcohol has reached legal limits.
Not recommended, but it might work!
And the hospital might do blood tests to assess your condition. One test might be your alcohol concentration. The state will then subpoena that result, allowing them a rather easy prosecution should they decide to pursue.
GRIFFITH v. TEXAS, 55 S.W.3d 598 (Tex.Crim.App. 2001)
That’s just the one case I found after a quick search. The Court of Criminal Appeals is the court of last resort in Texas on criminal matters.
The decision is whether you will take the test. Unless you’ve killed someone, it is unlikely that your state will force you to take a test against your will. There is no decision that a lawyer can help you make - he doesn’t know your level of intoxication either, unless you take a test.
Texas uses Intoxilyzers. Refusal to speak with a lawyer will not render the results inadmissible, because there is not right to a lawyer, yet.
In Virginia, a person arrested for driving under the influence within two hours of the offense is presumed to have consented to a blood alcohol test. Felts stood for the proposition that even after the two-hour limit, although the Commonwealth cannot rely on the statutory presumption, they can present other evidence - including a description of the accident and a toxicologist’s report - to prove intoxication.
What I meant to do earlier, and should have been more clear on, is to question whether a toxicologist’s expert extrapolation backwards in time can give the Commonwealth the presumption of intoxication. I agree that the prosecution can introduce an expert opinion about what the BAC would have been four hours ago… but can they then bootstrap that opinion into a guilty finding based on the statutory presumption?
Felts (and Tipton, I might add) say ‘no’. It’s clear from Felts that:
(Emphasis mine).
So I certainly could have phrased my question a bit better – but the key element is the availability of the statutory presumption if you get BAC evidence by extrapolation.
I guess I’ll buy your caveat, Rick, but it was a poorly worded response. The presumption of intoxication that exists if the BAC is over .08 is no longer valid, but they do allow an expert to testify as to the defendants approximate BAC at the time of the driving. They don’t have to do a study of a particular driver’s metabolic rate to be able to testify that “At 10:00 his BAC was .07; we therefore know that at 8:00 it was .11.” and it would, in fact, be admissible in the Commonwealth’s case-in-chief, which is contrary to what you said. The State could not avail themselves of the presumption, but they certainly can use the testimony to show actual intoxication.
This is what my lawyer told me after I was stopped for DUI:
In my state, you can refuse the field sobriety and breathalyzer tests, but the penalty is automatic 1 year revocation of driver’s license. The penalty for 2nd DUI conviction is also 1 year DL revocation. Thus, you have nothing to lose by refusing the tests, and it is harder for them to convict you without the results.
You would not want to refuse the tests if 1)you are not drunk or 2)it is your first DUI stop, in which case, even if you are drunk, a conviction results in only 90 day revocation. Of course, there are other considerations like criminal record and insurance.
The other situation where I have heard lawyers generally say it is wise to refuse the tests is if you are drunk, have an accident and kill someone. But I think they can force you to give a blood sample anyway, but if you can delay that test long enough, you may pass.
Only problem is, if you say you have chest pains, you’re guaranteed to get blood drawn to check for cardiac enzymes. These enzymes are produced by muscle damage caused by an MI. Anyway, blood will be drawn, and it’s pretty likely they’ll check a medical blood alcohol, as well.
Am I the only one disconcerted by the amount of effort put forward in this thread to give information on bypassing a valid, and quite important, law. How’s about we just don’t drive if we’re drinking? Is that so tough?