Breathalyzer "not admissible in court" -- say what???

[Kevin16587]

Getting back to the original question... From what I understand the ones they use in the field can not be calibrated and can not be used as evidence... The field ones as stated are there to give the police further PC to get you to the one they can use for evidence...

That said, in some jurisdictions there a DUI specialized cars or trucks, that have a "hard mounted" machine that can test you right there... think DUI checkpoints.

I have done a fair amount of training to the public regarding this topic and I always end up spending a lot of time talking about it because of all the questions. I realize it can be a bit confusing.

I've never seen the Live PD show but I think the deputy mentioned in the OP either misspoke or was confused about the testing equipment.

The ones used on the side of the road before the arrest are called a preliminary alcohol screening (PAS) device and are considered another field sobriety test used to determine the level of impairment. Their results are admissible in court, but there is no physical sample retained. Those devices are not calibrated by the law enforcement agency. Their accuracy is checked by the agency and if the result is outside established parameters they are sent to a lab that actually changes the calibration. My agency has these available. Note, it says it retains a memory of the result, but there is no printout or sample to retain for later retest. Edit: there is a printer available but it's still not considered evidence. It probably has something to do with certification and/or case law.

http://www.intox.com/p-560-alco-sensor-iv-with-memory.aspx

After the arrest, the person arrested is REQUIRED to provide a sample of their blood alcohol content or BAC. If they choose to provide a breath test they provide two EVIDENTIARY samples of their breath. Their use is very similar to the PAS test but there is a printout that is considered EVIDENCE. Again, the law enforcement agency does not calibrate them, but does check the accuracy. The arrestee is either transported to a facility that has the machine or use a portable one. The portable ones are in a case the size of a medium sized suitcase.

My agency has these >>> https://www.draeger.com/en-us_us/Al...sting/Alcohol-Screening-Devices/Alcotest-7510

The cool thing about the one mentioned above is it can be used as both a PAS and the evidentiary test because it is certified to do so and it produces a printout of the results.

Most officers I know prefer the top mentioned device to use on the side of the road and transport the arrestee to the station to use the the second one for the printout. The intoximeter is smaller and easier to transport in the patrol car.


Sent from my iPad using Tapatalk

 

[Kevin16587]

Getting back to the original question... From what I understand the ones they use in the field can not be calibrated and can not be used as evidence... The field ones as stated are there to give the police further PC to get you to the one they can use for evidence...

That said, in some jurisdictions there a DUI specialized cars or trucks, that have a "hard mounted" machine that can test you right there... think DUI checkpoints.

I forgot to mention, officers, at least in CA are required to provide a PAS admonishment to suspects prior to administering the roadside test. Basically we tell them that the PAS test is another tool we use to determine their level of intoxication and it's basically optional. We continue by telling them that if they are eventually arrested for DUI they will be required to provide a "chemical test" of either blood or breath. This might have been the conversation the OP witnessed on the TV show.

This is a pretty good article from a (gasp) DUI defense attorney.
http://www.robertselliottdui.com/articles/blood_alcohol_content_bac_in_dui_caces.pdf


Sent from my iPad using Tapatalk

 

[ircphoenix]

The DA got rejected?

*DA reject.

Meaning the DA wouldn't file.

 

[Matthew]

About 20 years ago the Missouri Highway Patrol set up a sobriety checkpoint to snag cars after they came out of a KC Chiefs Monday Night Football game. The deal was, they set up the checkpoint on west-bound lanes, so the vast majority of the cars they were stopping were KS drivers, and that didn't sit well with a lot of people. The numbers I was able to Google-up show that about 4500 cars were stopped, traffic was backed up for 17 miles, the delay was around 2 hrs, and there were about 20 arrests. Nice work, fellas.

 

[FastEddieB]

Any one of those 20 arrests may have avoided an accident with tragic, life-changing consequences.

Don't just shrug them off so nonchalantly.

 

[Matthew]

Any one of those 20 arrests may have avoided an accident with tragic, life-changing consequences.

Don't just shrug them off so nonchalantly.

Maybe. 20/4500 is a 0.4% hit rate.

I wonder what the number of drunks on the road for any given time normally is?

 

[tawood]

Maybe. 20/4500 is a 0.4% hit rate.

I wonder what the number of drunks on the road for any given time normally is?

1 out of 6 at 2 a.m.

 

[silver-eagle]

The OP was correct. It was a LIVE PD Rewind from Saturday night (before the real LIVE PD). The officer said it wasn't admissible in court but they still had to do it. In this case, were I the drunk, I'd have answered the door with a bottle in my hand.
My advice is exercise your right to remain silent right after, I'd like to consult an attorney.

 

[Ventucky Red]

I forgot to mention, officers, at least in CA are required to provide a PAS admonishment to suspects prior to administering the roadside test. Basically we tell them that the PAS test is another tool we use to determine their level of intoxication and it's basically optional. We continue by telling them that if they are eventually arrested for DUI they will be required to provide a "chemical test" of either blood or breath. This might have been the conversation the OP witnessed on the TV show.

This is a pretty good article from a (gasp) DUI defense attorney.
http://www.robertselliottdui.com/articles/blood_alcohol_content_bac_in_dui_caces.pdf


Sent from my iPad using Tapatalk

Kevin, thanks for taking the time to provide your first hand information... much appreciated..

 

[bluerooster]

In Colorado you can refuse the portable breathalyzer without penalty, but if you refuse to submit to the one at the station after you're arrested you automatically lose your driver's license for a year.

Same here in GA, but you can keep your license by going to court within 10 days. It seems that it's unconstitutional to administer punishment
for not giving evidence against yourself.

 

[FastEddieB]

Maybe. 20/4500 is a 0.4% hit rate.

I would just say, in my opinion if a single DUI was prevented from being in a tragic accident, it was worthwhile.

 

[Kevin16587]

Kevin, thanks for taking the time to provide your first hand information... much appreciated..

My pleasure. I enjoy a good discussion about this stuff. Maybe I'll see you in Camarillo for the AOPA fly in. I promise I won't bring a PAS device.


Sent from my iPhone using Tapatalk

 

[denverpilot]

I saw that too. The cop goes to the guys house and asks him, "have you been drinking since the accident?" The guy says "no". Talk about a time when it would have been best to remain silent!

Seriously.

In the Police Acadamy, we were taught to NEVER ask "Do you know why I stopped you?"

Get the license and registration and proof of insurance in hand, then politely inform the driver the reason for the stop. Otherwise, the whole stop can degenerate into an argument about whether it was justified.

We were also taught that the infraction should determine whether or not you ticketed, NOT the driver's attitude. But cops, being human, almost always consider attitude in the big picture. I know I did.

The phrase being taught and used around here is: "Tell me what you think happened back there."

I find it slightly annoying. It assumes the driver must comply and incriminate themselves.

But anyway...

Humor goes a long way on a traffic stop, on both sides of the coin.

...

Checkpoints are usually controversial. My agency has policy that stated the max wait time in traffic is 3 minutes. If traffic backs up we skip cars to get the traffic flowing. The power of check points is not in the number of arrests made, but rather in their deterrent effect.

Humor is good. Definitely.

Not a fan of checkpoints. I think they're mostly PR, and while they do some good as a deterrent, they usually just annoy orders of magnitude more folks.

I like the States that have the "must advertise/notify the public" checkpoint laws. Checkpoints planned well in advance and plenty of notice so you can avoid them. For the LE's part, and making their case a bit for them, there's STILL a few drunk idiots caught at such checkpoints, but at least the rest of us can just navigate around them.

The vast vast vast majority of the time, your best option when being investigated for ANYTHING is to SHUT UP. The joke goes...

"What are all these guys in for?"

"Talking."

This video is worth the 45 minutes to watch it.

You can literally talk yourself into prison. Don't.

I worked as a dispatcher. I have LE friends. They all know I would respectfully and politely decline to say ANYTHING to them the vast majority of the time without an attorney present.

But...

There's times when it's just smarter to talk.

A few months ago, I was pulled over by an unmarked State Trooper. Heavy traffic, busy intersection, I immediately saw his grill lights and pulled into a parking lot getting him and me completely out of the busy road.

He came up and used that line I mentioned above after asking for license and registration and running my plates.

My answer, instead of saying politely that I don't answer questions, and to please let me know what I'm being charged with ... which would be my usual response, because I don't speed and I rarely have contact with traffic enforcement for that reason, instead was...

"I cut you off. I should have stopped, but I misjudged the timing, I don't drive this vehicle very often in traffic, and we just came from a funeral so I'm a little distracted, and I owe you an apology."

He could tell I wasn't making up a story, he could see we were still dressed for a funeral and the information sheet from the funeral was lying in the center console. He knew I'd also gotten the hell out of the bumper to bumper traffic going 55 on the main road for him, and I'd handed him a confession on a platter. He could have written the ticket and I'd have been fine with it.

He didn't. He told me to be more careful and get home safely, and asked how far we had to go, and handed me back my stuff.

I thanked him and we talked a little about that I used to dispatch and that I thought some of the stuff folks were doing to cops these days was total crap, and that I had heard about the officer killed not far from where he pulled me over when a big rig ran him over during a routine traffic stop, and I thanked him for doing his job.

Shutting up always helps you more than the cop. 99.9% of the time, just shut up. But sometimes, you aren't going to make it any better by shutting up. I willfully chose to make it worse. A confession meant a ticket. I didn't care. I wasn't going to fight it if I got it anyway. I cut the guy off bad, and knew it.

It doesn't rise to the level of the phrase "throw yourself on the mercy of the court" or anything that heavy, but I wasn't going to lie to the guy that afternoon. Seemed pretty useless.

 

[Matthew]

I would just say, in my opinion if a single DUI was prevented from being in a tragic accident, it was worthwhile.

I get it, I understand.

There is always the tradeoff; how much enforcement is enough, how much is too much. Can't have 100% checkpoints 24/7. That's a daily equation, not just on that night.

 

[Sundancer]

Do you see any downside to politely asserting your 5th amendment right not to answer that question?

Honestly, no - but my personal vanity is such that I'd rather own it, vice whining or weaseling - or, pretending like I don't know. If it was clear from the start the cop was an azzhat (10% of ALL professions are, right?), I might go with "just the facts".

Closest to a WTF was driving home from an airport on a week night, 2:00 AM; I'd left a rural MD airport, heading back to the DC suburbs. I was five MPH over, but I was pretty sure the young cop was looking for a DUI - so I knew the "reason" for the stop was a pretext. I was annoyed at loosing 15 more minutes of sleep, but I still thought about him being alone out there, no other traffic, walking up to a car in the dark; whether it was his own initiative, or a "standing order", he was doing the job. Quiet courage. . .

 

[AggieMike88]

One thing I learned from the Live PD show that I wasn't aware of earlier: Texas is one of many states that has an "implied consent" law.

Texas law requires you to take a blood or breath test if you are arrested for a DWI. Texas’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving or boating while intoxicated, then you consent to taking one or more chemical tests of your blood or breath for the purpose of determining your blood alcohol content (BAC). The test must be taken as soon as possible from when you were last driving or boating, and the officer gets to choose which test you take. Once you submit to the officer’s test, however, you have the right to have a blood test taken within two hours of your arrest by a medical professional of your choice.

You can read Texas’s implied consent law in the Texas Transportation Code Annotated 724.011.​

 

[Tarheelpilot]

I realize we all have different experiences and opinions, but in my years in law enforcement I've seen training improve, accountability increase (every encounter is filmed by some "expert" and ends up on the news), liability issues increase, public perception become very polarized, and a growing number of city and county prosecutors on a man hunt so they can add the conviction of a cop to their resume.

Truth be told, I spend way more time assisting people than I do taking people to jail, but that doesn't make interesting news to read or watch. I carry jumper cables, water for radiators, and an EMT bag with oxygen. I've bought stranded motorists gas and/or oil, or a bus ticket. Ive allowed people to use my personal phone or my AAA card to get a tow truck. I've provided rides to countless people to the nearest restaurant, hotel or car repair place. Once, I used my personal pickup truck to tow a couple's RV to their destination 30 minutes away when the transmission on their truck went out. All of my coworkers have similar stories.


Sent from my iPhone using Tapatalk

Sounds like a normal day when I was a deputy. I'm sure you do understand that only the rotten apples get talked about in the news. That said there are some things I would change to limit LEO activities in our country. Generally it is not the individual but the policies I have a problem with.

 

[Matthew]

One thing I learned from the Live PD show that I wasn't aware of earlier: Texas is one of many states that has an "implied consent" law.

Texas law requires you to take a blood or breath test if you are arrested for a DWI. Texas’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving or boating while intoxicated, then you consent to taking one or more chemical tests of your blood or breath for the purpose of determining your blood alcohol content (BAC). The test must be taken as soon as possible from when you were last driving or boating, and the officer gets to choose which test you take. Once you submit to the officer’s test, however, you have the right to have a blood test taken within two hours of your arrest by a medical professional of your choice.

You can read Texas’s implied consent law in the Texas Transportation Code Annotated 724.011.​

I think "implied consent" is pretty common. I don't know if there are any States that don't have it.

 

[Ventucky Red]

My pleasure. I enjoy a good discussion about this stuff. Maybe I'll see you in Camarillo for the AOPA fly in. I promise I won't bring a PAS device.


Sent from my iPhone using Tapatalk

I am parking planes on Thursday morning and slinging hash on Friday morning.... I'll PM you my cell for some coffee if you're up to it...

John

 

[sferguson524]

My response to that question for more garden-variety traffic violations has always been, "Actually, officer, I don't. I was kind of hoping that you would." It worked pretty well in New York City. Make the cop laugh, and chances are you'll just get a warning. Up here, I don't think it would go over so well.

I've been pulled over for suspicion of DUI several times when performing services at bars (fixing POS systems mainly). Apparently simply pulling out of a bar parking lot is enough probable cause in some officers' minds. Those stops never got any further than my explanation that I was working there, not drinking there. It's still annoying, though. It makes a mockery of the whole concept of probable cause.

I feel the same way about DUI roadblocks. I cooperate because it's the path of least resistance, but the idea that the police can block entire roads and cause traffic jams that stretch for miles simply because they suspect that there exists the possibility that some as-yet unidentified person might have been drinking irks me.

Rich

Girlfriend and I got caught in a roadblock on St. Paddys day.. I foolishly decided going out on the LV strip was a good idea..... the interaction consisted of the cop apologizing for the backup, asking me if i'd been drinking (i had, but not for a few hours), and thanking me for participating

 

[Sundancer]

I would just say, in my opinion if a single DUI was prevented from being in a tragic accident, it was worthwhile.

I dunno. . .it sounds good, but a two hour backup for 17 miles? I don't want to be THAT safe. Risk is part of being alive, and being (somewhat) free. But I understand people can have diffrent thresholds. . .

 

[denverpilot]

There's a new trend forming I noticed where political activists are flooding government social media in the comments instead of arguing with the other activists directly.

Some damned funny stuff in those and the government agency can't delete them, 1st Amendment and all...

Especially funny are the coordinated comment attacks on PD social media outlets when they brag about revenue from traffic stops.

Normally I'd say the lawyers and the system would just make some laws against it when it annoys them, but in this case, I doubt any of them will take on the 1st...

Be fun to watch if they try, though.

 

[AdamZ]

Getting back to the original question... From what I understand the ones they use in the field can not be calibrated and can not be used as evidence... The field ones as stated are there to give the police further PC to get you to the one they can use for evidence...

That said, in some jurisdictions there a DUI specialized cars or trucks, that have a "hard mounted" machine that can test you right there... think DUI checkpoints.

^^^^^^ This is exactly correct in PA. The road side breat test units are called PBTs ( Preliminary Breath Tests) in Pennsylvania. They are only used to determine probable cause to arrest and then request the driver to submit to a test of blood or breath ( on a calibrated machine at the police dept) Most jurisdictions where i practice rely more and ore on blood tests usually done at a Hospital ER. I have not see the "specialized cars or trucks here"

I have done a fair amount of training to the public regarding this topic and I always end up spending a lot of time talking about it because of all the questions. I realize it can be a bit confusing.

I've never seen the Live PD show but I think the deputy mentioned in the OP either misspoke or was confused about the testing equipment.

The ones used on the side of the road before the arrest are called a preliminary alcohol screening (PAS) device and are considered another field sobriety test used to determine the level of impairment. Their results are admissible in court, but there is no physical sample retained. Those devices are not calibrated by the law enforcement agency. Their accuracy is checked by the agency and if the result is outside established parameters they are sent to a lab that actually changes the calibration. My agency has these available. Note, it says it retains a memory of the result, but there is no printout or sample to retain for later retest. Edit: there is a printer available but it's still not considered evidence. It probably has something to do with certification and/or case law.

http://www.intox.com/p-560-alco-sensor-iv-with-memory.aspx

After the arrest, the person arrested is REQUIRED to provide a sample of their blood alcohol content or BAC. If they choose to provide a breath test they provide two EVIDENTIARY samples of their breath. Their use is very similar to the PAS test but there is a printout that is considered EVIDENCE. Again, the law enforcement agency does not calibrate them, but does check the accuracy. The arrestee is either transported to a facility that has the machine or use a portable one. The portable ones are in a case the size of a medium sized suitcase.

My agency has these >>> https://www.draeger.com/en-us_us/Al...sting/Alcohol-Screening-Devices/Alcotest-7510

The cool thing about the one mentioned above is it can be used as both a PAS and the evidentiary test because it is certified to do so and it produces a printout of the results.

Most officers I know prefer the top mentioned device to use on the side of the road and transport the arrestee to the station to use the the second one for the printout. The intoximeter is smaller and easier to transport in the patrol car.


Sent from my iPad using Tapatalk

Pennsylvania is some what similar but our PBTs or as you call them in CA PAS results are not admissible it is only used to determine probable cause for an arrest. The PBT/ PAS is probably IMHO the most reliable of the field sobriety tests which are not great. Do you use the HGN Horizontal Gaze Nystagmus test in CA?

 

[Kevin16587]

^^^^^^ This is exactly correct in PA. The road side breat test units are called PBTs ( Preliminary Breath Tests) in Pennsylvania. They are only used to determine probable cause to arrest and then request the driver to submit to a test of blood or breath ( on a calibrated machine at the police dept) Most jurisdictions where i practice rely more and ore on blood tests usually done at a Hospital ER. I have not see the "specialized cars or trucks here"



Pennsylvania is some what similar but our PBTs or as you call them in CA PAS results are not admissible it is only used to determine probable cause for an arrest. The PBT/ PAS is probably IMHO the most reliable of the field sobriety tests which are not great. Do you use the HGN Horizontal Gaze Nystagmus test in CA?

Yes, we use the three standardized field sobriety tests. HGN, walk and turn and one leg stand. We also use several other approved FSTs such as Romberg, hand pat, finger count and the PAS.


Sent from my iPhone using Tapatalk

 

[comanchepilot]

Your assumption is correct. A portable breathalyzer is only an additional way to establish probable cause for a DUI arrest after doing field sobriety tests. They are reliable and calibrated, but not to the same level as the intoxilyzers used at the station. As such, they are not admissible in a court trial by themselves, but simply a part of the bigger picture of building the probable cause.

Which is why you should NEVER:

1) discuss your drinking of alcohol with a police officer;
2) Perform a field sobriety test
3) consent to a preliminary alcohol test
4) permit an officer to shine a flash light into your eyes.

None of those are required in ANY state as a condition of driving. . . . and if a state decides to pass them as required . . . there is clear federal constitutional law that they are not. . . .

@Kevin16587 - I've been in court listening to a police officer claim that he pulled someone over because he could NOT develop probable cause - and used the failure of the driver to violate a single vehicle code section as evidence of guilt of something as proof of his reasonable suspicion a crime was being committed. The judge smiled and said that while the effort was admirable, that the failure to commit a crime was not yet admissible as proof one was being committed. . . . .the lawyers were all laughing at that one.

 

[comanchepilot]

@Kevin16587 - how do you handle guys like me who refuse to answer any investigatory questions - all I say is:

"Officer, I respect your job and your badge and as a result I refuse to respond to any investigatory questions, and stand on my 5th amendment rights."

I ALWAYS get the ticket - which is fine - because I've never been convicted of a moving violation - ever.

I've also gotten trapped [literally] at a DUI checkpoint which was clearly illegally set up. There was no way to avoid it coming off a freeway off ramp. No way. The only turn off was a dead end. At that one I exercised my right to remain silent and handled the officer a pre-printed card which explained I refusing to respond to any investigatory questions, and refused all searches, exercising my 5th amendment right to be silent.

The officer exercised his pull over authority where the Supervising sergeant came over and tried to convince me to respond because it was there job. They then got angry, and insisted that I leave the vehicle and perform the FST, which I refused. I then asked the sergeant if I was being further detained for insisting on my rights, and to state the reasonable suspicion for my detention. That got the officer to tell me to just shut up. so I complied.

I stood at the rear of my vehicle in clear view of the camera and stated my position clearly and unambiguously.

After they detained me for a while, the sergeant asked the officer 'is he drunk?' The cop said: 'prob not.' Any warrants? 'Nope'. The Sergeant then said 'kick him.' And the Officer started lecturing me about cooperation. I thanked him for return my vehicle and the next day filed a complaint concerning the conduct. I asked that the tapes be sequestered. None of it happened - the tapes miraculously were 'not available,' and set up log was tainted somehow. I then simply filed a civil rights complaint with the PD over the location of the stop and the conduct of the officers. They both sadly lied through their teeth and claimed they suspected a smell of alcohol coming from the vehicle. Which was a convertible with the top down. Not a single officer on duty was willing to come forward. No one believed the testimony of the officer or the sergeant. But - as happens - the benefit the doubt went to the officer despite having a member of the bar testify as to their actions.

The Chief and police Commission decided that the stop was 'marginally' within standards - but that it was illegally placed. There was no getting around that.

Our settlement agreement was to retrain officers in the proper placement of checkpoints - and to respect invocations of rights and that in such circumstances that they create a log of actions taken to protect the invocation of the right. At least then they need to put the reasonable suspicion real time into the materials developed at the stop.

 

[comanchepilot]

I would just say, in my opinion if a single DUI was prevented from being in a tragic accident, it was worthwhile.

why not just test everybody everytime they start the car up - that would save it too,

Why not a blood test before you can walk to your airplane. . . .

if the test is 'possibly' saving a single life, why not guarantee it. . .

 

[James331]

I would just say, in my opinion if a single DUI was prevented from being in a tragic accident, it was worthwhile.

NO


"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."



Same morons with "the children" type logic often are ok with sending kids who arnt even old enough to legally drink or own a pistol in many states overseas.. to get shot and killed and to shoot and kill other kids to falsely "protect" their "freedom".

Yet... when someone at home is actively attacking their real freedom, attacking America (any attack on the constitution is a true attack on what America really is, and a road block is a clear 4A violation), if the government invokes "save one life" "the children" or any other marketing slogans, those dohdohs are all like "well ok, let me bend over a little further for you...I mean if it could save one life and all"



FAIL

 

[FastEddieB]

I did not like doing DUI checkpoints. I think I maybe was involved with one - we were usually busy doing other stuff.

I already stated upthread that I found something superficially unconstitutional about stopping a motorist without probable cause. But it's legality has been established, if certain guidelines are met, so that's that until the courts rule otherwise. One's opinion of what is and is not a constitutional violation is interesting, but kind of irrelevant.

I was an accident unit for about a year, and that colored how I feel about DUI's. I saw the carnage resulting from their actions, so getting them off the road was a pretty high priority for me.

I've been stopped maybe twice in DUI checkpoints. One must choose one's battles, and I choose to comply with reasonable requests to aid in the greater good. Obviously not everyone agrees.

 

[James331]

I did not like doing DUI checkpoints. I think I maybe was involved with one - we were usually busy doing other stuff.

I already stated upthread that I found something superficially unconstitutional about stopping a motorist without probable cause. But it's legality has been established, if certain guidelines are met, so that's that until the courts rule otherwise. One's opinion of what is and is not a constitutional violation is interesting, but kind of irrelevant.

I was an accident unit for about a year, and that colored how I feel about DUI's. I saw the carnage resulting from their actions, so getting them off the road was a pretty high priority for me.

I've been stopped maybe twice in DUI checkpoints. One must choose one's battles, and I choose to comply with reasonable requests to aid in the greater good. Obviously not everyone agrees.

Just paid government worker said its legal doesn't mean it is, and any layman reading the 4th wouldn't agree with these legal eagles.

And I've seen plenty of carnage, but frankly with freedom comes responsibility, and I'll happy take my chances with all the boogie men the government would like me to fear for the rights the constitution protects.

 

[FastEddieB]

Just paid government worker said its legal doesn't mean it is, and any layman reading the 4th wouldn't agree with these legal eagles.

I believe the issue of the constitutionality of DUI checkpoints has gone up the courts and for now has been ruled constitutional. So its more than a "paid government worker" unless you view the entire court system as being comprised of "paid government workers".

Here's what Wikipedia says:

While the Fourth Amendment (1791) protects people against unreasonable searches and seizures of either self or property by government officials, the use by police of sobriety checkpoints in the US is not prohibited by the Fourth Amendment if law enforcement posts or announces in advance that these checkpoints will occur and at what location. Law enforcement agencies often post a sign during the weekdays when it is only seen by local residents and not by those attending a special event or those that only travel in that area of the city during the weekend to patronize local bars and clubs. These announcements are also sometimes printed in newspapers. Numerous websites host a database of checkpoints that are to occur based on information found in newspapers, the Internet and tips from visitors of such sites. In the 2010s, there are smartphone apps that allow users to report sobriety checkpoints, show them on a map and use the device's GPS to alert other drivers when a sobriety checkpoint is nearby.

Sobriety checkpoints regularly catch much more than just drunk drivers, as those selected to participate in the checkpoint are asked to provide their driver's licenses. As part of the standard protocol, the person's name and identifying information is run through the National Crime Index database, or NCIC, for wants and warrants. If the driver has an outstanding warrant, he/she will likely be arrested. If he/she was driving without a valid license, he/she will likely be cited for driving with a suspended or revoked license. The identity checks could also catch vehicle inspection and registration violations as well. When an individual is stopped for a sobriety check, the officer may also determine that she has probable cause to search the vehicle, which may lead to the officer finding illegal drugs or weapons.

...

The Michigan Supreme Court found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. In the majority opinion, Chief Justice Rehnquist wrote, "In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment."

(bolded mine)

I'm loathe to defend DUI checkpoints - they rub me the wrong way. But at least for now they are legal, according to the highest court in the land.

 

[James331]

I believe the issue of the constitutionality of DUI checkpoints has gone up the courts and for now has been ruled constitutional. So its more than a "paid government worker" unless you view the entire court system as being comprised of "paid government workers".

Here's what Wikipedia says:

While the Fourth Amendment (1791) protects people against unreasonable searches and seizures of either self or property by government officials, the use by police of sobriety checkpoints in the US is not prohibited by the Fourth Amendment if law enforcement posts or announces in advance that these checkpoints will occur and at what location. Law enforcement agencies often post a sign during the weekdays when it is only seen by local residents and not by those attending a special event or those that only travel in that area of the city during the weekend to patronize local bars and clubs. These announcements are also sometimes printed in newspapers. Numerous websites host a database of checkpoints that are to occur based on information found in newspapers, the Internet and tips from visitors of such sites. In the 2010s, there are smartphone apps that allow users to report sobriety checkpoints, show them on a map and use the device's GPS to alert other drivers when a sobriety checkpoint is nearby.

Sobriety checkpoints regularly catch much more than just drunk drivers, as those selected to participate in the checkpoint are asked to provide their driver's licenses. As part of the standard protocol, the person's name and identifying information is run through the National Crime Index database, or NCIC, for wants and warrants. If the driver has an outstanding warrant, he/she will likely be arrested. If he/she was driving without a valid license, he/she will likely be cited for driving with a suspended or revoked license. The identity checks could also catch vehicle inspection and registration violations as well. When an individual is stopped for a sobriety check, the officer may also determine that she has probable cause to search the vehicle, which may lead to the officer finding illegal drugs or weapons.

...

The Michigan Supreme Court found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. In the majority opinion, Chief Justice Rehnquist wrote, "In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment."

(bolded mine)

I'm loathe to defend DUI checkpoints - they rub me the wrong way. But at least for now they are legal, according to the highest court in the land.

And if that's the way it really went down id partially agree.

HOWEVER anyone who's been around a DUI check point knows that's not the way the cookie crumbles.

They put the signs in locations that ether you can't avoid the unwarranted search, OR you need to break a traffic law to avoid the checkpoint, AND and the VERY few properly placarded "DUI checkpoints", well if you do decide you don't want to play their game and make a turn or go around, a cop will launch off and pull you over.

And the result of them breaking these rules they are sposed to follow....nothing, no termination, no judgement against their pensions, nada, so this dog and pony show just keep on turning and crapping all over the constitution.

And the dumb dumbs just keep regurgitating the same marketing line "I likes the check points cuz they be saving lives", funny becuse the majority of the money the police make off the citizens at these things arnt even for DUIs.

 

[ejensen]

In parts of California they used sobriety checkpoints to catch undocumented folks.

 

[James331]

I also bet the same people who are for these checkpoints would have a fit if someone burned a American flag lol

 

[Kevin16587]

Which is why you should NEVER:

1) discuss your drinking of alcohol with a police officer;
2) Perform a field sobriety test
3) consent to a preliminary alcohol test
4) permit an officer to shine a flash light into your eyes.

None of those are required in ANY state as a condition of driving. . . . and if a state decides to pass them as required . . . there is clear federal constitutional law that they are not. . . .

@Kevin16587 - I've been in court listening to a police officer claim that he pulled someone over because he could NOT develop probable cause - and used the failure of the driver to violate a single vehicle code section as evidence of guilt of something as proof of his reasonable suspicion a crime was being committed. The judge smiled and said that while the effort was admirable, that the failure to commit a crime was not yet admissible as proof one was being committed. . . . .the lawyers were all laughing at that one.

Your post is confusing and I don't really understand what kind of scenario you are trying to describe, but it doesn't matter. I don't really care what happens in court after a DUI arrest. I get paid the same whether the case gets dismissed or not. During DUI enforcement, my primary duty is removing impaired drivers from the road. Once I do that, I'm happy. I don't follow up on most cases and only a very small number of them require any of my time in court. Having said that, all of my cases are solid and I don't make stuff up as I go.

I worked in a college/party town for several years and these "educated" college kids tried every trick in the book, including refusing to answer any questions. The same questions will still be asked and the response, or lack of, will be noted. Without any field sobriety tests you are forcing the officer to make the decision to arrest you based ONLY on what he saw before the stop and any other objective signs of intoxication (odor, slurred speech, etc). That could be good or bad for you.

I've had several people submit to a PAS test only to blow just under the legal limit (.08% in CA). In that case they get a stern warning and told what a close call it was.


Sent from my iPhone using Tapatalk

 

[comanchepilot]

Your post is confusing and I don't really understand what kind of scenario you are trying to describe, but it doesn't matter. I don't really care what happens in court after a DUI arrest. I get paid the same whether the case gets dismissed or not. During DUI enforcement, my primary duty is removing impaired drivers from the road. Once I do that, I'm happy. I don't follow up on most cases and only a very small number of them require any of my time in court. Having said that, all of my cases are solid and I don't make stuff up as I go.

I worked in a college/party town for several years and these "educated" college kids tried every trick in the book, including refusing to answer any questions. The same questions will still be asked and the response, or lack of, will be noted. Without any field sobriety tests you are forcing the officer to make the decision to arrest you based ONLY on what he saw before the stop and any other objective signs of intoxication (odor, slurred speech, etc). That could be good or bad for you.

I've had several people submit to a PAS test only to blow just under the legal limit (.08% in CA). In that case they get a stern warning and told what a close call it was.


Sent from my iPhone using Tapatalk

Kevin - there are rules for checkpoints - don't follow them and your arrests all get tossed. I realize you're not the supervising officer - and there are damn few arrests for intox at checkpoints - most are lack of license, expired reg with no license for impound, etc etc etc.

As for the refusal - have you ever encountered someone properly invoke their rights? Because if you continue a stop with zero objective facts concerning intoxication, and relying on a person to cooperate with you to develop those facts, and they don't - well - that can get you fired in this very sad legal environment.

I've actually done the above:

when sober - refuse to cooperate, invoke my rights, refuse a punitive PAS and FST, and absolutely refuse to cooperate with the development of facts. If arrested, I would have blown 0.00.

You're doing your job- I'm doing mine. Obviously with 10-15 officers standing around, I'm not preventing them from finding a drunk in line.

 

[Kevin16587]

@Kevin16587 - how do you handle guys like me who refuse to answer any investigatory questions - all I say is:

"Officer, I respect your job and your badge and as a result I refuse to respond to any investigatory questions, and stand on my 5th amendment rights."

I ALWAYS get the ticket - which is fine - because I've never been convicted of a moving violation - ever.

I've also gotten trapped [literally] at a DUI checkpoint which was clearly illegally set up. There was no way to avoid it coming off a freeway off ramp. No way. The only turn off was a dead end. At that one I exercised my right to remain silent and handled the officer a pre-printed card which explained I refusing to respond to any investigatory questions, and refused all searches, exercising my 5th amendment right to be silent.

The officer exercised his pull over authority where the Supervising sergeant came over and tried to convince me to respond because it was there job. They then got angry, and insisted that I leave the vehicle and perform the FST, which I refused. I then asked the sergeant if I was being further detained for insisting on my rights, and to state the reasonable suspicion for my detention. That got the officer to tell me to just shut up. so I complied.

I stood at the rear of my vehicle in clear view of the camera and stated my position clearly and unambiguously.

After they detained me for a while, the sergeant asked the officer 'is he drunk?' The cop said: 'prob not.' Any warrants? 'Nope'. The Sergeant then said 'kick him.' And the Officer started lecturing me about cooperation. I thanked him for return my vehicle and the next day filed a complaint concerning the conduct. I asked that the tapes be sequestered. None of it happened - the tapes miraculously were 'not available,' and set up log was tainted somehow. I then simply filed a civil rights complaint with the PD over the location of the stop and the conduct of the officers. They both sadly lied through their teeth and claimed they suspected a smell of alcohol coming from the vehicle. Which was a convertible with the top down. Not a single officer on duty was willing to come forward. No one believed the testimony of the officer or the sergeant. But - as happens - the benefit the doubt went to the officer despite having a member of the bar testify as to their actions.

The Chief and police Commission decided that the stop was 'marginally' within standards - but that it was illegally placed. There was no getting around that.

Our settlement agreement was to retrain officers in the proper placement of checkpoints - and to respect invocations of rights and that in such circumstances that they create a log of actions taken to protect the invocation of the right. At least then they need to put the reasonable suspicion real time into the materials developed at the stop.

The standard response I usually get is, "I've only had two beers Officer." I tell them that if that's truly the case, it's in their best interest to do the FSTs including the PAS. I don't tell them that to coerce them to do it. It is simply to expedite the stop. Why go through the BS you had to when you could have just voluntarily done the tests and gone on with your day? I've never understood that, but I'm pretty old fashioned.


Sent from my iPhone using Tapatalk

 

[comanchepilot]

The standard response I usually get is, "I've only had two beers Officer." I tell them that if that's truly the case, it's in their best interest to do the FSTs including the PAS. I don't tell them that to coerce them to do it. It is simply to expedite the stop. Why go through the BS you had to when you could have just voluntarily done the tests and gone on with your day? I've never understood that, but I'm pretty old fashioned.


Sent from my iPhone using Tapatalk

I disagree - old fashioned is:

a) not drinking and driving - or
b) exercising your rights and making you do your job properly. . . .

No commentary on b - most officers are decent folks who are doing a job they are trained to do - just making an observation.

Because the 'standard' response of "I've had two beers" is an admission to the consumption of alcohol prior to driving which generates all sorts of reasonable suspicion for you to continue the stop.

Most cops I know already have reached the conclusion they're pulling over an intoxicated person from what they have observed before the stop . . . . so the questions and answers are part of the kubuki dance. Which is why I don't play. . . .

 

[comanchepilot]

And if that's the way it really went down id partially agree.

HOWEVER anyone who's been around a DUI check point knows that's not the way the cookie crumbles.

They put the signs in locations that ether you can't avoid the unwarranted search, OR you need to break a traffic law to avoid the checkpoint, AND and the VERY few properly placarded "DUI checkpoints", well if you do decide you don't want to play their game and make a turn or go around, a cop will launch off and pull you over.

And the result of them breaking these rules they are supposed to follow....nothing, no termination, no judgement against their pensions, nada, so this dog and pony show just keep on turning and crapping all over the constitution.

And the dumb dumbs just keep regurgitating the same marketing line "I likes the check points cuz they be saving lives", funny becuse the majority of the money the police make off the citizens at these things arnt even for DUIs.

I agree with you completely as far as it goes.

One of criteria for a DUI checkpoint legality in California is that there is an increased number of accidents or arrests for DUI in the general location where the checkpoint happens. In my old town, which has a discrete downtown district, 5 colleges and 4 graduate schools, the police set the checkpoint up a) in the same place every single time and b) never in or near the downtown or college district where students or drunks leaving downtown bars may drive through. Why may you ask? Because its convenient to where they store the trailers. And has a wide enough road to operate in. DUI's there are actually lower there than elsewhere in the community. And almost every local lawyer knows that - so they subpoena the records of the checkpoint and question the supervising officer on the reasons for inclusion of the checkpoint in that location - and I think the conviction rate for the 12 DUI's in the last 6 years is about just abot zero because the stop gets tossed - no stop - no arrest - no blow.

Other local cities have, as you say, placed the checkpoint where it cannot be avoided. Which is why I simply do not play the game. I have cards in my vehicle which state: "Thank for doing your job, Officer. I stand on my fifth amendment right against self-incrimation. I do not consent to searches. I refuse to respond to any investigatory questions. If you wish to see documents, please ask and they will be provided." that's it - because of the unconstitutional aspects of how these are set up and operated in the real world, I simply refuse to play.

Like most pilots and lawyers, my documents are always in order, I have no warrants or wants, my vehicle is maintained, and I know my rights. Dealing with the police is like dealing with a casino - the odds are against you but you can even them up. Or at least get real close.

I've had police make fun of my 'little card,' make snide comments about being a roadside lawyer, and do all sorts of completely inappropriate things. Those things continue right up until I pull my California bar card out with my drivers license. They say that cops hate lawyers - and its true. It's also true being a lawyer on the side of the road is always counterproductive. But all I'm asking the police to do is respect my rights and my status as a citizen. I'm a conservative who supports the police 100% when they do their job in the spirit and letter of the law. Many don't. Its why I have the attitude I do.

 

[Zeldman]

Every time I am pulled over for suspicion of driving under the influence, I just fall over on the officers feet and play dead....

Oh, I have never been pulled over for suspicion of driving under the influence, so I don't know if it works....