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

paflyer said:
Other definitions are that blue are labor and white are management. So are pro pilots blue or white? Blue implies some kind of rote manual labor that is easily replaced. I'm an engineer, and to some management types that position is easily replaceable.
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Everyone is replaceable. Everyone. The lights didn't dim and the work didn't stop in the factories of any famous name you might name, the day they pushed up the daisies.
 
Many of the executives get a different contract than regular line animals.

Some departments require you to cash out your accrued time when you promote to the executive level so you start over at zero. Other departments don't, so you retain your accrued time until you retire. Then when you get to the executive level, you don't get sick days or vacation days... instead you get bonuses for NOT taking time off. So say they give you $40,000 as your time off 'pool.' For every day you take vacation, they take $1,500 away. So at the end of the year if you don't take any time off, it's another $40,000 in your pocket. Then add on top of that the part where if an executive "works" for a certain number of hours, that counts as a full day. And working counts showing up at any function. So if an executive goes to a dinner for his department, that's a full work day. City council meeting? Full work day. Goes to the office to say hi? Full work day.

Ain't nothing like the scams that fire departments pull. That's why 69% of firefighters are volunteers... because most places can't afford full time firefighters.

denverpilot said:
It's not particularly funny. But keep telling those stories of how you're an "insider" and can't fix it. Pretty useful for "outsiders" to argue to tear the thing down if it's that bad. Always happens eventually in human history.
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Insiders very quickly become outsiders if they argue against the status quo. And considering the status quo is enacted by elected individuals, it's very difficult to fix anything either from being inside or outside. It's very easy for someone outside of the system to criticize those who are in it, but without getting elected or selected to head these agencies, there's very little anyone can do.
 
paflyer said:
Other definitions are that blue are labor and white are management. So are pro pilots blue or white? Blue implies some kind of rote manual labor that is easily replaced. I'm an engineer, and to some management types that position is easily replaceable.
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My apologies: the white collar/blue collar distinction is imprecise for this purpose. My point is that one's need for union representation is affected by one's line of work. For example, I have worked both as an engineer and as a musician. Engineers tend not to be unionized, because employers are competing for their services to a sufficient degree to make it unnecessary. For musicians, on the other hand, unless you are at the top of the profession, you don't have much negotiating power as an individual. The non-union musician contracts I have seen were ridiculously one-sided.

Piloting is another profession in which employees often see the value in being unionized.
 
Palmpilot said:
My apologies: the white collar/blue collar distinction is imprecise for this purpose. My point is that one's need for union representation is affected by one's line of work. For example, I have worked both as an engineer and as a musician. Engineers tend not to be unionized, because employers are competing for their services to a sufficient degree to make it unnecessary. For musicians, on the other hand, unless you are at the top of the profession, you don't have much negotiating power as an individual. The non-union musician contracts I have seen were ridiculously one-sided.

Piloting is another profession in which employees often see the value in being unionized.
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No biggie, the lines have become blurred. If you've been around as long as I have you'll know that there have been calls to unionize in engineering, but that's gone nowhere. Maybe it's "pride" in being in a learned profession, maybe engineers are just rugged individualists that lean "right" ;). Competition these days is being watered down with large numbers of H1Bs.

"Glamour" professions like being a pro musician or a pilot tend to get exploited because a lot of people want to do it, though few do it very well. What's your instrument?
 
paflyer said:
What do you mean by that? So by standing up for your rights a driver is now open to further scrutiny and "punishment" (i.e., "I smell the odor of marijuana.")?
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It's difficult to talk about a complex topic like this on a discussion forum, but I'll try. The totality of the circumstances have to be considered and no two scenarios are the same. I'll leave checkpoints out of this.

If a driver is truly sober and there is no suspicion of anything else such as drug impairment, then they shouldn't have anything to hide. I can't think of one example where a person who complied with everything, passed all tests was still arrested for DUI. Maybe it happens but I've never heard of it. Of course they can invoke their rights, and thats one thing that makes this country great. The choice to do that should not be held against them. There is no additional punishment for refusing those questions or tests unless they are on probation or something. If they invoke their rights then the officer must determine any impairment based upon their observations. If a crash led to the encounter or the driver was driving very erratically, the officer may have reason to investigate the possibility of impairment. If the odor of alcohol is not present there is always the possibility of drug impairment. THE OFFICER IS OBLIGATED TO ENSURE THE PERSON IS SAFE TO CONTINUE DRIVING so they might ask about prescribed or non prescribed drugs. Again, the person has every right to not talk. However, most people have no problem discussing events that led to the encounter. When an officer comes across somebody not willing to talk, that's unusual and will naturally raise suspicion. If that person also displays erratic behavior they might have a chemical onboard or they are just strange. If the person is acting strange, (that's a very subjective term) but otherwise sober and they refuse to complete any field sobriety tests, there is a possibility they will be arrested. Not to be punished but because the officer believes they are impaired because of something. If a chemical test later proves that person had nothing on board, the DA likely won't file any charges.


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paflyer said:
No biggie, the lines have become blurred. If you've been around as long as I have you'll know that there have been calls to unionize in engineering, but that's gone nowhere. Maybe it's "pride" in being in a learned profession, maybe engineers are just rugged individualists that lean "right" ;). Competition these days is being watered down with large numbers of H1Bs.

"Glamour" professions like being a pro musician or a pilot tend to get exploited because a lot of people want to do it, though few do it very well. What's your instrument?
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Bassoon
 
Kevin16587 said:
It's difficult to talk about a complex topic like this on a discussion forum, but I'll try. The totality of the circumstances have to be considered and no two scenarios are the same. I'll leave checkpoints out of this.

If a driver is truly sober and there is no suspicion of anything else such as drug impairment, then they shouldn't have anything to hide. I can't think of one example where a person who complied with everything, passed all tests was still arrested for DUI. Maybe it happens but I've never heard of it. Of course they can invoke their rights, and thats one thing that makes this country great. The choice to do that should not be held against them. There is no additional punishment for refusing those questions or tests unless they are on probation or something. If they invoke their rights then the officer must determine any impairment based upon their observations. If a crash led to the encounter or the driver was driving very erratically, the officer may have reason to investigate the possibility of impairment. If the odor of alcohol is not present there is always the possibility of drug impairment. THE OFFICER IS OBLIGATED TO ENSURE THE PERSON IS SAFE TO CONTINUE DRIVING so they might ask about prescribed or non prescribed drugs. Again, the person has every right to not talk. However, most people have no problem discussing events that led to the encounter. When an officer comes across somebody not willing to talk, that's unusual and will naturally raise suspicion. If that person also displays erratic behavior they might have a chemical onboard or they are just strange. If the person is acting strange, (that's a very subjective term) but otherwise sober and they refuse to complete any field sobriety tests, there is a possibility they will be arrested. Not to be punished but because the officer believes they are impaired because of something. If a chemical test later proves that person had nothing on board, the DA likely won't file any charges.


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You could have saved yourself a lot of typing and just said you don't get people who demand that their rights be respected because your training doesn't respect those rights.
 
comanchepilot said:
@ircphoenix - I NEVER assume conspiracy when incompetence will do.

however, as any police officer will tell you, there is no such thing as coincidence.

In situations where the body camera footage will exonerate or paint the officer or department in a good light, its almost always available.

In many many situations where the footage will provide someone exculpatory infomration or display misconduct, its 'unavailable,' 'inadvertently' destroyed or damaged, or claimed 'not recorded.' All of that is possible - but its a strange coincidence. And as I mentioned previously . . .there are no coincidences.

I did not say that the data needs to be immediately public - what I said was that the taxpayers own the footage, not the department. Anything recorded in public or on duty, not obviously private, is publicly reachable in an appropriate situation. Just because a police officer may be disciplined is not grounds for redacting or hiding footage. It also does not create a privacy expectation.

I agree that footage does not need to be made routinely available to the public, because there is all sorts of government security footage not available to the public - airports, ports, bridges etc etc etc. But the department should not be controlling it. . . . .
Click to expand...

My agency is currently testing body cameras so I don't know much about them but we do have dash cameras. Thanks to budget issues, out equipment is straight out of 1989. It records the data onto a DVD and is not the most reliable stuff. The officer carries a wireless mic that always seems to crap out at the wrong time. More often than not the lost picture and/or audio would have exonerated an officer from a complaint vs the other way around.


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Kevin16587 said:
It's difficult to talk about a complex topic like this on a discussion forum, but I'll try. The totality of the circumstances have to be considered and no two scenarios are the same. I'll leave checkpoints out of this.

If a driver is truly sober and there is no suspicion of anything else such as drug impairment, then they shouldn't have anything to hide. I can't think of one example where a person who complied with everything, passed all tests was still arrested for DUI. Maybe it happens but I've never heard of it. Of course they can invoke their rights, and thats one thing that makes this country great. The choice to do that should not be held against them. There is no additional punishment for refusing those questions or tests unless they are on probation or something. If they invoke their rights then the officer must determine any impairment based upon their observations. If a crash led to the encounter or the driver was driving very erratically, the officer may have reason to investigate the possibility of impairment. If the odor of alcohol is not present there is always the possibility of drug impairment. THE OFFICER IS OBLIGATED TO ENSURE THE PERSON IS SAFE TO CONTINUE DRIVING so they might ask about prescribed or non prescribed drugs. Again, the person has every right to not talk. However, most people have no problem discussing events that led to the encounter. When an officer comes across somebody not willing to talk, that's unusual and will naturally raise suspicion. If that person also displays erratic behavior they might have a chemical onboard or they are just strange. If the person is acting strange, (that's a very subjective term) but otherwise sober and they refuse to complete any field sobriety tests, there is a possibility they will be arrested. Not to be punished but because the officer believes they are impaired because of something. If a chemical test later proves that person had nothing on board, the DA likely won't file any charges.


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I get it; contempt of cop, even passive, gets punished. So by remaining silent, which is your right, you are under suspicion and likely under arrest. Now you have an arrest record.

I think refusing a sobriety check (again this is is subjective- I can't walk a straight line completely sober, and adrenaline is going to slur my speech, make my hands shake, and make me look "agitated") in most states is a summary license suspension just for refusing, even if you're 100% "clean."

"most people have no problem discussing events"

Yeah, most people are idiots who don't understand their rights. And cops/prosecutors love that.

"If a chemical test later proves that person had nothing on board, the DA likely won't file any charges."

Likely? Or will something be trumped up as a bargaining chip not to get sued?

"Of course they can invoke their rights, and that's one thing that makes this country great. The choice to do that should not be held against them."

But it is... the irony is thick.


Two takeaways:
If you have nothing to hide you have nothing to fear.

You can beat the rap but you can't beat the ride.
 
comanchepilot said:
thats exactly what he is saying . . . .

but he did then comment that officers who do that are not helping the situation either. . .
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I can handle my own replies, thanks. A sober driver who refuses to talk or perform any tests asked of him is missing out on perhaps their only opportunities to prove to the officer that they are not impaired and that their continued operation of a vehicle is safe. The last thing I want to do is allow an impaired driver to continue driving. When they go down the road and T bone a bus loaded with nuns, my a$$ is on the line. Help me help you.


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Kevin16587 said:
I can handle my own replies, thanks. A sober driver who refuses to talk or perform any tests asked of him is missing out on perhaps their only opportunities to prove to the officer that they are not impaired and that their continued operation of a vehicle is safe. The last thing I want to do is allow an impaired driver to continue driving. When they go down the road and T bone a bus loaded with nuns, my a$$ is on the line. Help me help you.


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Guilty until proven innocent? Great.
 
Not a lawyer, but I thought I've seen this before: I thought that to invoke your right to remain silent, you have to actually say either verbally or in writing that is what you are doing. Just clamming up won't do it. And in some places you might have to give your name.
 
Matthew said:
Not a lawyer, but I thought I've seen this before: I thought that to invoke your right to remain silent, you have to actually say either verbally or in writing that is what you are doing. Just clamming up won't do it. And in some places you might have to give your name.
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You are required to provide satisfactory evidence of identification during a detention.


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Matthew said:
Not a lawyer, but I thought I've seen this before: I thought that to invoke your right to remain silent, you have to actually say either verbally or in writing that is what you are doing. Just clamming up won't do it. And in some places you might have to give your name.
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Kevin16587 said:
You are required to provide satisfactory evidence of identification during a detention.


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The police have to say that you are being detained, and they must articulate their PC to do so.
 
Matthew said:
Not a lawyer, but I thought I've seen this before: I thought that to invoke your right to remain silent, you have to actually say either verbally or in writing that is what you are doing. Just clamming up won't do it. And in some places you might have to give your name.
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http://www.cnn.com/2010/CRIME/06/01/us.scotus.miranda/

Maybe Joe can weigh in on the applicability of this decision. I don't know if you have to be formally arrested or if you may remain silent (not giving notice that you are invoking your rights ) during any contact with police. I can't believe that you lose all protections from the government by refusing to affirmatively exercise your rights. Seems completely un-American.
 
Kevin16587 said:
Where the F did that come from?


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"...prove to the officer that they are not impaired..." This presumes that the "suspect" is impaired.
 
paflyer said:
http://www.cnn.com/2010/CRIME/06/01/us.scotus.miranda/

Maybe Joe can weigh in on the applicability of this decision. I don't know if you have to be formally arrested or if you may remain silent (not giving notice that you are invoking your rights ) during any contact with police. I can't believe that you lose all protections from the government by refusing to affirmatively exercise your rights. Seems completely un-American.
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Again, not a lawyer:

http://scocal.stanford.edu/opinion/people-v-tom-34351

>>
We likewise apply the general rule here and conclude that defendant, after his
arrest but before he had received his Miranda warnings, needed to make a timely
and unambiguous assertion of the privilege in order to benefit from it.
<<

California Supreme court ruling - to take advantage of your right to remain silent, you must invoke it. Simply not saying anything can be used against you. Dunno how that applies in other states.
 
paflyer said:
"...prove to the officer that they are not impaired..." This presumes that the "suspect" is impaired.
Click to expand...

Maybe it's my fault for being unclear, but you are presuming that the officer is presuming something that he isn't presuming. That presumption would be incorrect. I need a drink.


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I was discussing this earlier today with a friend.

In FL, if you are in an accident, you are required by statute to give an officer correct information pertaining to that accident. But since it is compelled testimony, it is inadmissible in court.

316.066...
4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.

If, as a result of the accident investigation the officer feels a crime was committed, he or she must "change hats" from being an accident investigator to a criminal investigator. At that point, Miranda is read and a driver may exercise their right to remain silent.

It may vary state-by-state.
 
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Kevin16587 said:
Maybe it's my fault for being unclear, but you are presuming that the officer is presuming something that he isn't presuming. That presumption would be incorrect. I need a drink.


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I'll drink to that!
 
How about a couple of war stories?

About an hour ago I heard a call on the radio of a car that hit two other cars and didn't stop (hit and runs). The car then continued and crashed into a house. All of the 911 callers described the same car and same driver. One caller at the scene of the crash told dispatch that he driver seemed intoxicated. All of this information was broadcast well before any officers got on scene. Would a reasonable person form the opinion that they would arrive to find a drunk involved? Maybe. What if the guy is not drunk, but having a medical issue like a seizure or diabetic shock? When the officers arrive should the guy answer questions about possible medical issues or should he just politely hand the officer a card stating he invokes his 5th amendment rights?

I almost arrested a diabetic guy one time that was in insulin shock, drove the wrong way on the freeway for 6 miles and killed another guy. I was going 130 mph trying to catch him and I witnessed the crash. He was not able to talk to me because of his condition after the crash but he was displaying many of the signs of a drunk. It was only after his blood sugar level was determined and I learned about his medical history from his wife that I was comfortable NOT arresting him. Without that information I likely would have arrested him and ordered a blood test.

Then, I had to explain to the deceased very traditional Hispanic family that the white guy that killed the head of their household wasn't going to jail. I was accused of racism because I didn't arrest him and there was a big stink in that community for a while.

This has nothing to do with DUIs, but still an interesting story.

I once pulled over an "A" list TV celebrity when the car she was a passenger in failed to completely stop at a stop sign. She tried to beg her way out of a ticket, which worked, mostly because the violation wasn't too egregious. Anyway, she went on Jay Leno a few days later and told the story about what a jerk I was. Her memory of the event was very different than mine but the truth would not have made for good TV.

Can't make this stuff up.

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There's a pretty simple rule here... It's the "don't be a dick" rule.

The cop is there ****ing everyone off not because he decided "hey, tonight I want to **** everyone off." He's there because someone in his chain of command decided that night, at that time, at that spot, there needs to be a checkpoint. So he's there. The public is ****ed because they're inconvenienced. The supervisors are ****ed because it is taking more than 3 seconds to conduct a sobriety check. Their supervisors are ****ed because there aren't enough drunks to justify the checkpoint.

Meanwhile someone rolls up and decides to be a dick to the officer under the guise of "screw you, I know my rights." Fine. That's all well and good. But to recoil in horror when you're not being a decent dude, and then the cop suspects you have something to hide OR just gets annoyed with you? Cmon. Stop being a delicate snowflake.

You need PC to make an arrest. You need reasonable suspicion to detain. The threshold for a detention is much lower than an arrest. There are a number of things that can result in a detention... some of which you may not agree with but are established case law. And that's why you end up at a secondary screening even though you've "done nothing wrong."
 
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Kevin16587 said:
How about a couple of war stories?

About an hour ago I heard a call on the radio of a car that hit two other cars and didn't stop (hit and runs). The car then continued and crashed into a house. All of the 911 callers described the same car and same driver. One caller at the scene of the crash told dispatch that he driver seemed intoxicated. All of this information was broadcast well before any officers got on scene. Would a reasonable person form the opinion that they would arrive to find a drunk involved? Maybe. What if the guy is not drunk, but having a medical issue like a seizure or diabetic shock? When the officers arrive should the guy answer questions about possible medical issues or should he just politely hand the officer a card stating he invokes his 5th amendment rights?

I almost arrested a diabetic guy one time that was in insulin shock, drove the wrong way on the freeway for 6 miles and killed another guy. I was going 130 mph trying to catch him and I witnessed the crash. He was not able to talk to me because of his condition after the crash but he was displaying many of the signs of a drunk. It was only after his blood sugar level was determined and I learned about his medical history from his wife that I was comfortable NOT arresting him. Without that information I likely would have arrested him and ordered a blood test.

Then, I had to explain to the deceased very traditional Hispanic family that the white guy that killed the head of their household wasn't going to jail. I was accused of racism because I didn't arrest him and there was a big stink in that community for a while.

This has nothing to do with DUIs, but still an interesting story.

I once pulled over an "A" list TV celebrity when the car she was a passenger in failed to completely stop at a stop sign. She tried to beg her way out of a ticket, which worked, mostly because the violation wasn't too egregious. Anyway, she went on Jay Leno a few days later and told the story about what a jerk I was. Her memory of the event was very different than mine but the truth would not have made for good TV.

Can't make this stuff up.

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Click to expand...
 
Clark1961 said:
LE is always innocent dontchaknow.
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This one's been bugging for a while and I've had my after dinner cocktail, so hold on tight.

Before you make another idiotic, uninformed, down right stupid comment like that on a public forum, think of my friend George.

Here's a story about my friend and fellow peace officer, "George." One day, on his way to work at 7:00 in the morning, George crashed into a parked car not far from his house. The local PD responded and noticed George didn't seem quite right. George swore up and down that he wasn't drunk and had only taken a prescribed sleep aid. George was arrested, gave some blood and put in jail. The PD didn't do anything wrong. A couple of weeks later, the blood results confirmed that the sleep aid was in fact in his system, nothing else. The amount of it agreed with his prescribed dosage which was confirmed by a medical professional.

Meanwhile, George's mug shot was all over he place. The media found his home address and tried to interview his 10 year old son. George was the subject of an internal investigation at work and facing a 30 day suspension (a month without pay anyone?). The DA decided to file DUI charges. Nobody at work had heard of any other similar cases in California at the time where a person was charged with DUI on a prescribed sleep aid. All we could figure was that the DA wanted to make an example of George. George's cut rate attorney didn't fight too hard and he ended up with a conviction.

That was the beginning of some serious issues with George's marriage and home life. There might have been other things, but I think getting a public lynching over his DUI conviction had a lot to do with it.

One day George went into the Sergeant's office and had a heart to heart talk about his issues. At the end of their conversation he resigned from the department. He put all of his uniforms, gun, badge etc in his locker and left.

George killed himself less than 24 hours later.


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Matthew said:
...California Supreme court ruling - to take advantage of your right to remain silent, you must invoke it. Simply not saying anything can be used against you. Dunno how that applies in other states.
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It wasn't a California Supreme Court ruling. In the case you cited, the California court relied on a U.S. Supreme Court ruling in a 2013 case, Salinas v. Texas, which concluded that "Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question."

"We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment."

https://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf
 
Kevin16587 said:
This one's been bugging for a while and I've had my after dinner cocktail, so hold on tight.

Before you make another idiotic, uninformed, down right stupid comment like that on a public forum, think of my friend George.

Here's a story about my friend and fellow peace officer, "George." One day, on his way to work at 7:00 in the morning, George crashed into a parked car not far from his house. The local PD responded and noticed George didn't seem quite right. George swore up and down that he wasn't drunk and had only taken a prescribed sleep aid. George was arrested, gave some blood and put in jail. The PD didn't do anything wrong. A couple of weeks later, the blood results confirmed that the sleep aid was in fact in his system, nothing else. The amount of it agreed with his prescribed dosage which was confirmed by a medical professional.

Meanwhile, George's mug shot was all over he place. The media found his home address and tried to interview his 10 year old son. George was the subject of an internal investigation at work and facing a 30 day suspension (a month without pay anyone?). The DA decided to file DUI charges. Nobody at work had heard of any other similar cases in California at the time where a person was charged with DUI on a prescribed sleep aid. All we could figure was that the DA wanted to make an example of George. George's cut rate attorney didn't fight too hard and he ended up with a conviction.

That was the beginning of some serious issues with George's marriage and home life. There might have been other things, but I think getting a public lynching over his DUI conviction had a lot to do with it.

One day George went into the Sergeant's office and had a heart to heart talk about his issues. At the end of their conversation he resigned from the department. He put all of his uniforms, gun, badge etc in his locker and left.

George killed himself less than 24 hours later.


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Have a nice day and don't let things on the internet bother you. You have no need to idiotically attempt to defend yourself since LE is always innocent dontchaknow.
 
paflyer said:
Other definitions are that blue are labor and white are management. So are pro pilots blue or white? Blue implies some kind of rote manual labor that is easily replaced. I'm an engineer, and to some management types that position is easily replaceable.
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Boeing engineers seem to think they require unions.

Pilots are blue collar job because as the aircraft move ahead in technology the old dog as co-pilot becomes more likely every day.

I think that flying is a trade. It got built up as a college level position - but its not really. You can learn to fly at 16. Go to a college with an aviation program. Graduate with a degree in flying - and go work for an airline and start moving up the ladder. Orville noted that skill is primarily required - and that skill is not taught in a classroom - its taught in the cockpit and earned from experience. You can teach someone howe to design the airplane and the systems - but its not gonna teach them to fly. It's alot like plumbing, electrical and other trades in that respect.
 
Clark1961 said:
Have a nice day and don't let things on the internet bother you. You have no need to idiotically attempt to defend yourself since LE is always innocent dontchaknow.
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Ha Ha, the Cop's FU: "Have a nice day"
 
Kevin16587 said:
It's difficult to talk about a complex topic like this on a discussion forum, but I'll try. The totality of the circumstances have to be considered and no two scenarios are the same. I'll leave checkpoints out of this.

If a driver is truly sober and there is no suspicion of anything else such as drug impairment, then they shouldn't have anything to hide. I can't think of one example where a person who complied with everything, passed all tests was still arrested for DUI. Maybe it happens but I've never heard of it. Of course they can invoke their rights, and thats one thing that makes this country great. The choice to do that should not be held against them. There is no additional punishment for refusing those questions or tests unless they are on probation or something. If they invoke their rights then the officer must determine any impairment based upon their observations. If a crash led to the encounter or the driver was driving very erratically, the officer may have reason to investigate the possibility of impairment. If the odor of alcohol is not present there is always the possibility of drug impairment. THE OFFICER IS OBLIGATED TO ENSURE THE PERSON IS SAFE TO CONTINUE DRIVING so they might ask about prescribed or non prescribed drugs. Again, the person has every right to not talk. However, most people have no problem discussing events that led to the encounter. When an officer comes across somebody not willing to talk, that's unusual and will naturally raise suspicion. If that person also displays erratic behavior they might have a chemical onboard or they are just strange. If the person is acting strange, (that's a very subjective term) but otherwise sober and they refuse to complete any field sobriety tests, there is a possibility they will be arrested. Not to be punished but because the officer believes they are impaired because of something. If a chemical test later proves that person had nothing on board, the DA likely won't file any charges.


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Any right there - 'nothing to hide' or 'not to be punished but ., . . ' you have just caused a pilot to file a required report with the FAA for doing nothing. Is that a fair and reasonable exercise of police power. My invocation of my rights, which is the underpinning of the any police - citizen interaction, causes me harm.

You just confirmed something no police officer has ever been willing to say on the stand: The exercise of constitutional rights is inherently suspicious.

How sad is that. . . .
 
paflyer said:
I get it; contempt of cop, even passive, gets punished. So by remaining silent, which is your right, you are under suspicion and likely under arrest. Now you have an arrest record.

I think refusing a sobriety check (again this is is subjective- I can't walk a straight line completely sober, and adrenaline is going to slur my speech, make my hands shake, and make me look "agitated") in most states is a summary license suspension just for refusing, even if you're 100% "clean."
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Thats not right. You are only required to consent to a test of your breath, blood or urine if you are arrested. You never - ever - required to consent to PAS, FST, or anything else simply because you are asked. I wish people would freaking understand their responsibilities under the law.

"most people have no problem discussing events"
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Yeah, most people are idiots who don't understand their rights. And cops/prosecutors love that.

"If a chemical test later proves that person had nothing on board, the DA likely won't file any charges."

Likely? Or will something be trumped up as a bargaining chip not to get sued?

"Of course they can invoke their rights, and that's one thing that makes this country great. The choice to do that should not be held against them."

But it is... the irony is thick.


Two takeaways:
If you have nothing to hide you have nothing to fear.

You can beat the rap but you can't beat the ride.
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If you have nothing to hide, then why not take the ride is my position. I've never been arrested for DUI because I don't DUI. I have never been arrested either for invoking my rights because I make it damn clear that doing so will have consequences for the arresting officer who puts his name on that form. You will be justifying your decision in light of all of the facts. And these days, one of those facts is that the video function in my phone is running.
 
paflyer said:
http://www.cnn.com/2010/CRIME/06/01/us.scotus.miranda/

Maybe Joe can weigh in on the applicability of this decision. I don't know if you have to be formally arrested or if you may remain silent (not giving notice that you are invoking your rights ) during any contact with police. I can't believe that you lose all protections from the government by refusing to affirmatively exercise your rights. Seems completely un-American.
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The way it works is the way I've been saying always.

You cannot simply refuse. You MUST say, in words or in a writing [hence the little card I carry in all my cars] "I invoke my right to remain silent under the 5th amendment. I refuse to answer investigatory questions and insist on a right to speak with an attorney before questioning. I will provide you with proof of identity vehicle registration and insurance coverage upon request. I refuse consent to any search of person or property" End of statement. Why do you need to say it that way?

1) you need to 'invoke' your right to remain silent - specifically. Might seem unAmerican but I heard a cop testify once that the person was silent because they were too intoxicated to speak. How do you refute such a conclusion? There are no facts to prove the officer wrong. SAY IT.

2) You need to consent to providing documentary proof of identity, vehicle registration and insurance. Refusing to do that is grounds for arrest. You are not refusing to cooperate in identifying yourself and your legality to operate a motor vehicle, you are simply remaining silent. "Render unto Caesar that which is Caesars." The paperwork belongs to the state . . . .

3) you then need to reject, formally, any search request. The words I use begin the clock for them providing access to a lawyer before questioning. At that point, under current law, they cannot ask you any further questions.

It is VERY hard for a police officer to develop probable cause to arrest you for suspicion of DUI if you refuse to cooperate. EVERY single part of the interaction with a police officer is a kubuki dance designed to generate reasonable suspicion for them to continue the stop. If you are at a checkpoint and you're not in a sealed vehicle smelling of the metabolites of alcohol . . . and you don't run them over. . . .what FACTS do that have? None- zero. "State your suspicions for concluing my client was intoxicated officer. " No speech slurring. No stumbling. No failures of the FST. No alcohol on their breath because they did not speak. They refused to look into your stupid flashlight. FACTS please. None- zero. No probable cause for arrest. Dismissed.
 
ircphoenix said:
There's a pretty simple rule here... It's the "don't be a dick" rule.

The cop is there ****ing everyone off not because he decided "hey, tonight I want to **** everyone off." He's there because someone in his chain of command decided that night, at that time, at that spot, there needs to be a checkpoint. So he's there. The public is ****ed because they're inconvenienced. The supervisors are ****ed because it is taking more than 3 seconds to conduct a sobriety check. Their supervisors are ****ed because there aren't enough drunks to justify the checkpoint.
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Agreed. It is not about the officer - no reason not to be polite. But the checkpoints have rules to do what? Protect citizens rights. It's not about whatever word you used which got bleeped.

Meanwhile someone rolls up and decides to be a dick to the officer under the guise of "screw you, I know my rights." Fine. That's all well and good. But to recoil in horror when you're not being a decent dude, and then the cop suspects you have something to hide OR just gets annoyed with you? Cmon. Stop being a delicate snowflake.
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Your oath was to what, when you signed on? You tell us? You agreed to defend what?

Ok - assuming we know the answer. I roll up. I roll down my window and hand you my card. It says: "I invoke my right to remain silent under the 5th amendment. I refuse to answer investigatory questions and insist on a right to speak with an attorney before questioning. I will provide you with proof of identity vehicle registration and insurance coverage upon request. I refuse consent to any search of person or property"

Where does the law say that I have to be a 'decent dude?' You are still required to respect my rights, especially when I invoke them. Yet here you are - tellinfg me to gut it up, its time for the cavity search. Why? What FACTS do you have to suspect anything is wrong when all I done is invoke the very rights you have sworn to uphold and protect? Justify that for me. I'm being a ******** for invoking my rights? Wow.

This is a fascinating discussion - is it not? Lets move on to your next quote, Officer.

You need PC to make an arrest. You need reasonable suspicion to detain. The threshold for a detention is much lower than an arrest. There are a number of things that can result in a detention... some of which you may not agree with but are established case law. And that's why you end up at a secondary screening even though you've "done nothing wrong."
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Given fact pattern: Checkpoint. I roll up. Get stopped. I hand you the card. Lights are all working. Vehicle is not smoking, no broken glass etc. Front license plate attached. "For the record, please state your reasonable suspicion for further detention?" Cause now we're in a 1983 civil rights case against your department and you.

I"m dying to hear this one. Whats the factual underpinning of your further detention and inspection? My invocation of rights? That is ALL that reasonably available to you. You are really going to testify that the invocation of constitutional rights was what set off your BS meter? Of course not- but I'm not looking at you. There is no objective reason to stop me - you are going to have to lie. You are going to have to make up a fact to cover the real reason, which is that I refused to comply with your authority.

I have sat in a courtroom and listened to a police officer lie through his teeth to convict someone of an illegal u-turn. I put one of his fellow officers, sitting in the room for another case, on the stand to impeach his testimony. After his brother officer told the court in words of one syllable that it was not possible for him to see what he claimed he saw, from where he was sitting, this officer refused to redact his prior testimony - to the point that the judge stopped the proceedings and had an in chambers discussion with us. He came out and dismissed the citation in the interests of justice - not a not guilty - but a dismissal.

If a cop is willing to lie to get a U-turn conviction - what will they do in a case where they may have personal liability under 42 U.S.C. 1983?

I would LOVE to hear the position of an officer in that situation. Because you are NEVER going to get me to consent to a search, an FST, a PAS or anything. Good luck.
 
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