Field sobriety tests, How to handle traffic stops?

[nauga]

Do you have a citation to a case saying the description and results of field sobriety tests are inadmissible? I have to admit that the last DUI case I tried was 30 years ago and things may have changed since then.

The only time I have been empaneled during jury duty so far was for a DUI case in CA ~10 years ago. We heard testimony on the FST and field breathalyzer results (and calibration).

Nauga,
deliberately

 

[bbchien]

One way to handle them is to never drink, and, be respectful. It works.

About a decade ago i was getting into the car with my spouse after having gone to the boutique ice Cream store. I noticed a squad card proceeding down the stress (same side where I was parked) very very close to the parallel parked lane, and slow, about a block away. I looked and didn't see her and started to pull out, then hit the brakes. She was on my left rear fender. She turned on her lights/siren. "License and registration! Have you been drinking"?
"No Maam, Here's my receipt from the ice cream store".

(It also helped that I had a fore and aft Dashcam running and it was noticed).
She backed off.

If you're trying to have a drink or two with supper out....we'll it's your own da_ned fault for not using an Uber.

B

 

[midlifeflyer]

The only time I have been empaneled during jury duty so far was for a DUI case in CA ~10 years ago. We heard testimony on the FST and field breathalyzer results (and calibration).

Nauga,
deliberately

That's why I asked about that flat statement @Jon Wilder made that field sobriety tests are inadmissible. It just didn't make any sense to me that an officer's testimony about how the subject was so drunk that when they tried to walk a straight line they fell to the ground and began crying would be excluded.

 

[Ed Haywood]

That's why I asked about that flat statement @Jon Wilder made that field sobriety tests are inadmissible. It just didn't make any sense to me that an officer's testimony about how the subject was so drunk that when they tried to walk a straight line they fell to the ground and began crying would be excluded.

10 seconds on Google shows his statement was baloney.

 

[EdFred]

FSTs are not exculpatory, but they are definitely incriminating, and anything incriminating the deck is stacked for it to be used by the state. Remember, the state never wants anything exculpatory presented and will do anything and everything to have it tossed, but they will sure be happy to pile on the incriminating evidence until Mauna Kea looks small.

 

[midlifeflyer]

10 seconds on Google shows his statement was baloney.

Yes, but since I disclaim knowing everything (except how different states can be on criminal procedure and evidentiary issues), I figure I'd ask if he could come up with a reference to verify it.

 

[Jon Wilder]

I did my driver training a long time ago, but was taught if you refused a breath test that your driver license is automatically suspended.

If you are arrested, you are required to submit to a chemical test, which can be either blood, breath, or urine. If you refuse this test, your driver license is automatically suspended.

Was never sure about FST.

If you are detained for investigation, however, you are under no obligation to give anything, answering questions, FST, field breathalyzer, or otherwise. Your refusal to participate in FST's cannot be used against you in the courtroom, nor with the DMV.

And I believe if you said you had a drink at dinner that you could be charged with DWI or something (still bad) so I’m not really sure how to answer that question but I would be silent in that case (you don’t want to get caught lying either).

You answer nothing, no matter what it is. You are under no obligation to answer questions. The ONLY right answer to all questions asked by LEOs is "I don't answer questions without my attorney present." Or, more simply, "I don't answer questions."

The cops may retort with "Look man, I'm just trying to do my job blah blah blah". That, in no way, obligates you to answer any questions. While you have no authority to stop them from doing their job (refusing to answer questions, refusing a vehicular search without a search warrant, and/or exercising your right to remain silent does NOT qualify as "stopping them from doing their job"), you have no duty nor obligation to assist them in doing their job.

Does the FAA medical or basic med require a drivers license to exercise flying privileges? Or just a valid ID?

BasicMed and Sport Pilot privileges require a valid driver license.

 

[Jon Wilder]

Do you have a citation to a case saying the description and results of field sobriety tests are inadmissible? I have to admit that the last DUI case I tried was 30 years ago and things may have changed since then.

I misstated my original post.

FST's are 100% voluntary, and your refusal to participate in FST's is inadmissible against you in the courtroom. If you do participate in FST's, they can be used to establish probable cause to arrest.

The results of properly administered FSTs can be used as circumstantial evidence of impairment, and officers may testify about your performance. But many attorneys have successfully had FST results thrown out in the courtroom.

 

[Tarheelpilot]

I'm fuzzy on the whole breathalyzer/DUI thing when it comes to FAA considerations especially, but also just generally/criminally....
What are we required to do, and what should we refuse?

I don't drink much, only just very rarely...and only when I'm not driving. I'm pretty clean about not drinking anything when I'm out and about. I just don't drink at all if I'm going to be driving...ever. I have in the past had a beer....maybe one (1).... while out boating, but that is very rare as in like less than 1x a year. Now I'm second-guessing even that.

Because I barely ever drink, I've never really paid all that much attention to DUI laws and how to handle this stuff. I think that I understand that per the FAA I can't refuse a breathalyzer if asked...but it seems that most civil guidance seems to be that the trunk portable ones anyway should be refused for legal considerations. Do I have that right?

But the question that came to mind to make this post is how to handle sobriety tests and law enforcement encounters in general. I thought I'd post here to get the perspective of aviators...

I was home sick last week, killing time on youtube, and got off on a sidetrack watching a few videos of game warden body cam footage and arrests. Since then of course youtube thinks I'm interested in that stuff so I've been seeing a lot more of them pop into my suggestions and I've watched a couple more, and a couple lawyer videos.
Now I understand that these videos are selected for drama and views, and they probably aren't representative of the average encounter
but
they do sort of paint the picture that law enforcement is trying to trick you at every turn.

Anyway, the root of my question is about these sobriety tests...
I'm watching these tests given to folks, mostly while out boating.... sometimes given to folks that by what can be deduced through the screen anyway, are not impaired...and they can't pass them.
And some of them are so complex that I doubt I could pass them being stone-cold sober, well-rested, and completely on my A game. These verbal complicated multistep tests given verbally along with a very short demonstration that one is expected to memorize.

It's like a new VFR pilot being asked to copy an IFR clearance read very quickly, and without a kneeboard or any way to make notes. They'd have no idea what info is coming or in what order, and then be expected to read it back perfectly.

and it seems that some of these tests require a level of hand-eye coordination and balance that many folks... especially older folks, just don't have...AND that are absolutely not required to drive a car safely. They really do seem like a crooked trap.
Even if stone cold sober, well rested, not sick with a cold or alergies, and well fed...it seems like it puts folks between a rock and a hard place

So it seems from my 45 minutes' worth of youtube university education, that generally it's better to refuse taking these test so that the police can't use the info to build a case of probable cause.
But
From the FAA perspective especially, what is a pilot to do if pulled over for a tailight out or whatever minor infraction, and it escalates

Very politely offer to provide a blood draw or calibrated breath test and to decline any subjective roadside tests and explain why it matters to you.

 

[geezer]

An interesting memory just popped up.

Around 1980, Budweiser had an aluminum can recycling push. They brought a tractor trailer to a designated parking lot on specific days.

They crushed the cans and blew them into the trailer.

One of my trips, there was an old guy there, in a large 1960's station wagon, full of loose cans, including some in the right front seat. the interior was buzzing with yellow and black hornets and honey bees, cleaning out residue.

I asked where he got all those cans, he responded, mostly mine, and a few friends. We throw the cans as far back as we can, when they roll over the seat back, I make a run here for some more beer money. His inside rear view mirror was useless.

The aroma was impressive, and I wondered how a routine traffic stop would have gone.

 

[Matthew]

An interesting memory just popped up.

Around 1980, Budweiser had an aluminum can recycling push. They brought a tractor trailer to a designated parking lot on specific days.

They crushed the cans and blew them into the trailer.

One of my trips, there was an old guy there, in a large 1960's station wagon, full of loose cans, including some in the right front seat. the interior was buzzing with yellow and black hornets and honey bees, cleaning out residue.

I asked where he got all those cans, he responded, mostly mine, and a few friends. We throw the cans as far back as we can, when they roll over the seat back, I make a run here for some more beer money. His inside rear view mirror was useless.

The aroma was impressive, and I wondered how a routine traffic stop would have gone.

One of the local sports radio guys likes telling the story of being in a locker room after a championship win and getting soaked with beer and champagne showers. He, also was wondering what would happen if he were stopped on his way home.

 

[Jon Wilder]

Very politely offer to provide a blood draw or calibrated breath test and to decline any subjective roadside tests and explain why it matters to you.

You owe them no explanation. I agree with the first part.

 

[PastZTL]

In some states a refusal to take the official breath test back at the station (or blood draw at the hospital) will get you a one-year license suspension AND they can still prosecute you for DUI. They will use the officers testimony (he/she had bloodshot, glassy eyes and I smelled the overwhelming odor of an alcoholic beverage). They took too long to find their registration when I was asking where they were going (the divided-attention test). His/her speech sounded slightly slurred. When asked, he/she admitted they had been consuming alcohol (X number of drinks).

Then the bodycam will show you did pretty good on the SFSTs, but their standards show there were too many mistakes. Finally, the defendant refused the Intoxilizer 9000 breath alcohol test (that can be used against you).

 

[midlifeflyer]

FST's are 100% voluntary, and your refusal to participate in FST's is inadmissible against you in the courtroom

That’s more like it.

and yes, FSTs have been successfully challenged for a long time, with some challenges more successful than others. (And some results better than others)

I think part of the confusion we’re seeing here is conceptual. To many, refusal to cooperate is seen as appearing to be guilty regardless of the legal effect of standing on one’s right to not incriminate themselves. Add to that the statutory and constitutional differences between certain types of refusals and, for pilots, the fact that the consequences may be different in different forums.

 

[Half Fast]

An interesting memory just popped up.

Around 1980, Budweiser had an aluminum can recycling push. They brought a tractor trailer to a designated parking lot on specific days.

They crushed the cans and blew them into the trailer.

One of my trips, there was an old guy there, in a large 1960's station wagon, full of loose cans, including some in the right front seat. the interior was buzzing with yellow and black hornets and honey bees, cleaning out residue.

I asked where he got all those cans, he responded, mostly mine, and a few friends. We throw the cans as far back as we can, when they roll over the seat back, I make a run here for some more beer money. His inside rear view mirror was useless.

The aroma was impressive, and I wondered how a routine traffic stop would have gone.

Back in the '80s, there was an Atlanta radio personality who went by the pseudonym of Red Neckerson. https://www.findagrave.com/memorial/127692264/gary-russell-corry He ran a station promotional give-away of a new pickup truck, and the challenge was to give the correct count of the number of beer cans in the truck bed, which was filled to overflowing.

I suspect your guy could have made a close guess.

 

[Mahneuvers]

...ran a station promotional give-away...

Do you remember the Turkeys Away episode of WKRP in Cincinnati? It was based on a true story. In Atlanta in the mid 90s, I played racquetball at The Concourse with real-life station manager who the Arthur Carlson character was modeled after. They actually looked very similar!

 

[Half Fast]

Do you remember the Turkeys Away episode of WKRP in Cincinnati? It was based on a true story. In Atlanta in the mid 90s, I played racquetball at The Concourse with real-life station manager who the Arthur Carlson character was modeled after. They actually looked very similar!

Oh, the humanity!

 

[bradg33]

Very politely offer to provide a blood draw or calibrated breath test and to decline any subjective roadside tests and explain why it matters to you.

Don't do this. Just keep your mouth shut. Yes, human instinct is to "talk your way out of it." But don't, you likely will just dig a hole that they'll throw you in.

Just shut up. Don't answer questions, don't volunteer anything.

You can, in fact, remain polite while saying nothing. Don't argue, don't try to explain. Just keep repeating "I don't answer questions." Period. They'll keep pressing, trying to get you to give in to your basic instinct to talk and then start down the rabbit hole. But don't. JUST. SHUT. UP. The more you engage, the more likely it is you'll say something stupid. So just don't do it.

If you're actually arrested, ask for a lawyer immediately and continue to keep your mouth shut. When you say "I'm not answering questions without my lawyer," that suggests you might actually answer questions if you had a lawyer present. But most lawyers, in most situations, aren't going to let you answer questions even if the lawyer is present.

So, repeat after me: "I don't answer questions."

The non-lawyers on here telling you to "just comply" don't have a full understanding of exactly how you can trip yourself up (or just don't care).

 

[Jon Wilder]

Don't do this. Just keep your mouth shut. Yes, human instinct is to "talk your way out of it." But don't, you likely will just dig a hole that they'll throw you in.

Just shut up. Don't answer questions, don't volunteer anything.

You can, in fact, remain polite while saying nothing. Don't argue, don't try to explain. Just keep repeating "I don't answer questions." Period. They'll keep pressing, trying to get you to give in to your basic instinct to talk and then start down the rabbit hole. But don't. JUST. SHUT. UP. The more you engage, the more likely it is you'll say something stupid. So just don't do it.

If you're actually arrested, ask for a lawyer immediately and continue to keep your mouth shut. When you say "I'm not answering questions without my lawyer," that suggests you might actually answer questions if you had a lawyer present. But most lawyers, in most situations, aren't going to let you answer questions even if the lawyer is present.

So, repeat after me: "I don't answer questions."

The non-lawyers on here telling you to "just comply" don't have a full understanding of exactly how you can trip yourself up (or just don't care).

^^^THIS.

They have a job to conduct an investigation. You are under no duty nor obligation to assist with their investigation. Your refusal to comply is not an admission of guilt, nor can they use it against you in court.

A prosecutor tried that in the Kyle Rittenhouse case. The judge lit him up good for that one.

They cannot use your exercising of rights against you. Period.

“I don’t answer questions.” Period. Full stop.

 

[Ed Haywood]

Don't do this. Just keep your mouth shut. Yes, human instinct is to "talk your way out of it." But don't, you likely will just dig a hole that they'll throw you in.

Just shut up. Don't answer questions, don't volunteer anything.

You can, in fact, remain polite while saying nothing. Don't argue, don't try to explain. Just keep repeating "I don't answer questions." Period. They'll keep pressing, trying to get you to give in to your basic instinct to talk and then start down the rabbit hole. But don't. JUST. SHUT. UP. The more you engage, the more likely it is you'll say something stupid. So just don't do it.

If you're actually arrested, ask for a lawyer immediately and continue to keep your mouth shut. When you say "I'm not answering questions without my lawyer," that suggests you might actually answer questions if you had a lawyer present. But most lawyers, in most situations, aren't going to let you answer questions even if the lawyer is present.

So, repeat after me: "I don't answer questions."

The non-lawyers on here telling you to "just comply" don't have a full understanding of exactly how you can trip yourself up (or just don't care).

The non-lawyer you are responding to is a former cop. He might have some useful perspective on the best way to prevent a stop from going worse than it has to.

 

[bradg33]

The non-lawyer you are responding to is a former cop. He might have some useful perspective on the best way to prevent a stop from going worse than it has to.

The LAST person I want to take any kind of legal advice from is a cop, former or otherwise. For one, most of them don't actually understand all the nuances of the law (which is intentional in police training). Want an example? What about the police who are trained to demand ID immediately upon contact with anyone, despite clear statutes and caselaw in nearly every state that requires reasonable, articulable suspicion of a crime before they can demand ID. Or those who think that citizens must answer any questions posed by the police.

Two, their perspective tends to revolve entirely around "just comply and make my job easy for me." That perspective is clear from the advice they give, which is effectively "give up your rights so my job is easy, even if it means you might go to jail." So no, I don't really give much, if any, weight to what cops, former or otherwise, think about legal issues.

 

[Matthew]

Rin White said, “I had the right to remain silent…but I did not have the ability.”

There have been a couple of Supreme Court decisions about the right to remain silent. You need to explicitly invoke it or your silence can be used against you:

The Right to Silence for Criminal Suspects Under the Law

Information on the right to silence, one of a criminal defendant's Miranda rights, as well as how to invoke it and limits on when it applies.

www.justia.com

>>>
Failure to Invoke the Right to Silence

Two recent court cases illustrate situations when a person’s silence could be used against him or her, without violating the Fifth Amendment or Miranda. Both involve failure by the defendant to assert the right to silence.
<<<

 

[bradg33]

Rin White said, “I had the right to remain silent…but I did not have the ability.”

There have been a couple of Supreme Court decisions about the right to remain silent. You need to explicitly invoke it or your silence can be used against you:

The Right to Silence for Criminal Suspects Under the Law

Information on the right to silence, one of a criminal defendant's Miranda rights, as well as how to invoke it and limits on when it applies.

www.justia.com

>>>
Failure to Invoke the Right to Silence

Two recent court cases illustrate situations when a person’s silence could be used against him or her, without violating the Fifth Amendment or Miranda. Both involve failure by the defendant to assert the right to silence.
<<<

Fair points, and these are the kinds of nuances that many are simply ignoring when they say "just talk to the police and comply."

Fortunately in Salinas, the Supreme Court observed that "Although “no ritualistic formula is necessary in order to invoke the privilege, a witness does not do so by simply standing mute." So, under that case law, the first time you say "I don't answer questions" is very likely enough to invoke it.

But, as you read cases in this area, it gets muddier when someone answers some questions voluntarily and not others. That raises questions about whether you've waived the right to remain silent, etc.

So, back to the suggestions that myself and some others have offered on here: "I don't answer questions" and then SHUT UP.

 

[Flatiowa]

So… twenty years latter…

 

[Jon Wilder]

One way to handle them is to never drink, and, be respectful. It works.

Except never drinking isn't enough. Have you not seen the many cases of sober DUI in recent times?

 

[Matthew]

Except never drinking isn't enough. Have you not seen the many cases of sober DUI in recent times?

Sobriety checkpoints?

 

[Tarheelpilot]

That's why I asked about that flat statement @Jon Wilder made that field sobriety tests are inadmissible. It just didn't make any sense to me that an officer's testimony about how the subject was so drunk that when they tried to walk a straight line they fell to the ground and began crying would be excluded.

Field sobriety tests may be admissible.

Source: me, a dude that’s provided testimony in court regarding field sobriety tests as evidence of impairment.

not all tests are created equal. Some are admissible some are not. Like most things in life when someone starts talking in absolute terms they are generally telling you they have no idea what they are talking about just in an around about kinda way.

 

[Tarheelpilot]

Don't do this. Just keep your mouth shut. Yes, human instinct is to "talk your way out of it." But don't, you likely will just dig a hole that they'll throw you in.

Just shut up. Don't answer questions, don't volunteer anything.

You can, in fact, remain polite while saying nothing. Don't argue, don't try to explain. Just keep repeating "I don't answer questions." Period. They'll keep pressing, trying to get you to give in to your basic instinct to talk and then start down the rabbit hole. But don't. JUST. SHUT. UP. The more you engage, the more likely it is you'll say something stupid. So just don't do it.

If you're actually arrested, ask for a lawyer immediately and continue to keep your mouth shut. When you say "I'm not answering questions without my lawyer," that suggests you might actually answer questions if you had a lawyer present. But most lawyers, in most situations, aren't going to let you answer questions even if the lawyer is present.

So, repeat after me: "I don't answer questions."

The non-lawyers on here telling you to "just comply" don't have a full understanding of exactly how you can trip yourself up (or just don't care).

I don’t agree.

First of all nothing I said is intended to “talk your way out of it.”

Second. If you refuse to provide a test the FAA treats that as a positive test and a positive marker for abuse. You will lose the medical and have to do the full deal as a dependent abuser of alcohol.

While I am a huge proponent of never ever talking to the police, being stopped under suspicion of impaired driving is unique in that there is implied consent if you decide to operate a vehicle. Essentially all a cop is required to do in order to compel submission to a sobriety test is articulate reasonable suspicion of impairment. If you refuse then you are guilty. Now on the criminal side you may have better outcome by refusing. That will generally not be the case for the FAA. Unless you already know you are over a .15. But if that’s the case then I don’t really care what happens to you.

My post was directed at a specific set of people: pilots, not under the influence, being investigated for impaired driving. If someone in that subset takes your advice they are quite literally ****ed.

 

[Tarheelpilot]

The LAST person I want to take any kind of legal advice from is a cop, former or otherwise. For one, most of them don't actually understand all the nuances of the law (which is intentional in police training). Want an example? What about the police who are trained to demand ID immediately upon contact with anyone, despite clear statutes and caselaw in nearly every state that requires reasonable, articulable suspicion of a crime before they can demand ID. Or those who think that citizens must answer any questions posed by the police.

Two, their perspective tends to revolve entirely around "just comply and make my job easy for me." That perspective is clear from the advice they give, which is effectively "give up your rights so my job is easy, even if it means you might go to jail." So no, I don't really give much, if any, weight to what cops, former or otherwise, think about legal issues.

Training varies a LOT across this beautiful nation we call home. When I was going through our constitutional law course we were explicitly instructed we were required to articulate our probable cause and or reasonable suspicion before requiring identification or detaining. In some explicitly defined exigent circumstances there was wiggle room. I’m not saying you are wrong, just that you’re not always right.

I’m pretty sure I’ve been in a court room for criminal proceedings a hell of a lot more that you and also pretty sure you will dismiss everything I’m telling you but be warned. You act the way you’re promoting on a dui stop you’ll be a customer of Dr. B or one of his peers very quickly. Also if you keep that attitude you, most likely, won’t be successful in your bid to get a medical back.

 

[mark.staggs]

Not sure if anyone else posted this, but this is a classic video at this point:

 

[Jon Wilder]

Second. If you refuse to provide a test the FAA treats that as a positive test and a positive marker for abuse. You will lose the medical and have to do the full deal as a dependent abuser of alcohol.

If you refuse the test which follows an arrest, the FAA treats it as a positive test. Not the Preliminary Breath Test (PBT).

There is already a legal presumption that if you take the breath or chemical test within 45 minutes of the stop, the result is presumed to be your BAC at the time of operating. If you refuse a PBT, then get arrested and take the chemical test at the station, what would your refusal to take the PBT matter?

Remember, you only have to report "arrests". Not traffic stops that result in no arrest nor citation. If you refuse to participate in FSTs and/or a PBT, the cop knows they have no probable cause to arrest, and let you go without arrest, you wouldn't have to report this.

When you are asked to voluntarily take the FSTs/PBT, you are being detained, but you are not under arrest. You can refuse this all you want without repercussions. The FAA CANNOT use your refusal of FSTs/PBT against you.

While I am a huge proponent of never ever talking to the police, being stopped under suspicion of impaired driving is unique in that there is implied consent if you decide to operate a vehicle.

There is NOT implied consent to participate in voluntary FSTs/PBT. Never was, never has been.

Essentially all a cop is required to do in order to compel submission to a sobriety test is articulate reasonable suspicion of impairment.

Wrong. They need reasonable articulable suspicion to initiate a traffic stop, and they can request you take FSTs, followed by a PBT, as part of this stop. But these tests are voluntary. Refusing FSTs/PBT cannot be used against you, not even by the FAA. Only if he finds probable cause to arrest (refusing to participate in FSTs/PBT does not provide probable cause by itself), arrests you, gives you the opportunity to take a chemical test via either a calibrated breath machine (field breathalyzers are not , blood, or urine, and you refuse, can this be used against you. But even then he cannot "compel" you to take it because you can still refuse it. It's just going to count against you if you do.

There is legal precedent established by a kid who was pulled over for driving with his high beams on. Cop claimed to smell an overwhelming amount of alcohol. The suspect wanted to do a breathalyzer, decided to humor the cop with his FSTs/PBT while repeatedly saying to the cop "Let's do the breathalyzer already, let's get this over with", finally does the breathalyzer and blows a 0.00. Then the cop decides "Oh...you must have smoked weed", to which the kid explained he was on the college football team and they get tested every Friday. The cop says "Well today's Saturday", to which the kid replied "Weed is in your system for at least 30 days. I'd be off the team come next Friday." Cop arrests him anyway. He then sees a drug/alcohol specialist, who found that he was not under the influence nor impaired in any way, and sent him home. Kid has a huge lawsuit on the cop, who claimed qualified immunity. The circuit court found that because the cop had no probable cause to arrest, he does not get qualified immunity.

Even in matters of DUI, cops have no more rights on a DUI stop than in any other crime. There are no "exceptions" to DUI. They act like there are, but there are not. They just get away with a lot because people are afraid to fight it. Watch some sober DUI stops on YouTube. You'll figure out just what the cops are and are not allowed to do.

 

[Tarheelpilot]

If you refuse the test which follows an arrest, the FAA treats it as a positive test. Not the Preliminary Breath Test (PBT).

There is already a legal presumption that if you take the breath or chemical test within 45 minutes of the stop, the result is presumed to be your BAC at the time of operating. If you refuse a PBT, then get arrested and take the chemical test at the station, what would your refusal to take the PBT matter?

Remember, you only have to report "arrests". Not traffic stops that result in no arrest nor citation. If you refuse to participate in FSTs and/or a PBT, the cop knows they have no probable cause to arrest, and let you go without arrest, you wouldn't have to report this.

When you are asked to voluntarily take the FSTs/PBT, you are being detained, but you are not under arrest. You can refuse this all you want without repercussions. The FAA CANNOT use your refusal of FSTs/PBT against you.

There is NOT implied consent to participate in voluntary FSTs/PBT. Never was, never has been.


Wrong. They need reasonable articulable suspicion to initiate a traffic stop, and they can request you take FSTs, followed by a PBT, as part of this stop. But these tests are voluntary. Refusing FSTs/PBT cannot be used against you, not even by the FAA. Only if he finds probable cause to arrest (refusing to participate in FSTs/PBT does not provide probable cause by itself), arrests you, gives you the opportunity to take a chemical test via either a calibrated breath machine (field breathalyzers are not , blood, or urine, and you refuse, can this be used against you. But even then he cannot "compel" you to take it because you can still refuse it. It's just going to count against you if you do.

There is legal precedent established by a kid who was pulled over for driving with his high beams on. Cop claimed to smell an overwhelming amount of alcohol. The suspect wanted to do a breathalyzer, decided to humor the cop with his FSTs/PBT while repeatedly saying to the cop "Let's do the breathalyzer already, let's get this over with", finally does the breathalyzer and blows a 0.00. Then the cop decides "Oh...you must have smoked weed", to which the kid explained he was on the college football team and they get tested every Friday. The cop says "Well today's Saturday", to which the kid replied "Weed is in your system for at least 30 days. I'd be off the team come next Friday." Cop arrests him anyway. He then sees a drug/alcohol specialist, who found that he was not under the influence nor impaired in any way, and sent him home. Kid has a huge lawsuit on the cop, who claimed qualified immunity. The circuit court found that because the cop had no probable cause to arrest, he does not get qualified immunity.

Even in matters of DUI, cops have no more rights on a DUI stop than in any other crime. There are no "exceptions" to DUI. They act like there are, but there are not. They just get away with a lot because people are afraid to fight it. Watch some sober DUI stops on YouTube. You'll figure out just what the cops are and are not allowed to do.

If a cop asks you to blow and he has his pants on a refusal gets you arrested.

True 99.99% of the time.

 

[Ed Haywood]

If a cop asks you to blow and he has his pants on a refusal gets you arrested.

True 99.99% of the time.

How about an FST?

 

[Tarheelpilot]

How about an FST?

It was a joke man.

But kidding aside. If a LEO takes the time to pull someone over and the conversation starts with have you had anything to drink and they start asking for cooperation for FST or a breath test the reasonable suspicion of impairment already exists. Otherwise the traffic stop would not have been initiated.

There are cops out there that ask everyone they stop regardless of the business at hand if they have been drinking. If you made a vin diagram of those guys and *******s there would be one circle. They are also not terrible common in my experience. It’s reasonable to assume that if a LEO is asking you about impairment they already suspect impairment and can articulate why.

But I think Mr wilder is on to something. I encourage him to do exactly what he recommends at the first opportunity.

 

[Ed Haywood]

But I think Mr wilder is on to something. I encourage him to do exactly what he recommends at the first opportunity.

OK, amusing cop story. When I was in the Army at Fort Benning, I went to visit a buddy in south Georgia who was in the state police. I gave him an Army PT shirt as a souvenir. He gave me a hat with a logo that said "Georgia Governor's Task Force on Drug Eradication." Pretty obscure.

Driving back to Benning, I get pulled over. I zoomed right by him doing 10-15 over the limit. Dammit, he had me dead to rights.

As I'm grabbing my documents, I see the hat sitting on the seat. I put it on. Cop walks up, checks out my stuff, and then asks where I got the hat. I tell him my good friend down in Thomasville gave it to me. He says "Ok, well slow down, because the fellows up the road won't cut you a break like I will."

 

[Daleandee]

OK, amusing cop story. When I was in the Army at Fort Benning, I went to visit a buddy in south Georgia who was in the state police. I gave him an Army PT shirt as a souvenir. He gave me a hat with a logo that said "Georgia Governor's Task Force on Drug Eradication." Pretty obscure.

Driving back to Benning, I get pulled over. I zoomed right by him doing 10-15 over the limit. Dammit, he had me dead to rights.

As I'm grabbing my documents, I see the hat sitting on the seat. I put it on. Cop walks up, checks out my stuff, and then asks where I got the hat. I tell him my good friend down in Thomasville gave it to me. He says "Ok, well slow down, because the fellows up the road won't cut you a break like I will."

Many moons ago I had a similar situation as I had the business card of a neighbor & friend on the local police force. When stopped one night, as the officer came and asked for my license, registration, & proof of insurance, I just happened to pick up that business card along with the registration. When he saw it he asked about Jim my neighbor and when he knew we were friends he said, "you owe Jim a favor, be careful getting to the house" ...

 

[geezer]

It is not always blue to blue courtesy.

One Sunday, on a small county road, about 2 PM, I rounded an easy curve, and spotted an officer with radar gun, put on the brakes, and stopped beside him. I had been 5 over, and the limit reduced 10.

He asked for license and registration, studied them, and asked if I realized that I was going 45 in a 30?. I guess so, I canceled cruise control, and let it coast down.

i see that you are a Class A Commercial driver, so you have to report all tickets to your boss.

Yep, and to the training and safety department, too.

You do not need all that hassle for a violation in your own car. Drive the limit, slow with brakes, have a good day.

I did not tell him that my title was Senior Trainer in the training and safety department.

I wished him a good day too, and departed.

 

[Hengelo]

Really does seem like the kind of thing the AOPA would be well positioned to answer on a state by state basis.

 

[Matthew]

Heh, I forgot about getting pulled over by an MP on an Army base when I was in HS.

I was a dishwasher at an Officer’s Club back in high school. We got a call that the ice maker at the NCO Club was OTS and we needed to run an ice supply over, probably 8-9pm on a weekend.

My buddy and I pulled the trash can used for ice up next to the ice maker and started shoveling ice into the bucket. Somehow one of us had hit the latch on the lower clean out door and ice was starting to run out onto the floor. I reached down to shut it at the same time my buddy kicked it shut, on my fingers.

I wrapped my bleeding fingers in my apron and we rolled the bucket out to the club pickup truck. We bent over to pick up the ice bucket and lift it into the truck bed and my buddy tore out the whole back of his pants. He turned his apron around backwards to hide his shame.

Next adventure was deciding who got to drive. He had his license with him but I had left mine at home, many times I walked to work. So we figured he should drive. Then we realized it was a 3-speed on the column. Back in those days we all knew how to drive a manual but this was new to both of us. Once we finally figured out the gear pattern we headed out. We got to the parking lot exit and my buddy found out there was no power steering. So when we made that right turn we went wide and crossed the centerline. That’s when the lights came on. The fun thing about those days was the MPs weren’t much older than us. I don’t know what that guy was thinking about the possibility of pulling over an officer, but I don’t think he expected to see the two of us.

He did say he stopped us after he saw us weaving after leaving the club. We told him we were headed to the NCO club to deliver ice. My buddy had his apron on backwards, I was bleeding, but we did have that bucket of ice in the back and I’m pretty sure he didn’t want to hear the full story. He followed us over and left us alone after.

So that’s my story about being pulled over for suspicion of DUI.

Good times.

 

[Jon Wilder]

If a LEO takes the time to pull someone over and the conversation starts with have you had anything to drink and they start asking for cooperation for FST or a breath test the reasonable suspicion of impairment already exists. Otherwise the traffic stop would not have been initiated.

Cop needs more than reasonable articulable suspicion to make an arrest. He needs something called "probable cause". Refusing to participate in FSTs and/or a preliminary breath test, by itself, is not probable cause.

There are cops out there that ask everyone they stop regardless of the business at hand if they have been drinking. If you made a vin diagram of those guys and *******s there would be one circle. They are also not terrible common in my experience. It’s reasonable to assume that if a LEO is asking you about impairment they already suspect impairment and can articulate why.

Again, cause for a traffic stop. Not for an arrest, which probable cause is needed.

Now, if you refuse FSTs, preliminary breath test, AND you have alcohol on your breath, now they have probable cause.

"Oh well they can just say they smelled alcohol". What happens when your test comes back 100% clean? You now have grounds for a law suit because the officer wrongfully arrested you without probable cause (which negates their qualified immunity).

But I think Mr wilder is on to something. I encourage him to do exactly what he recommends at the first opportunity.

I absolutely will.

Do cops arrest without probable cause? All the time. Because people don't contest it. That's why they keep getting away with it because people these days don't fully know their rights. If everyone started learning and exercising their rights, this would be a lot less of an issue.