Field sobriety tests, How to handle traffic stops?

[Hengelo]

The thing about the "one time in the (insert military branch of your choice)" stories is that they are always three degrees more bonkers than you think they're going to be at the start of them, and usually stone cold true.

 

[Hengelo]

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

No Blow is a No Go The Implications of Refusing a Breathalyzer for Pilots

pilot-protection-services.aopa.org

 

[Doctor Bob]

I was on a jury in Georgia for a DUI-Less safe case. None of us on the jury had heard of that before. Short version of the story, we watched the kid ace all of the field sobriety tests and the state had no evidence of his BAC. The cop dash cam was positioned on the defendant’s back while the cop did the horizontal gaze test (think that is what it’s called) and supposedly he also tested positive for alcohol on the portable unit. Neither of which the camera picked up. Cop stated he smelled like a fruity beverage.

Needless to say we came to the conclusion that no actual proof = not guilty in about 5 minutes. We stayed in there a bit longer to “deliberate.”

My point is this: imo, the case should have never been tried. The defendant had to pay a lawyer thousands to take a case all the way to a jury trial. Is there no recourse? The state should have to pay him back all his legal fees. So basically, you are guilty unless you can afford your innocence.

 

[midlifeflyer]

I was on a jury in Georgia for a DUI-Less safe case. None of us on the jury had heard of that before. Short version of the story, we watched the kid ace all of the field sobriety tests and the state had no evidence of his BAC. The cop dash cam was positioned on the defendant’s back while the cop did the horizontal gaze test (think that is what it’s called) and supposedly he also tested positive for alcohol on the portable unit. Neither of which the camera picked up. Cop stated he smelled like a fruity beverage.

Needless to say we came to the conclusion that no actual proof = not guilty in about 5 minutes. We stayed in there a bit longer to “deliberate.”

My point is this: imo, the case should have never been tried. The defendant had to pay a lawyer thousands to take a case all the way to a jury trial. Is there no recourse? The state should have to pay him back all his legal fees. So basically, you are guilty unless you can afford your innocence.

Generally speaking, there is no recourse unless you can meet the burden of proof for a false arrest/civil rights violation. It's not, "I was found not guilty in 5 minutes," but, "the officer had no probable cause for the arrest." That's a tough one. And remember that what the jury hear can sometimes be limited by evidentiary rules. So you may not have heard the whole story. I've seen lots of cases like that; I was even on a jury for one.

"Afford" depends a bit on the state. The constitutional right to counsel in criminal cases require furnishing defense counsel for indigents in criminal cases only applies if a jail sentence is in play(*). But that doesn't help much of the middle who are not indigent but practically speaking can't afford an attorney.

(*) The rules in the three states where I have been licensed to practice are the same and I suspect they are similar in most states, but implementation can be very different. In some, appointments for indigents was pretty much universal so long as the statute provided the possibility of a jail sentence. In others, we see the prosecution taking jail off the table so the rule would not apply. Having been licensed in three states, I was able to see the difference - convictions in one state that would have been disposed of with court diversion in another.

 

[Tarheelpilot]

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.


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).


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.

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.


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).


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.

I find it amusing that you think I don’t very clearly understand reasonable suspicion and probable cause. Just go do you man and share your ignorance with someone else.

I’m out.

 

[Ed Haywood]

I find it amusing that you think I don’t very clearly understand reasonable suspicion and probable cause. Just go do you man and share your ignorance with someone else.

I’m out.

I have employed numerous lawyers, including some with white shoes. A prequalification for the job is the conviction that you are smarter than everyone else. The truly smart ones, like my wife who is a federal courtroom badass, recognize the limits of their education and understand that not all the world is a courtroom.

 

[geezer]

I think Jon Wilder needs to volunteer for 6 months of Friday evening shift drunk patrol with an experienced officer. They can determine what is probable cause, over and over, assuring that all the real drunks ARE stopped, and no sober drivers are stopped.

There is a price paid for those that are not stopped. Usually by someone else. I knew the young officer who did not arrest a drunk, and 15 minutes later, he was dispatched to a car crash with 4 fatalities. Same car and driver. He resigned and changed his career path.

So, Jon, are you up to volunteering? Most police forces will do this.

 

[pfarber]

If you want to be in the 97%, start by recognizing the person making the decision will be influenced by your behavior

There should be little OBJECTIVITY in enforcing the law. Granted in the USA there is not ONE person who can go 24 hours without breaking SOME code/regulation/law. But we rely on the objectivity (kindness?) or not wanting to do paperwork all day of the LEO.

Case in point, in some states it is illegal (punishable by up to a $500 fine) to idle your vehicle for more than 15 minutes on a public road. When I was in Bangor WA the law was you simply cannot even idle.. at all, even in your own driveway. Some municipalities even state the you 'should' turn off the engine. Not sure how a law so vague is enforceable... but you can get a ticket, have to go to court etc. So we rely on the kindness of LEO (or their desire to not do paperwork) but if you are the wrong type of person, you can legally get jammed up for $500.

Land of free? Not really... we just hope the LEO hates paperwork.

 

[Jon Wilder]

There should be little OBJECTIVITY in enforcing the law. Granted in the USA there is not ONE person who can go 24 hours without breaking SOME code/regulation/law. But we rely on the objectivity (kindness?) or not wanting to do paperwork all day of the LEO.

I would argue that enforcing the law should 100% be done OBJECTIVELY (meaning with lack of bias, judgement, or prejudice). Perhaps you're looking for a different word?

 

[Brad W]

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" ...

I was pulled over once on my way home from work for speeding. I don't recall how fast, but it wasn't egregious. Regardless. I was speeding and he had me.
But he gave me a warning

I've wondered if it was because at the time, I was volunteering with my son's Cub Scout Pack...or was this later when we were with the Boy Scout Troop.... I'd held several positions through those years. I think this was in the time that I was the Cubmaster for the pack.
Regardless, I guess this must have been the day after our Pack meeting and I had my uniform shirt hanging on the back of my seat.... along with magnet "bumpersticker" on the tailgate of my truck advertising the Pack.
Anyway, I wonder if he cut me slack for that.

 

[Hang 4]

I would argue that enforcing the law should 100% be done OBJECTIVELY (meaning with lack of bias, judgement, or prejudice). Perhaps you're looking for a different word?

So you're a LEO and you see a car weaving on the road at night. You suspect impaired driving and decide to pull the driver over. Is that not "judgement"?

 

[Half Fast]

So you're a LEO and you see a car weaving on the road at night. You suspect impaired driving and decide to pull the driver over. Is that not "judgement"?

Sounds more like objective criteria to me.

 

[midlifeflyer]

There is a price paid for those that are not stopped. Usually by someone else. I knew the young officer who did not arrest a drunk, and 15 minutes later, he was dispatched to a car crash with 4 fatalities. Same car and driver. He resigned and changed his career path.

That's the scenario that pretty much triggered the societal change in attitude toward drinking. MADD (Mothers Against Drink Driving) was formed in 1980. That same year a lawsuit was filed against the small town of Ware, Massachusetts when a police officer stopped a drunk driver and let him go, after which the driver hit a car with a family of four, leaving two dead and two injured. It was the leading case on the issue of municipal liability for police negligence.
For anyone who want to read it... http://masscases.com/cases/sjc/392/392mass745.html

 

[geezer]

The event I described ended 3 blocks from my house.

4 families lost their breadwinner.
The officer quit and took up a different profession, in another state.
The bank will not collect the rest of the balance.
The tree lost too much bark, and died.

In descending order of value lost.

My immediate family has lost 3 totaled cars to drunk drivers, very fortunately, we are dedicated seat belt users, minimal injuries.

I generally agree with MADD.

 

[wellknow]

That's the scenario that pretty much triggered the societal change in attitude toward drinking. MADD (Mothers Against Drink Driving) was formed in 1980. That same year a lawsuit was filed against the small town of Ware, Massachusetts when a police officer stopped a drunk driver and let him go, after which the driver hit a car with a family of four, leaving two dead and two injured. It was the leading case on the issue of municipal liability for police negligence.
For anyone who want to read it... http://masscases.com/cases/sjc/392/392mass745.html

and the founder of madd went on to become a dc lobbyist

 

[midlifeflyer]

and the founder of madd went on to become a dc lobbyist

...with the American Beverage Institute, no less.

 

[Ed Haywood]

Most people understand that drunk driving kills thousands of innocent people every year, and DUI laws have to be enforced to protect all of us and our families. That means cops out on dark roads at night, observing behavior and making subjective decisions on who gets arrested and given an objective blood test. There is no way to avoid that, and no way to make it 100% error free. It is what it is.

In my opinion, those who get indignant about it tend to be entitled narcissists.

 

[midlifeflyer]

Most people understand that drunk driving kills thousands of innocent people every year, and DUI laws have to be enforced to protect all of us and our families. That means cops out on dark roads at night, observing behavior and making subjective decisions on who gets arrested and given an objective blood test. There is no way to avoid that, and no way to make it 100% error free. It is what it is.

In my opinion, those who get indignant about it tend to be entitled narcissists.

Not sure about entitled narcissists. Perhaps more like a different, arguably limited, viewpoint or even a health suspicion of law enforcement. But having tried a good number of DUIs in my earlier life, I agree with the point.

 

[Daleandee]

I would argue that enforcing the law should 100% be done OBJECTIVELY (meaning with lack of bias, judgement, or prejudice).

As Alan Jackson would sing ... "but here in the real world"

 

[Jon Wilder]

So you're a LEO and you see a car weaving on the road at night. You suspect impaired driving...

No, I clearly see a vehicle driving erratically and disorderly. To assume the driver is intoxicated before I've even stopped him would be a biased assessment. Could be distracted driving (driving & texting). For all I know, they may be experiencing a cardiac event. But the weaving is enough to give me reasonable articulable suspicion that something is wrong.

...and decide to pull the driver over.

Yes I pull the driver over to learn why the driver is driving in that manner. But until I stop them and make contact, I have no clue as to the "why".

Is that not "judgement"?

It would be judgement to assume that the cause of the driver's weaving is drunk driving before I've even stopped the vehicle.

 

[Dana]

It would be judgement to assume that the cause of the driver's weaving is drunk driving before I've even stopped the vehicle.

Right, these days it's just as likely that they're texting on their phone.

 

[Jon Wilder]

Right, these days it's just as likely that they're texting on their phone.

Exactly. Or the wife and him had a disagreement, she got physical and he's trying to fight her off. Several ways this could play out.

 

[Half Fast]

Exactly. Or the wife and him had a disagreement, she got physical and he's trying to fight her off. Several ways this could play out.

“Honest, officer, there was a spider in the car!”

 

[EdFred]

“Honest, officer, there was a spider in the car!”

Had that happen once. Had the top off, climbed in, rolling down the road, and a huge hairy looking spider ran up my bare leg. There was swerving, stopping, and the heebie jeebie dance done on the side of the road.

 

[Ed Haywood]

Had that happen once. Had the top off, climbed in, rolling down the road, and a huge hairy looking spider ran up my bare leg. There was swerving, stopping, and the heebie jeebie dance done on the side of the road.

I used to laugh at that, but a spider bit me on the leg in my hangar, and it left a gnarly mark for a week or two.

 

[Flatiowa]

“Honest, officer, there was a spider in the car!”

My grandma honestly pulled that in the late 1980’s (big block early 1970’s land ship Buick doing +100 mph to get to bingo… “a bee stung me and I’m afraid I am having an allergic reaction”.. she missed bingo and got a hospital bill, but kept her DL). (Funny fact she always kept a dead hornet in the ash tray after that and still drove like a maniac until she passed away).

 

[Jon Wilder]

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.

Far from correct.

Implied consent only comes into play once probable cause is established. Implied consent does not require you to assist officers in the establishment of probable cause.

Probable cause for a DUI arrest requires totality of circumstances (it can't be based solely on any one thing). If they're asking you to do field sobriety tests, this is because they do not yet have probable cause, and they are asking you to help the officer(s) establish probable cause. But you are under no obligation to perform FSTs, and they wouldn't ask for FSTs if they had probable cause.

Even the smell of alcohol by itself is not enough to establish probable cause. But it can factor into the establishment of probable cause.

Now if they smell alcohol, they can produce video of you driving erratically, you exhibit slurred speech when speaking with the officers, fumbling to produce documents that are asked for, all of this combined (totality of circumstances) establishes probable cause.

If you refuse any implied consent chemical test, your license is suspended as a result, your case goes to court, and the court finds no probable cause, the state driving authority (DMV, Secretary of State, etc) has to reverse any license suspension that was based upon implied consent.

 

[Ed Haywood]

they are asking you to help the officer(s) establish probable cause.

Or because the officer is trying to decide whether to haul you in for a blood test. I would imagine making a habit of arresting people who later pass the blood test is frowned upon in performance reviews.

 

[Jon Wilder]

Or because the officer is trying to decide whether to haul you in for a blood test.

They have to elevate reasonable articulable suspicion to probable cause in order to do that...as I just stated. Implied consent only comes into play when probable cause is established under the totality of circumstances. Thus they are asking for you to assist them in establishing probable cause, which you are under no obligation to do. They cannot arrest you for DUI if they cannot elevate reasonable articulable suspicion to probable cause under the totality of the circumstances.

What you decide to put into that closed universe of the totality of the circumstances is 100% on you. This is why it is super important that you don't answer questions and you refuse all field sobriety tests...especially if you know that you are innocent (they're not looking for innocence, they are looking for what can be used against you).

I would imagine making a habit of arresting people who later pass the blood test is frowned upon in performance reviews.

Yet it still happens frequently.