Refusing a sobriety test

[SkyHog]

No, I didn't get a DWI (I'm not retarded), but here's something we were discussing today:

If you get pulled over, and refuse to submit to a sobriety test, you get your license suspended for a year. If you get pulled over, and submit to a sobriety test and fail, you have your license suspended for a year, and deal with court and jail.

What am I missing? Why would anyone, when drunk, submit?

 

[AdamZ]

Can't speak for New Mexico Nick but in Pennsylvania If you refuse the test of blood, breath or urnie upon probable suspicion The DOT will suspend your license for one year. If you are then aquitted you license is still suspened for the one year. If you are convicted then the Court Orders your license suspended for one year (in addition to the suspension for the refusal) thus giving you a two year suspension.

Also in PA we have a diversionary program for first time offenders under certain circumstances that will allow you to avoid a criminal record and have your license suspended for one to three months.

 

[Eamon]

I would wait for till the last moment & refuse the breath & ask for a blood test. Then you get to burn off as much as you can for the next hour or so that it takes to get to a hospital.

 

[SkyHog]

Can't speak for New Mexico Nick but in Pennsylvania If you refuse the test of blood, breath or urnie upon probable suspicion The DOT will suspend your license for one year. If you are then aquitted you license is still suspened for the one year. If you are convicted then the Court Orders your license suspended for one year (in addition to the suspension for the refusal) thus giving you a two year suspension.

Also in PA we have a diversionary program for first time offenders under certain circumstances that will allow you to avoid a criminal record and have your license suspended for one to three months.

So - you're saying then that you could be arrested for a DWI without any proof that you were drunk, aside from refusal to take a sobriety test? (in PA of course).

 

[kevin47881]

So - you're saying then that you could be arrested for a DWI without any proof that you were drunk, aside from refusal to take a sobriety test? (in PA of course).

That's how most state laws are set up. Guilty until proven innocent.

 

[AdamZ]

So - you're saying then that you could be arrested for a DWI without any proof that you were drunk, aside from refusal to take a sobriety test? (in PA of course).

No, they need reasonable suspicion to ask you to take the test here. Even if you refuse to take the test you can be arrested for DUI there is other eveidence than chemical tests that can be used to convict.

 

[SkyHog]

No, they need reasonable suspicion to ask you to take the test here. Even if you refuse to take the test you can be arrested for DUI there is other eveidence than chemical tests that can be used to convict.

Gotcha, that's the part I was missing, and that explains why you're better off taking the test and failing I suppose.

 

[SCCutler]

If you get pulled over, and refuse to submit to a sobriety test, you get your license suspended for a year. If you get pulled over, and submit to a sobriety test and fail, you have your license suspended for a year, and deal with court and jail.

Well, Nick, most states (so far as I know) have "implied consent" statutes, by which you are deemed to have consented to take a test if you have a drivers' license.

What am I missing? Why would anyone, when drunk, submit?

Well, for one thing, peace officers tend to be very persuasive. It's in their nature.

Next, while good judgment would suggest you politely decline to submit to such a test, hey, guess what: drunks are not known for exercising good judgment!

My advice is routinely that you should politely, but firmly, decline to perform tasks or volunteer evidence. Granted, you will be subject to an automatic suspension, but if you've gotten this far, it's not as if the peace officer is deciding whether to arrest you on suspicion of DWI- he or she is simply gathering evidence against you, and you have the constitutional right not to testify against yourself.

---

Try this on for size:

Several cities in Texas are now adopting the practice of, when a driver is pulled over for suspicion of DWI, if he or she refuses to submit to a breathalyzer test, the PD will get an order from a magistrate and will draw blood for for a blood test, by force if necessary.


As for me, I am no constitutional scholar, but I think this is a denial of due process. But I am waiting on an opinion from minds much greater than mine.

 

[Let'sgoflying!]

Also in PA we have a diversionary program for first time offenders under certain circumstances that will allow you to avoid a criminal record and have your license suspended for one to three months.

Why??!!
Can there be any excuse these days, even for one time?
Maybe its for politicians/judges/other people currently 'in favor'?

 

[SCCutler]

I would wait for till the last moment & refuse the breath & ask for a blood test. Then you get to burn off as much as you can for the next hour or so that it takes to get to a hospital.

See my post above- the Police are taking the sample in the field, without your consent. Big Brother, anyone?

So - you're saying then that you could be arrested for a DWI without any proof that you were drunk, aside from refusal to take a sobriety test? (in PA of course).

They can still convict you on other evidence (and they certainly can, too).

 

[Maxmosbey]

In Iowa, and I think that it is pretty much universal, there is implied consent, which has been explained already. The difference between the suspension if you don't take the test, and the suspension if you do take the test, is the "work permit". If you do not take the test, your privilege to operate a motor vehicle is suspended for one year, win lose or draw. You just flat can't drive. If you do take the test, your privilege to operate a vehicle is suspended, however your are afforded waivers for certain circumstances. For example, you can get a permit to drive to and from work. If part of your work involves driving, you can get a permit for that. The husband of a woman I worked with, wrecked his truck and was arrested for DUI. He refused the test. He got convicted by the evidence that the cops presented in court. He worked on a union construction job that was thirty miles from his home, which was out in the sticks. He was unable to obtain a work permit to drive, and being unable to get to work, he lost his job. His lawyer tried to get him the work permit, but the administrative judge ruled that there are no exceptions to the implied consent. So this guy lives out in the county, and he can't even take care of his kids during the day, because he isn't allowed to drive, and if anything happened to the kids, he would not be able to take care of them. So, the wife leaves him at home, takes the kids to the sitter, and makes monthly payments to the lawyer, who pretty much didn't do anything to help this guy out, but charged him five thousand dollars for it anyway.

 

[gibbons]

But I am waiting on an opinion from minds much greater than mine.

There are none.

 

[izzydogg]

As a fireman who would lose his job, the solution is simple, don't drink and drive, not even one beer with dinner, not ever. This makes it simple. Then, when you do get pulled over you can act like the officer is wasting your time and his, it is very satisfying.
Later,
Don

 

[Maxmosbey]

Try this on for size:

Several cities in Texas are now adopting the practice of, when a driver is pulled over for suspicion of DWI, if he or she refuses to submit to a breathalyzer test, the PD will get an order from a magistrate and will draw blood for for a blood test, by force if necessary.


As for me, I am no constitutional scholar, but I think this is a denial of due process. But I am waiting on an opinion from minds much greater than mine.

From my experience, it is pretty hard to get a magistrate to issue a warrant for blood unless there is other circumstances involved. For example, vehicular homicide cases. If there is an accident that involves a fatality, it is almost a given that the magistrate will issue a warrant for blood, if there is other evidence that to show that alcohol is a contributing factor. It is not automatic though. The cop has to apply for it, and show reason for the request. It is essentially a search warrant that is issued. The defendant can then challenge the search warrant in court, if they so wish.

 

[Let'sgoflying!]

the solution is simple, don't drink and drive, not even one beer with dinne

yay, Don great idea.
A fine NYs Resolution for all of us, especially pilots. I am going to go for it, please join me.

 

[KennyFlys]

Well, Nick, most states (so far as I know) have "implied consent" statutes, by which you are deemed to have consented to take a test if you have a drivers' license.

That falls in line with those who seem to think they have rights which do not exist. I can't tell you how many cases I've seen here where a teenage driver has committed a vehicular offense with the adult privilege of driving then can hide behind being a minor. This would include a case a few years ago where a sixteen-year-old girl killed a young mother and her five-year-old son while racing through a subdivision and talking on a cell phone. Add to that, she was out in her mother's van without permission while heading home from seeing a boyfriend she was forbidden to see.

She got five years probation.

As for me, I am no constitutional scholar, but I think this is a denial of due process. But I am waiting on an opinion from minds much greater than mine.

I'm surprised that hasn't been challenged but I think it would survive if there is a clause for implied consent simply by applying for and receiving a driver's license. But, it should not go beyond actual blood-alcohol issues or other substance abuse while actually operating a vehicle.

 

[TangoWhiskey]

But I am waiting on an opinion from minds much greater than mine.

There are none.

Which? Opinions, or minds greater than Spikes??

 

[jesse]

I don't exactly remember Minnesota completely. But when you applied for your drivers license you signed an agreement that basically says if you refuse an alcohol test you were suspended for a year (might have even been revoked).

If the DUI were your first offense and you failed the alcohol test you would be suspended for 30 days. It's better to go for the blood test. Depending on location it might take two hours to get you to one. This may be enough to sober you up enough to pass. This is a better route for most.

I'm not sure how all states are. I have no idea what Nebraska was. But the first DUI offense in Minnesota wasn't a HUGE deal. A month's suspension or so and some jacked up insurance rates. Add another DUI or two and your life is going to not be so great.

Suspended for refusing to submit to an alcohol test or suspended for a DUI--either way--you're going to have to deal with the FAA. First offense isn't going to be the end of the world. Good luck getting a commercial pilot position though.

 

[gibbons]

...minds greater than Spikes??

Exactly!

 

[tlglenn]

I googled "arizona implied consent" and the first link was http://www.arizonaduilaw.com/PracticeAreas/Implied-Consent.asp

In Arizona refusing to consent is an administrative, not a criminal, violation.

 

[ScottM]

I have no love for DUI drivers. I do remember the days of it being ok to drink and drive, just not be drunk. I used to stop at the drive through liquor store on my way home from work, grab a beer and would drink it as I was driving my motorcylce home. This was Florida in the 1980's and it was perfectly legal.

 

[Henning]

No, I didn't get a DWI (I'm not retarded), but here's something we were discussing today:

If you get pulled over, and refuse to submit to a sobriety test, you get your license suspended for a year. If you get pulled over, and submit to a sobriety test and fail, you have your license suspended for a year, and deal with court and jail.

What am I missing? Why would anyone, when drunk, submit?

Right or wrong, the lawyers I know say if you know you're over, "Refuse to blow". You'll get an administrative suspension rather than a criminal conviction, and even if you have to hire a driver these days, it'll be cheaper in the long run.

 

[Obi Heed Kenobi]

I've always thought that the implied/express consent laws violated the 5th Amendment's ban against being compelled to testify against yourself. Threatening to withhold what is, in reality, a vital necessity in modern society if you don't testify against yourself - that seems to be compulsion to me.

But, our illustrious Supreme Court and various legislatures all disagree with me.

I suppose the Constitution goes by the wayside when a group of angry mothers gets together for the children.

 

[SCCutler]

From my experience, it is pretty hard to get a magistrate to issue a warrant for blood unless there is other circumstances involved. For example, vehicular homicide cases. If there is an accident that involves a fatality, it is almost a given that the magistrate will issue a warrant for blood, if there is other evidence that to show that alcohol is a contributing factor. It is not automatic though. The cop has to apply for it, and show reason for the request. It is essentially a search warrant that is issued. The defendant can then challenge the search warrant in court, if they so wish.

That's what's interesting about this current initiative- the magistrate is issuing the warrant for forcible blood collection pretty much on a "Xerox submission"- the officers know they're gonna get 'em, instantly and without the irritating necessity of evidence. It sort of makes the magistrate's role, and the requirement for a warrant, meaningless. Show me a "rubber-stamp" judge, and I'll show you a circumstance which cries out for legislative action. It might (or might not, I ain't sayin', 'cause my brilliance costs money ) be the right thing to do, to allow blood-taking by force, but if the current law requires a judge's intervention to allow it to be done, I am pretty certain that the law intended that the judge actually conduct something substantive, and if that needs to change, it should change in the legislature and on the statutory books.

That falls in line with those who seem to think they have rights which do not exist.

Like the "right" to drive a car? You'd be amazed (or, sadly, you probably would not) how many people truly believe that the license to drive is a right, and not a privilege.

yay, Don great idea.
A fine NYs Resolution for all of us, especially pilots. I am going to go for it, please join me.

Funny thing is, when I started flying, I dramatically curtailed my drinking (not that I was a lush before...), to the point that it is an occasional thing. I cannot say I never drink and drive, but it is a very rare thing, indeed, when I drink much at all. Having curtailed my drinking as much as I have, if/when I start, I am thinking about how I'll feel in the morning- and that's usually enough to cut it short.

 

[SCCutler]

Right or wrong, the lawyers I know say if you know you're over, "Refuse to blow". You'll get an administrative suspension rather than a criminal conviction, and even if you have to hire a driver these days, it'll be cheaper in the long run.

^^^^^^^^

What he said.

I've always thought that the implied/express consent laws violated the 5th Amendment's ban against being compelled to testify against yourself. Threatening to withhold what is, in reality, a vital necessity in modern society if you don't testify against yourself - that seems to be compulsion to me.

In a nutshell.

But, our illustrious Supreme Court and various legislatures all disagree with me.

I suppose the Constitution goes by the wayside when a group of angry mothers gets together for the children.

You REALLY don't want to get me started about MADD. Self-anointed experts (without benefit of actual knowledge) on traffic safety.

 

[tdager]

I would refuse to blow...period.

As for drinking and driving....there is be drunk and being sensible. I am sorry folks, but unless you weigh 90 pounds and are genetically predisposed to extreme alchohol affects, a single beer over an hour long dinner will put you NO WHERE near any legal limit to drive. Hell you are as much affected by that cold medicine you took as a single beer.

BTW...flying is a different matter.

 

[tdager]

I've always thought that the implied/express consent laws violated the 5th Amendment's ban against being compelled to testify against yourself. Threatening to withhold what is, in reality, a vital necessity in modern society if you don't testify against yourself - that seems to be compulsion to me.

But, our illustrious Supreme Court and various legislatures all disagree with me.

I suppose the Constitution goes by the wayside when a group of angry mothers gets together for the children.

David...I hear this argument but it is not true. A vehicle is NOT a necessity, however it is a choice enabler. Ask anyone living in one of the major cities if they NEED a car? Nope...

 

[Lawreston]

[SNIP]

Suspended for refusing to submit to an alcohol test or suspended for a DUI--either way--you're going to have to deal with the FAA. First offense isn't going to be the end of the world. Good luck getting a commercial pilot position though.

Being a performer I'm rarely absent from the post-rehearsal(or performance) gatherings of cast members. Never an alcoholic drink for me while there.
It not uncommon to see many "stops" being conducted within the 30 to 45 minute period after "Last Call." If I get stopped, I'm ready. When the flashlight shines on the wallet/credit card case I'm opening, in full vision is the paper which denotes STUDENT PILOT CERTIFICATE. Also visible are membership cards from Aircraft Owners and Pilots Association; Cessna Pilots Association. On the back of my truck(most commonly used vehicle) is a license plate, N7872G; and the tailgate bumper sticker reads, My Other Truck is a CESSNA C-172L Skyhawk.

"Have you had anything to drink, Sir?"

"Are you kidding? In my spare time I'm permitted to fly airplanes. One can of beer, if I'm tired and haven't eaten, could royally screw up my spare time. But thank you for asking."

HR

 

[Obi Heed Kenobi]

David...I hear this argument but it is not true. A vehicle is NOT a necessity, however it is a choice enabler. Ask anyone living in one of the major cities if they NEED a car? Nope...

That's part of the theory behind the rationale for it - the legal fiction that a car is not necessary. And I completely disagree with it.

A car may not be necessary for urban hipsters (that about sums up my opinion of cityfolk, I grew up in an area that has a big urban/rural dichotomy ). If, however, you live anywhere except NYC, Atlanta, LA, and a handful of others - a car becomes a necessity.

I say that because, regardless of the fact that driving is considered a privilege (which is also a convenient legal fiction), we have created a society where motorized transportation is a virtual requirement for life. For instance, in Clear Creek County, there is no hospital. There isn't even an outpatient clinic. Ambulance service can be unreliable, particularly given the weather. So, if you get in trouble, you HAVE to drive either to Summit (about 30-40 miles) or to Denver (about the same).

That is why I say that driving is a de facto necessity, even though it's not recognized as such.

It can be argued that is merely a result of peoples' voluntary choice to live an isolated life. I, on the other hand, view it as a violation of due process and equal protection - it is de facto penalizing the rural person more than the urban person, for the exact same crime (and I would actually argue that a DUI in an urban setting is de facto worse than a DUI in a rural setting - higher probability of accident).

The government recognizing driving as a privilege rather than something greater (I'm not ready to declare it a right) gives the government more control over our lives. While I'm not per se opposed to government control, I view it warily.

Given the fact that driving is critical to many peoples' businesses or well-beings, I simply cannot accept the government sticking its head in the sand and not recognizing that. Particularly when that sand-sticking is done for purposes of control.

 

[Henning]

That's part of the theory behind the rationale for it - the legal fiction that a car is not necessary. And I completely disagree with it.

A car may not be necessary for urban hipsters (that about sums up my opinion of cityfolk, I grew up in an area that has a big urban/rural dichotomy ). If, however, you live anywhere except NYC, Atlanta, LA, and a handful of others - a car becomes a necessity.

LA?!?!? If you have a job and live in LA, you need a car...period...end of story.

SF, NYC, DC and Boston are the only places I can think of where Public Trans is a rational choice.

 

[Obi Heed Kenobi]

LA?!?!? If you have a job and live in LA, you need a car...period...end of story.

SF, NYC, DC and Boston are the only places I can think of where Public Trans is a rational choice.

I've actually never been to CA - so please excuse my ignorance!

I forgot about public transportation. It's easy for folks in those cities to say, "well, if you can't drive, just take the bus."

Public transportation simply does not exist in rural areas.

 

[alaskaflyer]

Late to the game here, I generally agree with what folks have said above from a factual standpoint. But I would add two things that are connected to Nick's question that are important to remember if you are going to drive while under the influence of an intoxicant (which, I might add, could be a perfectly legal prescription or OTC medication - hmmm that's three things):

In many states and in federal jurisdictions there are two DUI laws, per se AND true DUI. IOW you can theoretically be arrested and convicted even if you test less than .08, if your driving behavior justifies it.

The other thing...I can't talk about all states but in at least two (plus again in federal jurisdictions) your refusal to submit to a blood, breath or other sobriety test can be introduced as evidence in your DUI trial. Whether your jury or judge recognizes it as evidence of a guilty mind is up to how well each attorney argues

 

[markb5900]

As was already stated. Don't drink or take drugs and drive and you don't have a problem.
If you insist on doing it and endangering the lives of every other person on the road you might come across.
Then by nature of you getting your driver's license, in most states you HAVE CONSENTED to getting a test done.
A good lawyer will probably get you "off" with little or nothing.
As we all as pilots know, we manage the "risk" every time we make the go no go decision, but if you don't know, after just ONE drink your capacity to respond has been changed and you MAY kill someone.
The majority of DWI accidents the drunk lives because they are "loose" and the family they hit gets killed.

Please don't do it. If you DO, then I have absolutely NO sympathy for you and Law Enforcement should use EVERY means necessary to convict you and SEND YOU TO JAIL!

Mark B

 

[poadeleted20]

Several cities in Texas are now adopting the practice of, when a driver is pulled over for suspicion of DWI, if he or she refuses to submit to a breathalyzer test, the PD will get an order from a magistrate and will draw blood for for a blood test, by force if necessary.


As for me, I am no constitutional scholar, but I think this is a denial of due process. But I am waiting on an opinion from minds much greater than mine.

Sounds like a standard search warrant procedure, which is exactly what due process is about. The police must submit sufficient evidence for the magistrate to believe that the individual is concealing evidence of a crime, and then the warrant to seize the evidence is issued. I simply do not see this as "self-incrimination" any more than the taking of fingerprints or DNA once there is legal justification to take them.

I've always thought that the implied/express consent laws violated the 5th Amendment's ban against being compelled to testify against yourself. Threatening to withhold what is, in reality, a vital necessity in modern society if you don't testify against yourself - that seems to be compulsion to me.

Again, the question here is whether or not physical evidence of your blood alcohol level is any different than your fingerprints or your DNA, both of which may be taken against your will once the legal threshold for such taking is established. Personally, I don't see this as a violation of either due process (there are legal standards for obtaining authorization to take them) or self-incrimination (it is well-established that physical evidence is not considered self-incrimination).

 

[KennyFlys]

Ron, having some posting difficulties, are ya?

 

[cherokeeflyboy]

what happens to your pilots certificate and privileges if you refuse?
if convicted?

 

[gibbons]

OK, OK!!! Gee Ron, we get the point.

 

[gprellwitz]

Ron, having some posting difficulties, are ya?

He just wanted to get his point across. and across. and across. and across!

 

[SCCutler]

Well, I am neither a criminal defense lawyer, nor a constitutional scholar, but I still think that taking blood by force is wrong.

Now, I have no concern about the refusal to submit to the test being presented to the fact-finder- a risk of the choice.

 

[KennyFlys]

Well, I am neither a criminal defense lawyer, nor a constitutional scholar, but I still think that taking blood by force is wrong.

I have mixed feelings over it. I go along with implied consent when accepting issuance of a driver's license. But, it should not be used for prosecution of other substance abuse beyond the act of driving under the influence.

It should also not be an automatic back door into a search of the vehicle. That must be only by consent of the driver or court order. The thing I'm mostly concerned with is a civil agreement under driver's license issuance being a back door to other criminal prosecution beyond the DUI.

I'm not saying I'm in favor of an "out" for drug use or otherwise. But, I am concerned with the rights of the guilty being protected lest they be horribly abused for one who is completely innocent.