Refusing a sobriety test

[markb5900]

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.

If you have nothing to hide, what is the problem
You get pulled over they ask for permission to search the vehicle, if you aren't doing anything illegal the grant it.
If you are, then that is YOUR fault not the laws fault and you DESERVE to go to jail

Mark B

 

[KennyFlys]

If you have nothing to hide, what is the problem
You get pulled over they ask for permission to search the vehicle, if you aren't doing anything illegal the grant it.
If you are, then that is YOUR fault not the laws fault and you DESERVE to go to jail

Mark B

I agree with you. My only concern is insuring there are no shortcuts for the renegade who would rather have a collar and subsequent conviction without regard for one's rights.

To put it another way, I'm more concerned with the rights of one who is innocent and simply suspected with no evidence. Such has happen with no more than a simple and stupid remark without first thinking.

 

[Henning]

If you have nothing to hide, what is the problem
You get pulled over they ask for permission to search the vehicle, if you aren't doing anything illegal the grant it.
If you are, then that is YOUR fault not the laws fault and you DESERVE to go to jail

Mark B

Because cops have been known to plant evidence, that is why we have the right to refuse the search if they have no PC.If all cops were honest, no worries, but from what I have seen both here and abroad, I worry.

 

[jesse]

If you have nothing to hide, what is the problem
You get pulled over they ask for permission to search the vehicle, if you aren't doing anything illegal the grant it.
If you are, then that is YOUR fault not the laws fault and you DESERVE to go to jail

Mark B

I wouldn't exactly trust all the cops in certain parts of this country. That said--the issue isn't even that. It's hard to tell what can be found in your vehicle that they may connect to some criminal activity you had nothing to do with.

 

[alaskaflyer]

I wouldn't exactly trust all the cops in certain parts of this country. That said--the issue isn't even that. It's hard to tell what can be found in your vehicle that they may connect to some criminal activity you had nothing to do with.

Hmmm ...I probably can in MY vehicle.

Anyway, there are five ways I can lawfully search your vehicle:

1. Articulatable probable cause that evidence, contraband, or fruits of a crime might exist in there (or a criminal is hiding in there)
2. I've impounded it for some legal or public order reason
3. I've arrested an occupant
4. Reasonable suspicion exists that a weapon might be in there - "vehicle frisk"
5. Consent

Simplified and in a nutshell. Each requires different scopes of search which I omitted. Note that each is supported separately by completely different court rulings and theories. Also note that nowhere is a warrant or judge mentioned.

I also have to sign onto Ron's statement above. While the law more closely examines your right to be secure in your person (against unreasonable searches and seizures) compared to your places and effects, in the end it is what society decides is reasonable. The relatively minor inconvenience of a blood draw (with a warrant) compared to society's interest in stopping DUI? You decide.

 

[Obi Heed Kenobi]

...
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 having to deliver physical evidence in your is not considered self-incrimination).

The difference I see between "implied consent" and fingerprints/DNA is that there is a mandatory penalty (beyond implication in a crime) for not taking the breathalyzer. That is the quintessential definition of compelling testimony. I.E. - don't testify against yourself, and you will suffer repercussions. That is simply not there with fingerprinting and DNA - at best (or worst, depending on your view), your DNA or fingerprints implicate you in another crime. You don't suffer a penalty for not disclosing them.

 

[Obi Heed Kenobi]

Hmmm ...I probably can in MY vehicle.

Anyway, there are five ways I can lawfully search your vehicle:

1. Articulatable probable cause that evidence, contraband, or fruits of a crime might exist in there (or a criminal is hiding in there)
2. I've impounded it for some legal or public order reason
3. I've arrested an occupant
4. Reasonable suspicion exists that a weapon might be in there - "vehicle frisk"
5. Consent

Simplified and in a nutshell. Each requires different scopes of search which I omitted. Note that each is supported separately by completely different court rulings and theories. Also note that nowhere is a warrant or judge mentioned.

Excellent list of the exceptions to the warrant requirement. While I don't agree with numbers 2 or 4, both of those are nevertheless justified by the law.

...The relatively minor inconvenience of a blood draw (with a warrant) compared to society's interest in stopping DUI? You decide.

That is an "end justifies the means" approach. Maybe that's what we (in a collective sense) want for society, but I'm fairly certain that would not be a step in the right direction.

It's really no different than "national security" justifying everything the government wants to do.

 

[flyingcheesehead]

I'm almost positive that here in Wisconsin, refusal constitutes a confession of drunk driving. Penalties are the same.

Of course, since we're the only state where drunk driving isn't a criminal offense... Might as well drink up!

 

[tonycondon]

today on Paul Harvey, FWIW:

guy crashed his truck into a tree, arrested for drunk driving and not wearing a seatbelt. In the right seat of his pickup, unhurt, was a 12 pack of beer, securely buckled to the seat!

 

[mikea]

...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.

Bill Shatner is on constant TV ads here where he says, "Know your rights. ...Stick it to the insurance company!" And the phone number is like 800-MYRIGHTS

So I guess the founding fathers put "The right to sue deep pockets in civil court for lottery judgment shall not be denied." right there in the U.S. Constitution. The 666th amendment?

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.

I avoid flying within 24 hours of having any drink, meaning I can't drink the day before, just in case it makes me sleepy or less sharp.

 

[SkyHog]

If you have nothing to hide, what is the problem
You get pulled over they ask for permission to search the vehicle, if you aren't doing anything illegal the grant it.
If you are, then that is YOUR fault not the laws fault and you DESERVE to go to jail

Mark B

I disagree for the same reasons I disagree with letting a police officer search my house without a warrant or probable cause. Not because I don't trust them (more and more lately I don't), but because we have rights as citizens and as soon as we forfeit them because we have nothing to hide, then it becomes harder to actually defend ourselves against an overly oppressive government.

 

[DeeG]

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.

bad move, Grasshopper. Keep in mind that PBT's (the portable breathalizers) and the ones at the jail need to be calibrated on a regular basis and have been known to fail from time to time. Many a person, with the help of a good attorney, has escaped conviction on that. Blood tests, however, seldom lie,and have been known to show a higher BAC than a breath test. And in many places, you won't get taken to the local hospital. The officer will call dispatch on the radio and ask them to send an aid crew to the jail, or, some jails have nurses on staff that can draw blood.

 

[Maxmosbey]

If you have nothing to hide, what is the problem
You get pulled over they ask for permission to search the vehicle, if you aren't doing anything illegal the grant it.
If you are, then that is YOUR fault not the laws fault and you DESERVE to go to jail

Mark B

Around the mid nineties, they started teaching cops to ask to search a person's car or their person whenever they stopped someone for something, no matter how minor. I always thought that it was a fishing trip, and it got cops to stopping cars for all kinds of minor infractions. Some cops really started carrying it too far. I always wondered why people would let cops look through their stuff, but they do, all the time. Allowing the cops to search your car, just because they stopped you for nothing, just encourages them to stop other people for next to nothing, and search their cars. I was a cop for twenty-nine years, and I have to tell you, that I wouldn't let the cops search my car, my house, or my person, without a warrant. If for no other reason than to keep then honest.

 

[DeeG]

While I don't agree with numbers 2 or 4, both of those are nevertheless justified by the law.

#2 was supposed to be as a CYA for the officer and the tow company. Person gets arrested, car gets towed, person gets out of jail, picks up the car and ~gasp!~ person claims that a suitcase with $5000 in cash and a couple of Rolexs (Rolexii???) is missing.

Lots of officers take advantage of that, though. Hmmm.... I technically don't have PC to search the vehicle, BUT, since this guy is going to jail, we really don't want to leave the car here out on the highway where it could be broken into or cause an accident, now would we?

 

[SCCutler]

I disagree for the same reasons I disagree with letting a police officer search my house without a warrant or probable cause. Not because I don't trust them (more and more lately I don't), but because we have rights as citizens and as soon as we forfeit them because we have nothing to hide, then it becomes harder to actually defend ourselves against an overly oppressive government.

Thank you, Nick. I am not quite ready to hand over all rights to Big Bro.

 

[Obi Heed Kenobi]

#2 was supposed to be as a CYA for the officer and the tow company. Person gets arrested, car gets towed, person gets out of jail, picks up the car and ~gasp!~ person claims that a suitcase with $5000 in cash and a couple of Rolexs (Rolexii???) is missing.

Lots of officers take advantage of that, though. Hmmm.... I technically don't have PC to search the vehicle, BUT, since this guy is going to jail, we really don't want to leave the car here out on the highway where it could be broken into or cause an accident, now would we?

I believe the plural of Rolex would be "Roleges" . . . I am a Latin nerd.

Ironically, "lex" in Latin means "law." Fitting!

And excellent clarification. It's a good example of how civil liability can affect substantive rights re: criminal law.

There are other areas where that happens. Domestic violence is the first that comes to mind. In many states, if the police get a call about domestic violence and see almost ANY evidence of it, arrests are mandatory, even if it is an incredibly weak case.

That is because IF one of the parties shoots the other party, the police department can the be sued successfully for negligence in not arresting someone - and thereby preventing the incident.

That's crap, and that is another great example of how our runaway civil liability system has impacts on the rights that REALLY matter - in this case, the right to be free from excessive government interference.

 

[Obi Heed Kenobi]

...
There are other areas where that happens. Domestic violence is the first that comes to mind. In many states, if the police get a call about domestic violence and see almost ANY evidence of it, arrests are mandatory, even if it is an incredibly weak case.

That is because IF one of the parties shoots the other party, the police department can the be sued successfully for negligence in not arresting someone - and thereby preventing the incident.

That's crap, and that is another great example of how our runaway civil liability system has impacts on the rights that REALLY matter - in this case, the right to be free from excessive government interference.

P.S. - if I'm wrong on the reasons for the existence of that policy, please correct me. It's based on speculation on my part, and I don't know it for a fact - it's just my best guess, because that policy would otherwise make no sense.

And I'll also make clear that I don't blame the police for protecting themselves (and the taxpayers' wallets) through that policy - I just meant that to highlight that our civil liability system (read: monster) has impacts in areas beyond the wallets of the parties to the civil cases.

 

[mikea]

#2 was supposed to be as a CYA for the officer and the tow company. Person gets arrested, car gets towed, person gets out of jail, picks up the car and ~gasp!~ person claims that a suitcase with $5000 in cash and a couple of Rolexs (Rolexii???) is missing. ...

We know that can't happen because the cops would have arrested the cash for being drug related.

http://www.omaha.com/index.php?u_page=2798&u_sid=10231335

 

[jesse]

Hmmm ...I probably can in MY vehicle.

Anyway, there are five ways I can lawfully search your vehicle:

1. Articulatable probable cause that evidence, contraband, or fruits of a crime might exist in there (or a criminal is hiding in there)
2. I've impounded it for some legal or public order reason
3. I've arrested an occupant
4. Reasonable suspicion exists that a weapon might be in there - "vehicle frisk"
5. Consent

Simplified and in a nutshell. Each requires different scopes of search which I omitted. Note that each is supported separately by completely different court rulings and theories. Also note that nowhere is a warrant or judge mentioned.

I also have to sign onto Ron's statement above. While the law more closely examines your right to be secure in your person (against unreasonable searches and seizures) compared to your places and effects, in the end it is what society decides is reasonable. The relatively minor inconvenience of a blood draw (with a warrant) compared to society's interest in stopping DUI? You decide.

There is a lot of grey area in there. It wasn't but a couple months ago that I had my vehicle searched in Kansas. The reason? He said it was because I was an out of state vehicle on the interstate and could be runnings drugs. Did I have anything to hide? No. Was I sitting there going "oh ****" trying to think of what he might deem a reason to ruin my night? Yes. Did he come up with anything--Nope--but he sure tried.

I have spent almost my entire life growing up around police. I can't think of one of them that wouldn't joke about how they could come up with a reason to search a vehicle in any situation. Perhaps you are the exception to the rule--but I've known plenty of "good people" cops that have the "you have no rights" attitude.

Small town cops get bored. They do stupid things and bend the rules their way from time to time. This much I know.

 

[alaskaflyer]

There is a lot of grey area in there. It wasn't but a couple months ago that I had my vehicle searched in Kansas. The reason? He said it was because I was an out of state vehicle on the interstate and could be runnings drugs. Did I have anything to hide? No. Was I sitting there going "oh ****" trying to think of what he might deem a reason to ruin my night? Yes. Did he come up with anything--Nope--but he sure tried.

I have spent almost my entire life growing up around police. I can't think of one of them that wouldn't joke about how they could come up with a reason to search a vehicle in any situation. Perhaps you are the exception to the rule--but I've known plenty of "good people" cops that have the "you have no rights" attitude.

Small town cops get bored. They do stupid things and bend the rules their way from time to time. This much I know.

There is a lot of gray area in the law period.

The difference between vehicles and almost everything else is, a judge determines reasonableness after the search with the former, and before the search for the latter.

Probable cause is a funny thing. Most people think it is a much stronger standard than it really is. The Supreme Court decision Illinois v. Gates said that a "substantial chance" or "fair probability" of criminal activity could establish probable cause. Not even a better-than-even chance is required. Reasonable suspicion is even less definitive (Terry stops and frisks.) It is only a suspicion of nefarious activities afoot that any prudent officer would have.

If I'm doing drug interdiction on the interstate highway, I only need reasonable suspicion to pull you over. Absent that, I need a traffic offense. Going 57 in a 55? Well, there you go. Then, you build your PC...you build your PC some more...you build your PC some more until you have enough, or you get consent. Or, you don't and it's "have a nice day."

 

[alaskaflyer]

P.S. - if I'm wrong on the reasons for the existence of that policy, please correct me. It's based on speculation on my part, and I don't know it for a fact - it's just my best guess, because that policy would otherwise make no sense.

And I'll also make clear that I don't blame the police for protecting themselves (and the taxpayers' wallets) through that policy - I just meant that to highlight that our civil liability system (read: monster) has impacts in areas beyond the wallets of the parties to the civil cases.

David, I was at ground zero when those policies and laws came into vogue - and the law. And no, I don't believe your theory was the primary reason for new laws that swept the country in the early nineties.

The reasons were - and are - that too many women (and in all fairness men too) were getting their ass kicked by their domestic abusers, and the CJ system wasn't doing enough about it. Academia got involved and it was shown that the only thing that worked was mandatory entrance into the CJ system (read: arrest) and court-ordered counseling and treatment of offenders backed up by draconian probation terms (and if that failed jail time.) THAT tended to make a difference, when pretty much nothing else did.

And frankly, it was flat-out proven (again in peer-reviewed studies) that the police when given discretion in abuse call situations too often failed to do what they needed to do, by either buying the load of crap that was fed to them by the abuser (and more often than not the "abusee") and / or because they were old school.

IMHO liability had very little to do with it.

A parallel could be drawn to repeat DUI offenders.

 

[alaskaflyer]

By the way, I was going to mention this yesterday but ran out of time at the airline gate. In many states you may be guilty of DUI for operating vehicles that do not require a state driver's license such as a bicycle, a lawnmower, a horse, etc. How do you think the implied consent laws apply?

 

[wbarnhill]

If I'm doing drug interdiction on the interstate highway, I only need reasonable suspicion to pull you over. Absent that, I need a traffic offense. Going 57 in a 55? Well, there you go. Then, you build your PC...you build your PC some more...you build your PC some more until you have enough, or you get consent. Or, you don't and it's "have a nice day."

Is it not true that asserting your fifth amendment rights cannot be used as probable cause? Basically by shutting your trap, the officer can't dig further and they can't use your refusal to answer questions as probable cause?

That said, I've been pulled over for no real reason. Driving a mustang registered in SC while in Texas, and someone had ran into me a few days prior. I was driving to the appointment with their insurance adjuster and got pulled over for "pulling away from a red light awfully fast". Literally, the officer said "I didn't get a chance to clock you but you pulled away from that red light awfully fast". I had actually accelerated pretty slowly because my hood had been bouncing ever since the accident (it didn't want to unlatch, but would bounce a little bit while I drove). Gave my license, registration and insurance, then he started asking questions about why I was in Texas, where I was staying, who I was visiting, and I gave as vague answers as possible. In my mind, what he did was tantamount to harassment, regardless of what the law says he's allowed to do. But oh well, I've got no reason to return to Texas, so no worries.

 

[Obi Heed Kenobi]

David, I was at ground zero when those policies and laws came into vogue - and the law. And no, I don't believe your theory was the primary reason for new laws that swept the country in the early nineties.

The reasons were - and are - that too many women (and in all fairness men too) were getting their ass kicked by their domestic abusers, and the CJ system wasn't doing enough about it. Academia got involved and it was shown that the only thing that worked was mandatory entrance into the CJ system (read: arrest) and court-ordered counseling and treatment of offenders backed up by draconian probation terms (and if that failed jail time.) THAT tended to make a difference, when pretty much nothing else did.

And frankly, it was flat-out proven (again in peer-reviewed studies) that the police when given discretion in abuse call situations too often failed to do what they needed to do, by either buying the load of crap that was fed to them by the abuser (and more often than not the "abusee") and / or because they were old school.

IMHO liability had very little to do with it.

A parallel could be drawn to repeat DUI offenders.

Thanks for the clarification - I was just a little guy back in the 90's!

But, that remains a good example of a different situation - that when discretion is granted unto someone, and that discretion is abused, the discretion is taken away...which harms the people who could benefit from properly used discretion.

 

[mikea]

...
That said, I've been pulled over for no real reason. Driving a mustang registered in SC while in Texas, and someone had ran into me a few days prior. I was driving to the appointment with their insurance adjuster and got pulled over for "pulling away from a red light awfully fast". Literally, the officer said "I didn't get a chance to clock you but you pulled away from that red light awfully fast". I had actually accelerated pretty slowly because my hood had been bouncing ever since the accident (it didn't want to unlatch, but would bounce a little bit while I drove). Gave my license, registration and insurance, then he started asking questions about why I was in Texas, where I was staying, who I was visiting, and I gave as vague answers as possible. In my mind, what he did was tantamount to harassment, regardless of what the law says he's allowed to do. But oh well, I've got no reason to return to Texas, so no worries.

In other words it was SOP for a Mustang. It's really hard to make a slow departure with a manual tranny. In a moment of temporary insanity I got the high(low?) ratio rear end when I ordered mine. 35 MPH follows the edge of stall at the friction point pretty close. The result is that it takes the toes of a safe cracker to go 25MPH, even in 1st gear. I literally use the cruise control to run that slow in a slow zone.

I told my cop brother there's no law about the distance or speed you use to get to the legal 30 MPH. He said, "You wanna bet?" It could be that that got me the attention that got me pulled over the last time as I moved the 'stang from my old Chicago place to the new one in the burbs with my expired plates. I had no idea that Chicago cops still pulled drivers over.

 

[SCCutler]

In other words it was SOP for a Mustang. It's really hard to make a slow departure with a manual tranny. In a moment of temporary insanity I got the high(low?) ratio rear end when I ordered mine. 35 MPH follows the edge of stall at the friction point pretty close. The result is that it takes the toes of a safe cracker to go 25MPH, even in 1st gear. I literally use the cruise control to run that slow in a slow zone.

I told my cop brother there's no law about the distance or speed you use to get to the legal 30 MPH. He said, "You wanna bet?" It could be that that got me the attention that got me pulled over the last time as I moved teh 'stang from my old Chicago place to the new one in the burbs with my expired plates. I had no idea that Chicago cops still pulled drivers over.

Yep, it's called, "Exhibition of Speed." Also known as, "Hey! Look at me officer! Pull me over and see what else I have been up to!"

 

[Obi Heed Kenobi]

Yep, it's called, "Exhibition of Speed." Also known as, "Hey! Look at me officer! Pull me over and see what else I have been up to!"

Is that its own crime, or is that merely a determining factor in creating reas. susp. to pull someone over to check for DUI or some other kind of impairment?

In other words, can you write a citation for that, or is "exhibition of speed" the justification you give at the motions hearing when a DUI defendant challenges the stop?

I ask because I've never heard of that being a crime - I thought as long as you didn't spin your tires you were ok.

 

[Obi Heed Kenobi]

Is that its own crime, or is that merely a determining factor in creating reas. susp. to pull someone over to check for DUI or some other kind of impairment?

In other words, can you write a citation for that, or is "exhibition of speed" the justification you give at the motions hearing when a DUI defendant challenges the stop?

I ask because I've never heard of that being a crime - I thought as long as you didn't spin your tires you were ok.

Never mind - I just answered my own question. It's definitely a crime in Colorado. "Speed contests," which include "rapid acceleration," are class 1 (the highest kind) misdemeanors out here.

 

[woodstock]

In other words it was SOP for a Mustang. It's really hard to make a slow departure with a manual tranny. In a moment of temporary insanity I got the high(low?) ratio rear end when I ordered mine. 35 MPH follows the edge of stall at the friction point pretty close. The result is that it takes the toes of a safe cracker to go 25MPH, even in 1st gear. I literally use the cruise control to run that slow in a slow zone.

:

ha! I remember that. I had 3.73s put in mine after I bought it (they came with 2.73s) and it was pretty squeaky after that. As in, every time you shifted it would leave a tiny patch - even in higher gears. I had a Mustang GT after college - no idea if the ratios are the same anymore. oh the fun days.

off topic, nothing to see...

 

[ausrere]

Yep, it's called, "Exhibition of Speed." Also known as, "Hey! Look at me officer! Pull me over and see what else I have been up to!"

Or "Exhibition of Acceleration"...aka one of the many DWHUA traffic offenses.

 

[gprellwitz]

Or "Exhibition of Acceleration"...aka one of the many DWHUA traffic offenses.

Hmmm.... My speed goes from 0 to 30 in five minutes. I've demonstrated acceleration. Not GOOD acceleration, mind you, but acceleration none the less.

 

[ausrere]

Hmmm.... My speed goes from 0 to 30 in five minutes. I've demonstrated acceleration. Not GOOD acceleration, mind you, but acceleration none the less.

lol. THAT might be impeding traffic...but I suspect you won't have to worry about getting an EOA ticket.

 

[mikea]

Hmmm.... My speed goes from 0 to 30 in five minutes. I've demonstrated acceleration. Not GOOD acceleration, mind you, but acceleration none the less.

It was 0 to 60 in about a minute on my Mercedes diesel. That's why I got the Mustang to overcompensate.

I wish I had kept the diesel, too.

 

[Pjsmith]

Depending on the state, the administrative revocation can be considerably shorter than the revocation which follows a conviction for DUI. This also does not factor in the other 'costs' of the DUI conviction, which can be hefty. I have told anyone with whom the topic has come up that unless they are 100% certain they will pass a breathalyzer test, that they are far better off refusing to take it. The machines themselves vary widely in quality and calibration, and utterly fail to distinguish between triggering compounds. There's lots of scientific data out there on this point and I've seen many a defendant found not guilty on this point alone.

Let me tell you that on the side of a road, at 4 a.m., in 20 degree weather with no coat, with an officer shining a mag lite in your eyes, you would be damn lucky, even stone cold sober, to stand on one leg, look skyward, and touch your finger to your nose.

 

[alaskaflyer]

The machines themselves vary widely in quality and calibration, and utterly fail to distinguish between triggering compounds. There's lots of scientific data out there on this point and I've seen many a defendant found not guilty on this point alone.

That is, IMHO, a bunch of internet-bred nonsense. Shame judges and juries buy into it. Often it comes down to competing expert witnesses and which one has the more expensive haircut.

Let me tell you that on the side of a road, at 4 a.m., in 20 degree weather with no coat, with an officer shining a mag lite in your eyes, you would be damn lucky, even stone cold sober, to stand on one leg, look skyward, and touch your finger to your nose.

Hmmm, never heard of that test

 

[Obi Heed Kenobi]

That is, IMHO, a bunch of internet-bred nonsense. Shame judges and juries buy into it. Often it comes down to competing expert witnesses and which one has the more expensive haircut.

Hmmm, never heard of that test

For all the faults of the breathalyzer (and they do exist - though not to the degree believed by many), I would rather have that instrument determine my drunkenness than the roadside "maneuvers", as the state patrol refers to them.
Nystagmus - sweet, I have a natural one.

Alphabet - great, I'm nervous, and in blasting through it I get confused.

Stop'n'Turn (or whatever it's called) - whoops, I didn't put my foot down the right number of times, again because I'm nervous and didn't quite catch the directions.

Bloodshot/Watery Eyes - I was skiing, one of my contacts fell into the snow, and I had to put it back in, along with that glorious flourinated wax that rubs off the bottom of bases and onto the snow. Plus a little grit.

Odor of Alcohol - well, can't really explain that one away.

Now, put all of those together, and even if I blow below the legal limit, I could still receive a DUI. Heck, even if I wasn't asked to take a PBT or breathalyzer, I could still be arrested for DUI (though a conviction would be doubtful) on those observations alone.

 

[alaskaflyer]

For all the faults of the breathalyzer (and they do exist - though not to the degree believed by many), I would rather have that instrument determine my drunkenness than the roadside "maneuvers", as the state patrol refers to them.
Nystagmus - sweet, I have a natural one.

Alphabet - great, I'm nervous, and in blasting through it I get confused.

Stop'n'Turn (or whatever it's called) - whoops, I didn't put my foot down the right number of times, again because I'm nervous and didn't quite catch the directions.

Bloodshot/Watery Eyes - I was skiing, one of my contacts fell into the snow, and I had to put it back in, along with that glorious flourinated wax that rubs off the bottom of bases and onto the snow. Plus a little grit.

Odor of Alcohol - well, can't really explain that one away.

Now, put all of those together, and even if I blow below the legal limit, I could still receive a DUI. Heck, even if I wasn't asked to take a PBT or breathalyzer, I could still be arrested for DUI (though a conviction would be doubtful) on those observations alone.

As an attorney, you know that you can be convicted of DUI based on driving behavior so long as a scintilla of any one element of evidence exists that you were intoxicated by anything.

However, as you said, that is not likely, though I can say that I have successfully prosecuted (through the DA of course) more than one person based on that very thing. Which was my point in an earlier post. You can still be convicted of DUI even if you refuse every test they throw at you. Rightfully so, if beyond a reasonable doubt still exists when considering all of the other evidence.

On another point, there are only three standard field sobriety tasks that have been scientifically validated: the horizontal-gaze nystagmus test, the walk and turn test, and the one leg stand test (which by the way doesn't involve touching one's nose or looking up at the sky ) The others that have been used in the past may be evidence of intoxication, but they don't carry the weight of NHTSA recommendation or scientific testing.

You can throw your Constitutional rights around all you want, but juries don't like to hear that you refused the test. Makes you look guilty

 

[Obi Heed Kenobi]

As an attorney, you know that you can be convicted of DUI based on driving behavior and by a scintilla of any one element of evidence that you were intoxicated by anything.

However, as you said, that is not likely, though I can say that I have successfully prosecuted (through the DA of course) more than one person based on that very thing. Which was my point in an earlier post. You can still be convicted of DUI even if you refuse every test they throw at you. Rightfully so, if beyond a reasonable doubt still exists.

Oh, fo' sho' - I didn't mean to imply otherwise. Weaving, officer observations (i.e., slurred speech, leaning against the car when the person gets out, combativeness, and so forth) all count toward a conviction.

But, as I'm sure you've experienced, it's a lot harder to get a conviction when you don't have "numbers" - i.e., scientific CSI-type evidence. It may not be fair to the State, but I think juries want to see that type of evidence. Especially in a DUI-type case - what average juror hasn't occasionally crossed the centerline or fogline, when sober? Although I've never sat on a jury, I do think there's a bit of the "but for the grace of God, there go I" attitude.

On another point, there are only three standard field sobriety taks that have been scientifically validated: the horizontal-gaze nystagmus test, the walk and turn test, and the one leg stand test (which by the way doesn't involve touching one's nose or looking up at the sky ) The others that have been used in the past may be evidence of intoxication, but they don't carry the weight of NHTSA recommendation or scientific testing.

Even those tests have their problems: people with natural nystagmi; people who don't have good balance; etc.

But they can be pretty reliable indicators of whether a person has been consuming alcohol or not - in other words, they might not merit a conviction, but they can definitely develop the cause required for requesting the breathalyzer. Which is where I think their true value lies.

 

[alaskaflyer]

The "CSI effect" is certainly present, but in my experience what juries want to see is video. Instant conviction.

If I get your drunk butt on video, everything else is beside the point so long as the judge is satisfied that the basic elements of the offense were met. Try the tests, refuse the tests...just make sure you say something stupid and stagger around a little for the camera

Edit: Er, I'm talking about the DUI driver, not the officer!

 

[Obi Heed Kenobi]

The "CSI effect" is certainly present, but in my experience what juries want to see is video. Instant conviction.

If I get your drunk butt on video, everything else is beside the point so long as the judge is satisfied that the basic elements of the offense were met. Try the tests, refuse the tests...just make sure you say something stupid and stagger around a little for the camera

Edit: Er, I'm talking about the DUI driver, not the officer!

Videos of DUI stops might be some of the funniest things to watch.

I learned that from watching Cops, of course!