^^^ For any attorneys out there - if @Stevea621j had simply said, "I respectfully decline the roadside sobriety test, and I won't answer questions without my attorney." ... then what? They would have had probable cause to pull him over (driving on the shoulder), but to arrest and take in for the "official" breathalyzer? ( I don't know state law differences, either.)
In Florida, you sign your drivers license which includes consent to a Breathalyzer test. No idea about other states.
I think that's pretty common in most, maybe all, states - but is the "official" breathalyzer back at the station or the portable breathalyzer in the trunk of the police car? edit: I'm trying to learn how all this works, too. But if you refuse the field sobriety test - is the breathalyzer part of that test or is it only something that could be used if you failed that test? edit: From one of the lawyer sites for KS/MO: >> Generally, a driver is not required to partake in a field sobriety test and may refuse to do so. Keep in mind that this is different from refusing to submit to a breath or blood test. Both Kansas and Missouri follow implied consent laws. Under these laws, a driver is required to submit to breath or blood tests when requested by law enforcement. An officer will ask the driver to partake in these tests when there is probable cause to believe that the driver is operating a vehicle under the influence of drugs and/or alcohol. By refusing this type of test, the driver will likely face penalties. <<
I know in AZ that if you refuse any tests, you automatically lose your license for a year. Same goes for CO. With that said, you do get an administrative hearing to argue your points. Personally, if I had a couple glasses of wine and got pulled over, I'd rather take my chances by refusing the tests and going to a hospital or doctor and running my own tests for validation. Then hire a lawyer and go to court to exploit any loopholes or procedures the officers may have missed. I learned many years ago to not argue with an officer on the side of the road. Always take it to court and argue there. I've gotten out of many tickets by working with the DA personally and hashing out an agreement (deferred judgements) without ever going in front of a judge. I usually end up paying a small fee to the court and go on my merry way.
They sell these things in COSTCO now... saw them there the other day... Between this, Uber and Lyft... if you get a DUI.. well
I'm not sure how this fits with the DUI limit. For one thing, as you say, you WERE driving in what any police officer would call "suspicious driving behaviour", I would expect a cop to pull one over driving along on the shoulder. But I agree, and there are several videos of Field Sobriety Tests where many, many people would have a problem doing them stone cold sober, in their living room, after being given warm up time. Add to the the flashing lights, also the noises if you are on the side of a highway of the cars rushing past, night time with bad lighting...yeah. I''m pretty sure from what I've seen of FST that at least a lot of the variation are "rigged" basically. On the other hand, a half-smart habitual drunkard with determination could practice standing on one leg, eyes closed, etc. and maybe pass even with some alcohol in their system. Also what about people with inner ear problems, etc. ?? It's rigged. I think they REALLY actually are checking your responses, manner, etc. A person under the influence do all kinds of "prep" and try to stand TOO straight, etc. But that aside, you say you don't think they should charge one with DUI for failing FST, but later mention he wanted to take you down for a blood test. So, though inconvenient, that ought to have been enough if you were blood tested so they didn't charge you if it had gone that far. It just will happen though, at 2:30 a.m. driving on the shoulder (flat tire or not) one is going to get "checked". After that you can only hope the cop is not out for getting to write DUI at any cost, and has some sense, and is objective. I used to drive cab (in a suburb of Chicago, then in the Bay Area in California) and both places I could just about set my watch by watching other traffic. Bars closed at 2:00 a.m. and by 02:30...it's was like crazy time. Remember driving over the Bay Bridge, and I swear just about EVERY other car on the bridge was weaving, speeding up, slowing down, etc. Sorry you got unlucky, but the copes prejudice (assesment of the situation before he even started interviewing you) made him predisposed to already have judged you DUI or on drugs. Once someone does that it gets to be an ego thing, they don't want to change their mind and be "wrong"...so they dig for more whether it is there or not. Roadside tests are not much valid.
I'd like to see the actual data on the B.A.C. content of drivers involved in "alcohol related" crashes. That would tell us more about where the limit should be set and be more logical than than pulling some arbitrary number out of the air. .06, at first blush, would seem to be more about controlling others' habits that we don't like rather than being about safety. I'm not convinced that anyone driving home at a .06 is a danger to anyone...or even a .08 for that matter. But could be convinced if shown actual data.
I am not an attorney, but after this happened I was ****ed and talked to some friends who are. Basically, by the time the officer asks you to take the roadside tests, he is already convinced you are impaired and is just gathering evidence. At that point you are between a rock and a hard place. If you refuse the roadside testing you will be arrested and taken for "official testing. If you agree to roadside testing, even if completely sober, it likely won't change the officers mind, and you will be arrested.
It was an unusual situation, 2:30 am, car driving along the shoulder ( I did have my flashers on), maybe appeared "glassy eyed" because of being awoken in the middle of the night etc. I have no problem with the officer stopping me and looking into what is going on. The problem I have is that there was no evidence I had been drinking based upon an objective test, but was moments from being arrested based upon circumstance and some very subjective testing. It is easy to say its no big deal, go get blood tested, and go home. That's fine, but to do that you are arrested. It makes little difference at that point what happens later, the damage is done and nobody cares what really happened or what ultimately transpires with charges or in a courtroom. Think about when some local politician or prominent person in you community is arrested for DUI. You hear about the arrest but nothing else, except maybe that he "got off" because he had good lawyers and connections. In my case the community I live in is small enough that a local physician being arrested for suspicion of DUI will be reported in the local paper. The next day they will not report that after my arrest, blood testing showed 0.0% BAC and no charges were filed or that charges were ultimately dropped. When I reapply for privileges at the local hospitals they will ask if I have ever been arrested for DUI and it opens up an involved process that I would have had to go through. The same for reapplying for my medical license. The point is, DUI arrest has a huge negative connotation in our society. With the court system being what it is, even if you are driving around with a .4 BAC and it is your first offense and there was no accident or injury involved, you will plead down to reckless driving and be on your way. Therefore, nobody cares what ultimately happens, If you were arrested for DUI, you were drunk period. Thats why I think that an arrest should be more strongly based on objective criteria
Yeah, I know, there are no good options if they really want to make an example of you. Like you mentioned, even though you weren't drinking you'll have that charge hanging over you forever. By refusing the FST, though, at least you aren't giving them any evidence. You are forcing them to come up with a reason to justify any escalation, and maybe that's just enough for them to decide it isn't worth the trouble. I have a referral to a local atty that handles stuff like this. I keep thinking I should give him a call and get a "If you are stopped, do this... and don't do this..." list of recommendations.
Maybe I missed something. When a police officer says "ok, I'm going to have to take you in to the station for a blood test", are you actually "charged with DUI" at that point. It would make no sense to me, since they actually still in the process of determining IF you are under the influence. I wouldn't think it was a DUI at that point in time. But, I've seen lots of laws and procedures that make no sense to me, so I don't know. I can see one is "technically" under arrest, whenever an authority stops you from moving on, going where you want to, but I can't see this being "charged" at that point. If you get taken to the station, fail the blood test, at that point it would be "we are charging you with DUI"...right?
You are not actually charged until the DA or grand jury files formal charges which may be weeks or months after your arrest, if at all. Once you are arrested you are arrested for "suspicion of DUI". The arrest doesn't disappear when you go in and test negative for everything. At least that's how it works in Georgia.
Maybe rather than figuring out how to avoid an arrest and conviction, folks can just not drink and drive.
I don't think that is what we are talking about. I presented a situation where I was not drinking or impaired in any way and was nearly arrested.
Maybe not "legally" impaired. But you were "extremely tired". Research shows that that is as or more dangerous than drinking. I am not implying that you did anything warranting possible arrest
Lemme google that for you: 2014 Traffic Deaths due to crashes involving drivers at or above 0.08 BAC The Case for .08 per se % of US Car Crash Fatalities Where Driver Blood Alcohol Level Was .01 and Above 1999 - 2012 Alcohol related traffic crashes in the US Looks like it is common knowledge that drinking alcohol impairs one's judgment and ability to move a vehicle safely. So, if one drinks, and drive it, they must be just stupid (or impaired to make reasonable decisions). Defending consuming of drugs before moving a vehicle is not reasonable. By checking how much munchie-debris is within your immediate reach. Duh!
Actually, those links didn't address my question whatsoever. From what I saw those links lumped all crashes over .08 into one big grand lump...and in some cases all over .01. That's not what I asked. What I'd like to see is the bell curve of the B.A.C. levels of the impaired who were involved in crashes...scrubbed of the crashes that weren't the fault of the intoxicated party. That would provide a good basis upon which to begin the debate of what should be legal as what not.
maybe they just need more practice. you know, like pattern work before a xc. I'm kidding, kids. don't drink and drive.
OIC, I gotcha. That would be some interesting data. Especially since a crash's fault can be assigned seemingly arbitrarily, sometimes. But the debate over what is legal is over, as far as I can tell. I surmise that since we live in a society where we have deiced and accepted that .08, .05, etc., are legal intoxication levels, that there won't be a study necessary. This arbitrary DUI law kinda intrudes on Individual Liberty to a degree, I suppose. Two arguments I can see, freedom to harm, and freedom from harm. "It's not fair..." I'd rather see no one use a drug before driving. But, I can see how some people would like discretion in that regard. I used to think similarly. Plus, I think we all can agree that ETOH impairs one's decision making abilities. I know from experience that I got 'way more smarters' after a few. The effectiveness of a .05 bac limit for driving in the US was an interesting read. I liked reading about the 'Issues' section. Poll says the Mormons approve vs other religions Texas is next, yeehaw Maybe Oregon, too A nicely researched resolution by the AAAM And the lobby group fighting progress. Suffice it to say, the lowered BAC levels have nothing to do about one's drinking habits, rituals, goals, or abilities, but all to do about driving after. So I am now wondering, what's an acceptable amount of cocaine, thc, pcp, anphetamines, benzos, barbis, opiates, oxy, meth, propoxy, ex, to have in the system before a DUI threshold is met if there is an acceptable level of ETOH? (I hope for the love of God it is NONE)
In the case of THC, this is actually a serious question that is holding up final approval of a tax-and-regulate system for cannabis in some states (e.g., Vermont). Our governor wants a well-defined standard for assessing THC impairment before he will sign such a bill into law. Until reading this thread I was in the "we can convict people for drunk driving based on observed impairment even below the legal limit, why should cannabis be any different?" camp. But it's too easy for officers to presume chemical impairment on the basis of observed behavior, and the less encouragement they have to do that, the better.
I believe they are having quite a go in CO since they went recreation legal with regards to impaired driving. A legal “new horizon.”
Maybe one of the lawyers here can answer this. Can you simply volunteer to go down to the station or hospital for a breathalyzer and keep it from being an arrest that way? "Officer I don't want to do the FST, why don't I just ride down to the station with you and we take the test then you can bring me back to get my car?"
