This is my issue. Upon making a BAC of above .08 a per se criminal offense (and I know mine is not the only state that does this) the whole implied consent for a breathalyser skirts way too close to self incrimination for my comfort.
There is no "implied" here; you gave express written consent when you signed the forms to get a driver's license.
edit: Also, I'd like to point out that not every state has retarded "parking while intoxicated" laws, and the existence of such laws does not mean that actual driving while intoxicated laws are somehow illegitimate.
True.
But then you get into right-to-travel issues, in areas where there is literally no other way to do so. The idea that you have to sign away rights in order to be able to legally travel from A to B effectively seems a bit draconian to me.
Especially when the alternative is simply requiring some form of probable cause for gathering such evidence. Is there some reason the police need a standard of probable cause of "was driving" to test for BAC?
They would presumably need the suspect to be driving because otherwise they didn't necessarily give consent while getting a driver's license. Hence the "parking while intoxicated laws are retarded" bit in that quote.
I guess an important difference between those two would be that you can immediately remove the phone/text impairment by stopping the phone call or texting. You can't immediately remove impairment due to intoxication.
Especially when the alternative is simply requiring some form of probable cause for gathering such evidence. Is there some reason the police need a standard of probable cause of "was driving" to test for BAC?
They would presumably need the suspect to be driving because otherwise they didn't necessarily give consent while getting a driver's license. Hence the "parking while intoxicated laws are retarded" bit in that quote.
A suspect that wasn't properly licensed wouldn't be bound by the consent given when getting a license, and could refuse the test without repercussions (well, other than a ride to jail to sort things out). As long as he wasn't also caught driving, I'd assume he'd be clear as far as driving without a license goes (merely being in the vehicle with the keys at that point probably wouldn't be prosecutable).
But you missed the point. I'm asking why this expressed consent is necessary to begin with. Without it, all that would be required to force a breathalyser would, presumably, be some form of probable cause. So I'm asking you to explain why probable cause should not be required in this instance (suspect driving), and why instead a lower "is driving" standard should be sufficient.
In other words, why are people driving cars required to exempt themselves from the probable cause requirement? How is this justified?
Can you explain how they are exempting themselves from probable cause? As I said before, you don't just randomly ask people to take the test. You need some signs of intoxication/impairment first.
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KalTorakOne way or another, they all end up inthe Undercity.Registered Userregular
Are DUII laws in the US too harsh, or not harsh enough?
Not harsh enough.
First DUI you should lose your license for minimum one year, be subject to a healthy fine, and some jail time. None of this AA crap.
You aren't? Because everyone I know who has gotten one was.
One of my housemates got a DWI last month and all she got was 4 months without a license, except she got permission to drive 4 hours each way back home from school and back during breaks. Ugh, it didn't change her behavior one bit, except for the whole "not driving" thing.
Can you explain how they are exempting themselves from probable cause? As I said before, you don't just randomly ask people to take the test. You need some signs of intoxication/impairment first.
Sobriety checkpoints would disagree.
Also, it's wikipedia, but here's a quick blurb regarding what I'm talking about:
The Michigan Supreme Court had found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. Although acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued that the state interest in reducing drunk driving outweighed this minor infringement.
Yeah that case is kind of fucked up. But that still doesn't mean the officer doesn't need probable cause to ask you to take BAC. He just doesn't need it to stop your car in the first place.
Actually wasn't there a study that talking on your phone/texting while driving impaired people in similar ways to being drunk?
I think I remember that one, but for the hell of me I can't remember if it deserved credibility or not. Will try and look for it.
It was a study on the "quality of driving" or some such. It concluded that using communications accessories while driving(hands-free included) makes you about as bad a driver as would high level of alcohol, but we'll have to check who ordered the experiment;o))
Yeah that case is kind of fucked up. But that still doesn't mean the officer doesn't need probable cause to ask you to take BAC. He just doesn't need it to stop your car in the first place.
Are there consequences for an officer who makes 100 tests before getting a 0.09 positive?
Actually, change the question to: Are negative tests recorded?
Yeah that case is kind of fucked up. But that still doesn't mean the officer doesn't need probable cause to ask you to take BAC. He just doesn't need it to stop your car in the first place.
Are there consequences for an officer who makes 100 tests before getting a 0.09 positive?
Actually, change the question to: Are negative tests recorded?
Here's the procedure I'm familiar with here
-bring suspect in
-read suspect consent form
-observe suspect for 15 minutes prior to test for burping, regurgitation, putting things in mouth. if observed, must wait another 15 minutes (or longer)
-start machine, follow procedures for machine (suspect blows twice)
-get result printout
-observe suspect for 15 minutes after test
The result will print out what the result is. So if it's .04 or .16 or whatever, that's what it prints out.
Actually wasn't there a study that talking on your phone/texting while driving impaired people in similar ways to being drunk?
I think I remember that one, but for the hell of me I can't remember if it deserved credibility or not. Will try and look for it.
It was a study on the "quality of driving" or some such. It concluded that using communications accessories while driving(hands-free included) makes you about as bad a driver as would high level of alcohol, but we'll have to check who ordered the experiment;o))
Taken together, we found that both intoxicated drivers and cell-phone drivers performed
differently from baseline, and that the driving profiles of these two conditions differed. Drivers in
the cell-phone condition exhibited a sluggish behavior (i.e., slower reactions) which they attempted
to compensate for by increasing their following distance. Drivers in the alcohol condition exhibited a
more aggressive driving style, in which they followed closer, necessitating braking with greater
force. With respect to traffic safety, our data are consistent with Redelmeier and Tibshirani’s (1997)
earlier estimates. In fact, when controlling for driving difficulty and time on task, cell-phone drivers
may actually exhibit greater impairments (i.e., more accidents and less responsive driving behavior)
than legally intoxicated drivers. These data also call into question driving regulations that prohibit
hand-held cell-phones and permit hands-free cell-phones, because no significant differences were
found in the impairments to driving caused by these two modes of cellular communication.
Yeah that case is kind of fucked up. But that still doesn't mean the officer doesn't need probable cause to ask you to take BAC. He just doesn't need it to stop your car in the first place.
Are there consequences for an officer who makes 100 tests before getting a 0.09 positive?
Actually, change the question to: Are negative tests recorded?
Here's the procedure I'm familiar with here
-bring suspect in
-read suspect consent form
-observe suspect for 15 minutes prior to test for burping, regurgitation, putting things in mouth. if observed, must wait another 15 minutes (or longer)
-start machine, follow procedures for machine (suspect blows twice)
-get result printout
-observe suspect for 15 minutes after test
The result will print out what the result is. So if it's .04 or .16 or whatever, that's what it prints out.
What I meant was more in the line, does the machine have memory? So, when you go back to the station, somebody tells you "Wtf dude? You tested 72 drivers without a single DUI?"?
I agree that the spirit of the law is pretty clear, however I'm unsure if there is any actual protection for the driver in case of harassment or is it just the possibility of complaint?
The machine doesn't have a memory. The printouts are preserved obviously.
If the cop stops a person without PC or has them blow without PC, that person can make a pretty good argument that that evidence should be suppressed at trial.
Also, as a practical matter, the prosecutor reviewing the case will look for enough evidence to prove the case at trial. If the cop pulls someone over for a taillight then arrests them and has them blow despite there being no other evidence of impairment, the prosecutor most likely won't be charging that case.
Can you explain how they are exempting themselves from probable cause? As I said before, you don't just randomly ask people to take the test. You need some signs of intoxication/impairment first.
Sobriety checkpoints would disagree.
Also, it's wikipedia, but here's a quick blurb regarding what I'm talking about:
The Michigan Supreme Court had found sobriety roadblocks to be a violation of the Fourth Amendment. However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. Although acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued that the state interest in reducing drunk driving outweighed this minor infringement.
Blue Ash, one of the sub-cities in Cincinnati, sets those up regularly.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
edited December 2008
Excepting checkpoints, the police need a reason to pull you over in the first place. However, not only can that reason be unrelated to your driving (expired registration), but it's exceedingly easy for the cops to manufacture one (the registration looked expired).
I didn't realize that breathalyzers gave false(ly high) positives that often.
Excepting checkpoints, the police need a reason to pull you over in the first place. However, not only can that reason be unrelated to your driving (expired registration), but it's exceedingly easy for the cops to manufacture one (the registration looked expired).
I didn't realize that breathalyzers gave false(ly high) positives that often.
I don't think anyone's cited anything showing what the reliability actually is
Excepting checkpoints, the police need a reason to pull you over in the first place. However, not only can that reason be unrelated to your driving (expired registration), but it's exceedingly easy for the cops to manufacture one (the registration looked expired).
I didn't realize that breathalyzers gave false(ly high) positives that often.
I don't think anyone's cited anything showing what the reliability actually is
They need to be calibrated regularly, and as with anything that needs to be calibrated can be calibrated incorrectly. I don't see anyone ever being able to prove that that was the case in court, though. The physical evidence needed to say one way or the other simply can't be acquired. There's also problems with the fact that some models don't control for nearly enough variables, but I'm not sure that's all of them or just old ones at this point.
Excepting checkpoints, the police need a reason to pull you over in the first place. However, not only can that reason be unrelated to your driving (expired registration), but it's exceedingly easy for the cops to manufacture one (the registration looked expired).
I didn't realize that breathalyzers gave false(ly high) positives that often.
I don't think anyone's cited anything showing what the reliability actually is
They need to be calibrated regularly, and as with anything that needs to be calibrated can be calibrated incorrectly. I don't see anyone ever being able to prove that that was the case in court, though. The physical evidence needed to say one way or the other simply can't be acquired. There's also problems with the fact that some models don't control for nearly enough variables, but I'm not sure that's all of them or just old ones at this point.
You're still able to get a blood test which carries more weight than the breathalyzer, right? That's pretty much the only/standard way to dispute a DUI where I am. I believe there is some interval(6 or 12 hours) in which you're supposed to do it, but yeah, if blood test shows no alcohol you're assumed clean.
You need probable cause to arrest, and probable cause to do some searches.
You only need reasonable suspicion to do a traffic stop. I'd suspect it would be argued that someone sleeping inside their car at a place that isn't a rest stop or their driveway gives an officer reasonable suspicion to at least knock and find out what that person is doing there.
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ShadowfireVermont, in the middle of nowhereRegistered Userregular
Discuss here, carryover from the faith healing thread.
I'll stick some quotes in here in a sec.
In North Carolina, the law is such that if you are caught behind the wheel, car in motion or not, you are charged with a DWI. In my town, the cops love to cruise the bar area and arrest drunks passed out in their cars.
Same in Ohio, except the keys have to be in the car. The general trick that has gotten a few of my friends off that needed those safety naps was to throw their keys somewhere underneath their vehicle.
That always struck me as brilliant. Yes guys, let's punish the people who are responsible enough to sleep it off before trying to drive. That's the best plan. That's exactly what the law is for.
In Vermont, walking home will also get you thrown in jail (or at least ticketed) for public intoxication.
Discuss here, carryover from the faith healing thread.
I'll stick some quotes in here in a sec.
In North Carolina, the law is such that if you are caught behind the wheel, car in motion or not, you are charged with a DWI. In my town, the cops love to cruise the bar area and arrest drunks passed out in their cars.
Same in Ohio, except the keys have to be in the car. The general trick that has gotten a few of my friends off that needed those safety naps was to throw their keys somewhere underneath their vehicle.
That always struck me as brilliant. Yes guys, let's punish the people who are responsible enough to sleep it off before trying to drive. That's the best plan. That's exactly what the law is for.
In Vermont, walking home will also get you thrown in jail (or at least ticketed) for public intoxication.
...seems like there would be less DUI if they only arrested you for driving under the influence, doesn't it.
I'm a cop - and I hate doing D.U.I's - reason being is when I go to court on them, defense attorney makes me out to be the bad guy because I pulled their client over
Anyhow - I read a lot about the legal limit being .08 and there is some truth to that, but that isn't the whole deal. There are quite a few things we need to book a drunk
#1 Traffic violation - be it speeding, unsafe lane change, wide turn...whatever constitutes a legal reason for me stopping the car
#2 Blood shot eyes, slurred speech, open bottle of tequila in lap...a reason for me to conduct my FST's
#3 Then a minimum of three nationally recognized FST's - I do the same three in the same order every time. We need a certain amount of 'markers' I guess from each test
Through these three things, we need to determine if the driver is impaired in the slightest degree - I usually end up with the guy/girl who can't even stand up out of the car. If they are stumbling around, I hook them up, process them and do the intoxylizer at the station. On the .08 issue - I don't think i've ever taken somebody less than a .15, but no judge or prosecutor will go forward on anything less than .08 because anything under that is generally accepted that you are not impaired and capable of operating your vehicle.
Like I mentioned though - this is the only part of my job I hate because if I have to go to court I am made out to be this horrible racially profiling guy who violated their poor clients civil rights, when I could have realistically saved their life or someone elses. Off my soapbox on that though
Almost forgot - at least here in AZ - can't give someone a DUI anymore for being passed out and drunk in the drivers seat. Some case law was recently passed and I don't have it available to me right now.
I'm a cop - and I hate doing D.U.I's - reason being is when I go to court on them, defense attorney makes me out to be the bad guy because I pulled their client over
Anyhow - I read a lot about the legal limit being .08 and there is some truth to that, but that isn't the whole deal. There are quite a few things we need to book a drunk
#1 Traffic violation - be it speeding, unsafe lane change, wide turn...whatever constitutes a legal reason for me stopping the car
#2 Blood shot eyes, slurred speech, open bottle of tequila in lap...a reason for me to conduct my FST's
#3 Then a minimum of three nationally recognized FST's - I do the same three in the same order every time. We need a certain amount of 'markers' I guess from each test
Through these three things, we need to determine if the driver is impaired in the slightest degree - I usually end up with the guy/girl who can't even stand up out of the car. If they are stumbling around, I hook them up, process them and do the intoxylizer at the station. On the .08 issue - I don't think i've ever taken somebody less than a .15, but no judge or prosecutor will go forward on anything less than .08 because anything under that is generally accepted that you are not impaired and capable of operating your vehicle.
Like I mentioned though - this is the only part of my job I hate because if I have to go to court I am made out to be this horrible racially profiling guy who violated their poor clients civil rights, when I could have realistically saved their life or someone elses. Off my soapbox on that though
Almost forgot - at least here in AZ - can't give someone a DUI anymore for being passed out and drunk in the drivers seat. Some case law was recently passed and I don't have it available to me right now.
From the prosecutor's perspective, the person may have very well been impaired at .06, but it's very difficult to convince a jury of that.
What individual rights issues are raised by making DUII a crime?
None, from where I stand. You can drive drunk all you like if you aren't leaving your property, but once you go out onto public roads you have to abide by public regulations. The danger presented by drunk drivers seems like a pretty uncontroversial state interest in restricting drunk driving.
As relating to the above discussion: I was under the impression that although a .08 BAC would generally get you a DUI, that the sentencing and all still varied based on what you blew and your behavior. For instance, friend of a friend was pulled over and blew just over .08, but he was well behaved and by the time he got to the station he blew under .08. He didn't wind up getting jail time or having a criminal record, iirc. So it doesn't seem to me like the .08 number makes the law too inflexible.
Sobriety checkpoints are fascist and violate privacy rights. Pulling over erratic drivers and busting them for driving drunk or reckless is reasonable. Pulling over everyone at a police roadblock on the chance they may be intoxicated and searching their vehicle is not reasonable.
The one size fits all approach to BAC is also ridiculous. Some people can drive perfectly fine at .10, others can't drive for shit at .05 (or .00 for that matter). Driving drunk isn't inherently dangerous, driving reckless is. Driving while intoxicated is not always driving reckless.
I'm of the opinion that repeat offenders should have their license suspended but not their lives, employment opportunities or bank account destroyed. The last thing some derelict alcoholic needs is a 2000 dollar fine.
(and seriously, texting while driving? Anyone who does that needs to be dragged out of their car and shot.)
It isn't something I'm eager to try while I'm driving, but I can certainly type text messages accurately one-handed without looking at the screen. While you still have the inherent distraction (just like you would talking on a phone), I don't think they physical act is necessarily more dangerous that adjusting a radio.
While I'd stress that I don't think it's a good idea, I think dragging someone out of the car and shooting them is a bit harsh of a punishment. :P
The machine doesn't have a memory. The printouts are preserved obviously.
If the cop stops a person without PC or has them blow without PC, that person can make a pretty good argument that that evidence should be suppressed at trial.
The usual trick that the cops use to get around this is that they ask the person to do a breath test voluntarily. Typically, requests by police officers are treated as commands by most people, but since the cop asked, and you complied, you gave consent and there's no search issue.
What individual rights issues are raised by making DUII a crime?
None, from where I stand. You can drive drunk all you like if you aren't leaving your property, but once you go out onto public roads you have to abide by public regulations. The danger presented by drunk drivers seems like a pretty uncontroversial state interest in restricting drunk driving.
As relating to the above discussion: I was under the impression that although a .08 BAC would generally get you a DUI, that the sentencing and all still varied based on what you blew and your behavior. For instance, friend of a friend was pulled over and blew just over .08, but he was well behaved and by the time he got to the station he blew under .08. He didn't wind up getting jail time or having a criminal record, iirc. So it doesn't seem to me like the .08 number makes the law too inflexible.
Sobriety checkpoints are fascist and violate privacy rights. Pulling over erratic drivers and busting them for driving drunk or reckless is reasonable. Pulling over everyone at a police roadblock on the chance they may be intoxicated and searching their vehicle is not reasonable.
The one size fits all approach to BAC is also ridiculous. Some people can drive perfectly fine at .10, others can't drive for shit at .05 (or .00 for that matter). Driving drunk isn't inherently dangerous, driving reckless is. Driving while intoxicated is not always driving reckless.
I'm of the opinion that repeat offenders should have their license suspended but not their lives, employment opportunities or bank account destroyed. The last thing some derelict alcoholic needs is a 2000 dollar fine.
The machine doesn't have a memory. The printouts are preserved obviously.
If the cop stops a person without PC or has them blow without PC, that person can make a pretty good argument that that evidence should be suppressed at trial.
The usual trick that the cops use to get around this is that they ask the person to do a breath test voluntarily. Typically, requests by police officers are treated as commands by most people, but since the cop asked, and you complied, you gave consent and there's no search issue.
Yes, but why did they ask?
A cop pulls you over for speeding and sees absolutely no signs of impairment. No glassy watery eyes, no smell of alcohol, no nothing. If he asks you to do a BAC and you do, that result's getting suppressed, because he had no basis to even ask that you take that test.
The machine doesn't have a memory. The printouts are preserved obviously.
If the cop stops a person without PC or has them blow without PC, that person can make a pretty good argument that that evidence should be suppressed at trial.
The usual trick that the cops use to get around this is that they ask the person to do a breath test voluntarily. Typically, requests by police officers are treated as commands by most people, but since the cop asked, and you complied, you gave consent and there's no search issue.
Yes, but why did they ask?
A cop pulls you over for speeding and sees absolutely no signs of impairment. No glassy watery eyes, no smell of alcohol, no nothing. If he asks you to do a BAC and you do, that result's getting suppressed, because he had no basis to even ask that you take that test.
Isn't it under the same category as police officers being allowed to search a house as long as the owner gives the okay?
The machine doesn't have a memory. The printouts are preserved obviously.
If the cop stops a person without PC or has them blow without PC, that person can make a pretty good argument that that evidence should be suppressed at trial.
The usual trick that the cops use to get around this is that they ask the person to do a breath test voluntarily. Typically, requests by police officers are treated as commands by most people, but since the cop asked, and you complied, you gave consent and there's no search issue.
Yes, but why did they ask?
A cop pulls you over for speeding and sees absolutely no signs of impairment. No glassy watery eyes, no smell of alcohol, no nothing. If he asks you to do a BAC and you do, that result's getting suppressed, because he had no basis to even ask that you take that test.
Isn't it under the same category as police officers being allowed to search a house as long as the owner gives the okay?
Not really, no.
I mean on the most basic level of consent, it might be. But traffic stops and the stuff that happens thereafter kind of have their own rules.
The truth is search and seizure law is pretty fucked up and complicated and I've probably already made a couple misstatements. But this is my understanding as of this point.
The machine doesn't have a memory. The printouts are preserved obviously.
If the cop stops a person without PC or has them blow without PC, that person can make a pretty good argument that that evidence should be suppressed at trial.
The usual trick that the cops use to get around this is that they ask the person to do a breath test voluntarily. Typically, requests by police officers are treated as commands by most people, but since the cop asked, and you complied, you gave consent and there's no search issue.
Yes, but why did they ask?
A cop pulls you over for speeding and sees absolutely no signs of impairment. No glassy watery eyes, no smell of alcohol, no nothing. If he asks you to do a BAC and you do, that result's getting suppressed, because he had no basis to even ask that you take that test.
Isn't it under the same category as police officers being allowed to search a house as long as the owner gives the okay?
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They would presumably need the suspect to be driving because otherwise they didn't necessarily give consent while getting a driver's license. Hence the "parking while intoxicated laws are retarded" bit in that quote.
This is also illegal in many states.
(and seriously, texting while driving? Anyone who does that needs to be dragged out of their car and shot.)
Yes, even with handsfree devices, because the issue is one of cognitive load rather than manual dexterity.
the "no true scotch man" fallacy.
Just blabbering out loud.
A suspect that wasn't properly licensed wouldn't be bound by the consent given when getting a license, and could refuse the test without repercussions (well, other than a ride to jail to sort things out). As long as he wasn't also caught driving, I'd assume he'd be clear as far as driving without a license goes (merely being in the vehicle with the keys at that point probably wouldn't be prosecutable).
But you missed the point. I'm asking why this expressed consent is necessary to begin with. Without it, all that would be required to force a breathalyser would, presumably, be some form of probable cause. So I'm asking you to explain why probable cause should not be required in this instance (suspect driving), and why instead a lower "is driving" standard should be sufficient.
In other words, why are people driving cars required to exempt themselves from the probable cause requirement? How is this justified?
One of my housemates got a DWI last month and all she got was 4 months without a license, except she got permission to drive 4 hours each way back home from school and back during breaks. Ugh, it didn't change her behavior one bit, except for the whole "not driving" thing.
Sobriety checkpoints would disagree.
Also, it's wikipedia, but here's a quick blurb regarding what I'm talking about:
I think I remember that one, but for the hell of me I can't remember if it deserved credibility or not. Will try and look for it.
It was a study on the "quality of driving" or some such. It concluded that using communications accessories while driving(hands-free included) makes you about as bad a driver as would high level of alcohol, but we'll have to check who ordered the experiment;o))
Are there consequences for an officer who makes 100 tests before getting a 0.09 positive?
Actually, change the question to: Are negative tests recorded?
Here's the procedure I'm familiar with here
-bring suspect in
-read suspect consent form
-observe suspect for 15 minutes prior to test for burping, regurgitation, putting things in mouth. if observed, must wait another 15 minutes (or longer)
-start machine, follow procedures for machine (suspect blows twice)
-get result printout
-observe suspect for 15 minutes after test
The result will print out what the result is. So if it's .04 or .16 or whatever, that's what it prints out.
Found it, wikipedia to the rescue:
Full study(PDF):
http://www.psych.utah.edu/AppliedCognitionLab/DrivingAssessment2003.pdf
What I meant was more in the line, does the machine have memory? So, when you go back to the station, somebody tells you "Wtf dude? You tested 72 drivers without a single DUI?"?
I agree that the spirit of the law is pretty clear, however I'm unsure if there is any actual protection for the driver in case of harassment or is it just the possibility of complaint?
If the cop stops a person without PC or has them blow without PC, that person can make a pretty good argument that that evidence should be suppressed at trial.
Also, as a practical matter, the prosecutor reviewing the case will look for enough evidence to prove the case at trial. If the cop pulls someone over for a taillight then arrests them and has them blow despite there being no other evidence of impairment, the prosecutor most likely won't be charging that case.
Blue Ash, one of the sub-cities in Cincinnati, sets those up regularly.
I didn't realize that breathalyzers gave false(ly high) positives that often.
I don't think anyone's cited anything showing what the reliability actually is
They need to be calibrated regularly, and as with anything that needs to be calibrated can be calibrated incorrectly. I don't see anyone ever being able to prove that that was the case in court, though. The physical evidence needed to say one way or the other simply can't be acquired. There's also problems with the fact that some models don't control for nearly enough variables, but I'm not sure that's all of them or just old ones at this point.
Edit: The intoxylizer is going to be the most accurate.
You're still able to get a blood test which carries more weight than the breathalyzer, right? That's pretty much the only/standard way to dispute a DUI where I am. I believe there is some interval(6 or 12 hours) in which you're supposed to do it, but yeah, if blood test shows no alcohol you're assumed clean.
They can't exactly say the person was driving erratically or moving through a checkpoint.
Also, if I recall correctly, wisconsin has some fucked up lax DUI laws.
People normally aren't unconscious in their cars. So he could say he was checking if you were hurt.
You only need reasonable suspicion to do a traffic stop. I'd suspect it would be argued that someone sleeping inside their car at a place that isn't a rest stop or their driveway gives an officer reasonable suspicion to at least knock and find out what that person is doing there.
In Vermont, walking home will also get you thrown in jail (or at least ticketed) for public intoxication.
Anyhow - I read a lot about the legal limit being .08 and there is some truth to that, but that isn't the whole deal. There are quite a few things we need to book a drunk
#1 Traffic violation - be it speeding, unsafe lane change, wide turn...whatever constitutes a legal reason for me stopping the car
#2 Blood shot eyes, slurred speech, open bottle of tequila in lap...a reason for me to conduct my FST's
#3 Then a minimum of three nationally recognized FST's - I do the same three in the same order every time. We need a certain amount of 'markers' I guess from each test
Through these three things, we need to determine if the driver is impaired in the slightest degree - I usually end up with the guy/girl who can't even stand up out of the car. If they are stumbling around, I hook them up, process them and do the intoxylizer at the station. On the .08 issue - I don't think i've ever taken somebody less than a .15, but no judge or prosecutor will go forward on anything less than .08 because anything under that is generally accepted that you are not impaired and capable of operating your vehicle.
Like I mentioned though - this is the only part of my job I hate because if I have to go to court I am made out to be this horrible racially profiling guy who violated their poor clients civil rights, when I could have realistically saved their life or someone elses. Off my soapbox on that though
Almost forgot - at least here in AZ - can't give someone a DUI anymore for being passed out and drunk in the drivers seat. Some case law was recently passed and I don't have it available to me right now.
Sobriety checkpoints are fascist and violate privacy rights. Pulling over erratic drivers and busting them for driving drunk or reckless is reasonable. Pulling over everyone at a police roadblock on the chance they may be intoxicated and searching their vehicle is not reasonable.
The one size fits all approach to BAC is also ridiculous. Some people can drive perfectly fine at .10, others can't drive for shit at .05 (or .00 for that matter). Driving drunk isn't inherently dangerous, driving reckless is. Driving while intoxicated is not always driving reckless.
I'm of the opinion that repeat offenders should have their license suspended but not their lives, employment opportunities or bank account destroyed. The last thing some derelict alcoholic needs is a 2000 dollar fine.
It isn't something I'm eager to try while I'm driving, but I can certainly type text messages accurately one-handed without looking at the screen. While you still have the inherent distraction (just like you would talking on a phone), I don't think they physical act is necessarily more dangerous that adjusting a radio.
While I'd stress that I don't think it's a good idea, I think dragging someone out of the car and shooting them is a bit harsh of a punishment. :P
The usual trick that the cops use to get around this is that they ask the person to do a breath test voluntarily. Typically, requests by police officers are treated as commands by most people, but since the cop asked, and you complied, you gave consent and there's no search issue.
I do not think it means what you think it means.
Yes, but why did they ask?
A cop pulls you over for speeding and sees absolutely no signs of impairment. No glassy watery eyes, no smell of alcohol, no nothing. If he asks you to do a BAC and you do, that result's getting suppressed, because he had no basis to even ask that you take that test.
Isn't it under the same category as police officers being allowed to search a house as long as the owner gives the okay?
Not really, no.
I mean on the most basic level of consent, it might be. But traffic stops and the stuff that happens thereafter kind of have their own rules.
The truth is search and seizure law is pretty fucked up and complicated and I've probably already made a couple misstatements. But this is my understanding as of this point.
And why not?