Refusing to take a breathalizer test

[penkitten]

eat a spoonful of jiffy peanut butter

 

[srz]

While I cannot speak for more than California laws, I just had to correct a few things here. (Note: I am a long time lurker on this board, and my "qualifications" for what I'm going to say are 1) Bar Owner (part owner more exactly) 2) Ex Law Enforcement 3) Someone who has gotten out of 3 DUI's. And before the haters start flaming, I was NOT drunk any one of the 3 times, my ex was killed by a drunk driver, and I do not drive after excessive drinking. I am just shy of 200 pounds and for even me 2-3 beers can show up as .08 BAC depending upon test timing.)

First in response to the topic starter, in California, when you originally get your drivers license you sign away your right to refuse to take any substance test. (I would assume most other places are the same.) You can claim you have an inner ear infection all you want to avoid the breathalyzer, but that would be foolish, bringing us to point two -

Ever wonder why an officer will make take a field sobriety test when even if you pass you still have to take a breathalyzer? Why wouldn't they just save everyone time and go straight to the breathalyzer? Because only 10% of alchohol is digested in the stomach, the other 90% in the intestines, and quite rapidly. Your BAC can go up as much as .0025 per minute after alchohol gets dumped into the intestines (per our training, obviously I cannot verify this, but from what I have seen I would concur.) Anyone who has ever gotten pulled over for a DUI knows how long it takes, giving your BAC even more time to go up. (At one point the average time spent on a DUI stop in my division was 34 minutes, while a domestic violence call only averaged 12 minutes.) In the gentelmans case who had gotten pulled over at 8 am I would agree to get taken in for a blood test as long as it had been more than 3-4 hours since your last drink, as BAC is declining. But for anyone having had any alchohol in the last 3 hours I would always recommend taking the breathalyzer. It will register as a lower BAC at that point, and calibration can be argued by a good lawyer, where as the blood testing results have never successfully been fought to the best of my knowledge.

Other points I would like to make -

While an officer obviously cannot force you to take a breathalyzer, they can and will force you to take get blood drawn. They can and will use physical force if necessary to accomplish this.

Listerine would not work. If a lawyer told you that, it was so they would have an angle to work from (i.e. it was the listerine registering, not beer). People can and do get DUIs over NyQUIL, Listerine would be the same. I have seen people get a DUI for taking a drug which their doctor perscribed, and had no driving indications on it. On the older alchohol saturation tests this may have worked as it would register a level beyond what a human body could sustain, but I would not risk raising the level, what if you were .07 and raised it a point by doing this? Not worth it IMO.

As far as whoever said trying to call an officers bluff and telling him "fine, lets ride down town", unless you live in an area with some serious **** going down you won't win that game. (And if you were in such an area I doubt they would waste time pulling you over in the first place.) Remember that in most places in the U.S. a shift change happens right around 2:00 am when bars are closing, this means you have one of two people who will pull you over 1) Someone looking for overtime, which a DUI provides plenty of (not only that night, but court, etc. and since almost half of a uniformed officers income will come from OT, they would love for you to say this.) or 2) Someone who just got on duty and has a hardon for getting some action. My advice, always take the breathalyzer, don't worry, you'll get your blood drawn if you get booked, and if the blood percentage is lower that is what will be used in court, but as I said, with very rare exceptions the BAC at the station will be significantly higher as more alchohol has had time to digest.

An officer will always ask where you were going to when he is about to give you a DUI test, the correct answer to this is always somewhere within a 2 minute drive. The logic behind this is that if you blow borderline (i.e. .08 - .09), your BAC could have been lower than that while driving had the officer not pulled you over and you reached your destination. (i.e. you are .07, and you would have been .072 had you reached your destination, both within "legal limits", but since the officer held you up your BAC raised above this.) This logic is the one I have seen most successfully argued in court.

Also please keep in mind that as of now, it is not illegal to drive tired. And aside from the smell of alchohol, symptoms are very similar to being drunk. (At least from the officers stand point, red eyes, glossed over, etc.) This is unfortunate I think (though I have no solution), as I personally drive worse after a night without sleep than I do after 3 beers.

And lastly, if CHP hits you with a DUI, you're not getting out of it, so it's probably wise in that case not to waste money on a lawyer. If PD or Sheriff book you I'd say get the lawyer, it will at least lower court fees, and annoy the deputy DA handling your case.

I truly hope that no one on this board would be stupid enough to drive after excessive drinking. Even if it's not you that hurts someone else, you can't react as fast to avoid another driver if they do something stupid. Put your keys in the back seat, and fall asleep in the passenger seat if you refuse to leave your car there.

 

[PRMoon]

Also please keep in mind that as of now, it is not illegal to drive tired. And aside from the smell of alchohol, symptoms are very similar to being drunk. (At least from the officers stand point, red eyes, glossed over, etc.) This is unfortunate I think (though I have no solution), as I personally drive worse after a night without sleep than I do after 3 beers.

I had been up for nearing 24 hours at the time that I got arrested. I was dead tired, I passed out in the waiting room before being taken into the holding cell. I flipped my cuffed hands under my lets and almost got shot by one of the cops (apparently they dont' like that either). All I wanted to do was get breakfest before I went to work. My BAC was a .071 when I got tested. I'm so sad

And lastly, if CHP hits you with a DUI, you're not getting out of it, so it's probably wise in that case not to waste money on a lawyer. If PD or Sheriff book you I'd say get the lawyer, it will at least lower court fees, and annoy the deputy DA handling your case.

The DA just filed for a continuance for my trial. I have to call my lawyer on monday to find out when it's been reschuled for. The courts here are really backed up in Vegas, with all the hookers and what not. Still though the DMV has a seprate trial set for the 27th of this month (my court hearing was suppose to be thrusday) so now I have to call the DMV and ask them for a contunuance but I have to first get my new court date. This whole thing is such a hassle.

An officer will always ask where you were going to when he is about to give you a DUI test, the correct answer to this is always somewhere within a 2 minute drive. The logic behind this is that if you blow borderline (i.e. .08 - .09), your BAC could have been lower than that while driving had the officer not pulled you over and you reached your destination. (i.e. you are .07, and you would have been .072 had you reached your destination, both within "legal limits", but since the officer held you up your BAC raised above this.) This logic is the one I have seen most successfully argued in court.

WTF!!! I was already AT my destination, I drove literally 100 yards! and I was going to have breakfest! I was going to drive to my job an hour later after I had a denver omlete, hashbrowns, toast, maybe a cup o joe, and like 4 glasses of water. Maybe I should of asked the cop if he wanted to get breakfest with me, he might have been nicer. He didn't seem all that bad while I was talking to him about his family plan in the back seat of the squad car. This whole thing pisses me off!:cuss:

I wish this would of happened to someone else. Kids don't drink and drive. It's just not worth it.

 

[srz]

I am very surprised the DA approved the case, especially with so many more cut and dry cases that Vegas must have. If you have a lawyer I think you will have decent luck with this. Usually with a lawyer weak cases get dropped down, or even dropped all together.

In Cali the DMV hearing usually comes first, so I am a little confused, I don't think you would have to wait on the DMV hearing, just go in (or have your lawyer do it if you have one.) I do know that the longer you wait with the DMV hearing the worse your odds. If your lawyer is telling you to schedule the DMV hearing for AFTER your DUI hearing he must be pretty confident you will get off completely.

Good Luck!

 

[Derek Flint]

"While an officer obviously cannot force you to take a breathalyzer, they can and will force you to take get blood drawn. They can and will use physical force if necessary to accomplish this."

I call BS on this one, unless the suspect was hospitalized as a result of an accident, no blood is going to be drawn without consent.

In CA, you have the right to refuse both the Field Sobriety Test and any type of BAC test.

The courts are filled with cases of suspects who refused one or both, and at no time were they held down and had blood drawn from them.

Any lawyer will tell you to not consent to a BAC test, especially if you have prior DUI arrests/convictions.

No BAC, no field sobriety test = reasonable doubt, which results in aquittal if you have a good attorney and you weren't falling down drunk.

 

[Giovanni Casanova]

No, you will not be forced to give blood or take a breathalyzer without a warrant. Blood and breathalyzer tests are considered searches, and you have the right to refuse. However, your license is a privilege, not a right. It can be suspended if you refuse to take a breath test.

Police officers will not force you down and forcibly take your blood.

 

[srz]

Things are very different in the real world than on TV fellas, a DUI trial is not by jury, so reasonable doubt doesn't mean a damn thing. You can refuse any test you want while out in the field, but you cannot refuse once at the station. You can't call an attorney before these tests either.

There is supposed to be a trained phlebotomists at each booking station for drawing blood, in which case blood can and will be drawn forcefully. ( I emphasize "supposed" as many people seem to misrepresent themselves.)

If you don't believe me that's fine, I'm not coming at you with idealistic theories. Life is not TV or a movie. Convictions have happened already in San Bernardino and LA counties using only a P.A.S. and verbal admission!

Now I'm not saying an officer can beat you unconscious to acquire blood, but they can use any "reasonable force" necessary to acquire a sample from a "refusal" suspect.

"No BAC, no field sobriety test = reasonable doubt" = indefinitely suspended license. Implied Consent is real, and you sign your "rights" away by getting a license. Advising someone who already has a DUI conviction not to cooperate is a very bad idea as non-cooperation if convicted of a second DUI is automatically a felony DUI.

In no way am I saying I agree with how things are done, that is a large reason I am no longer LE. I just don't like when people give very questionable advice about these things. Not cooperating with an officer won't make things go away. I am not preaching advise from "this lawyer I know" or whatever indirect way my arguers points will come from, I'm telling you what REALLY happens, I worked for SB and Riverside Counties, I have seen it. As an L.E.O. you're in court MORE than these lawyers, so to be honest I don't care what they, or their websites say.

I am simply stating what is the truth in my world based upon my experience, take it or leave it. If this seems like B.S. to you, take the advice of someone else and the best of luck to you.

 

[Derek Flint]

I believe there is a list of who is qualified to draw blood and a phlebotomist is not one of them.

Anyone not on that list draws blood, and the blood test evidence is thrown out.

Also, there are jury trials for DUI in CA and most other states.

Also, refusal in CA is a 1 year suspension of your DL, not "indefinite" like you claim.

I don't know who long it's been since you've been retired, but some of your claims are non-factual.

 

[Derek Flint]

http://www.sandiegodui.com/unauth.html

 

[Giovanni Casanova]

Originally posted by srz
Things are very different in the real world than on TV fellas, a DUI trial is not by jury, so reasonable doubt doesn't mean a damn thing. You can refuse any test you want while out in the field, but you cannot refuse once at the station. You can't call an attorney before these tests either.

You are completely and totally full of sh*t.

Either that, or you live in a place that has never heard of the Bill of Rights.

You have the right to a trial by jury.

You have certain rights concerning searches of your person (including blood tests) conducted by law enforcement.

You have the right to an attorney.

 

[familyguyfan]

srz, I have some questions about laws I've been wondering about.

Are police officers required to have a warrant to search your car when you are pulled over, or can they just do it anyway?

Also, is it illegal for someone else to drive your car if you are in it. For example, say a sober person was driving a drunk person home, and they were driving the drunk person's car. Would they have any charges against them?

And finally, do either of these laws vary by state, or are the pretty much the same nationwide?

 

[Giovanni Casanova]

Originally posted by familyguyfan
Are police officers required to have a warrant to search your car when you are pulled over, or can they just do it anyway?

No, but they are required to have probable cause. That is your fourth amendment right. They have to have a reason to search your car. They can also search your car if you give them permission.

Also, is it illegal for someone else to drive your car if you are in it. For example, say a sober person was driving a drunk person home, and they were driving the drunk person's car. Would they have any charges against them?

Not unless the person driving was ineligible to drive for some other reason (i.e., their license is suspended).

And finally, do either of these laws vary by state, or are the pretty much the same nationwide?

The first one is part of the U.S. Constitution. The second one is pretty much the same nationwide as well.

 

[srz]

Giovanni Casanova -

First, I'm not trying to argue with anyone about anything, I'm simply telling how it is.

"You have the right to a trial by jury."

I should have been more specific about my response I suppose, I was directing my answers at the gentelman from Nevada who asked the original question, which Nevada does have different policies regarding DUI's than some other states. In 1989 the United States Supreme Court in 'Blanton vs. North Las Vegas', a DUI case, said, "There is no constitutional right to a jury trial in a DUI case, so long as it’s not punishable by more than six months in jail."

"You have the right to an attorney."

Correct, never said you didn't, but you are not allowed to make the phone call until after the tests are completed.

"You have certain rights concerning searches of your person (including blood tests) conducted by law enforcement."

Anything more than 'casual contact' with an officer gives them the right to search your person, for their own personal saftey. Supreme Court decision in Maryland vs. Wilson gave an officer the right to force you out of a vehicle for no reason, automatically creating more than 'casual contact'. (I'm telling you my division policy, other divisions will most likely use different wording, all ambiguous, making an officer a judge and jury on the spot, it is wrong but this is reality.) Obviously a good lawyer could argue the ambiguity of this.

Derek Flint -

"http://www.sandiegodui.com/unauth.html"

This specifically says 'A phlebotomist - employed by a company which is not a licensed clinical laboratory - is not included on this list. ', this is refering to up until the early 90's when for blood to be drawn a suspect would be brought to a hospital or other medical facility, now that the work is done 'in house' rules regarding outside companies do not apply. (Once again, not saying it's right, it is reality.)

"Also, refusal in CA is a 1 year suspension of your DL, not "indefinite" like you claim."

I was refering to a second DUI convition, once again, my fault, I apparently was not clear in my writing. A refusal to cooperate which leads to a second felony DUI conviction will result in license privileges revoked permanently. (Misdemeanor convictions I believe it takes 3 in a 7 year period for permanent suspension, but I am not positive on that.) This has nothing to do with the criminal portion of the suspension, it has to do with the DMV portion of the suspension. Even once your court ordered suspension has expired the DMV follows it's own policy, and thus the reason for two 'trials' when accused of a DUI.


familyguyfan -

"Are police officers required to have a warrant to search your car when you are pulled over, or can they just do it anyway?"

If license is still probational after certain convitions (most likely a drug conviction) they can search your car for any reason. That lacking as Giovanni said they have to establish 'reasonable cause' (once again an ambiguous phrase). Being pulled over in an area with a large amount of recent theft, the smell of weed, etc. can all be 'reasonable cause'. They can detain you if you refuse to allow a search in order to get a K9 unit over to sniff around the car, if the dog reports anything, 'reasonable cause'. In California not having your ID on you is even 'reasonable cause' as it gives the officer the right to search the whole car (as the ID is small enough to be hidden ANYWHERE).

Now if an officer pulls you over for running a stop sign, he is not allowed to automatically search your car as a search would not provide any additional evidence to help convict you of the supposed crime (running a stop sign.) It really depends upon why the officer pulled you over, and I would politely ask him/her before they go back to run your ID (many times I've seen people pulled over for no other reason than making a quick right turn (suspicious), with the officer knowing that once they pull them over than can asses everything and most likely THEN come up with a valid reason for the stop.)

"Also, is it illegal for someone else to drive your car if you are in it. For example, say a sober person was driving a drunk person home, and they were driving the drunk person's car. Would they have any charges against them?"

As long as the driver has driving privileges in the state he/she is driving, and is insured, there is not an issue with this.

"And finally, do either of these laws vary by state, or are the pretty much the same nationwide?"

Basic rights are set by the Supreme Court and would thus be applicable nationwide. States however can take these and constrict them. (i.e. once the nationwide BAC limit is .08, Wyoming could lower it to .04 if they wanted, but could not raise it to .12). It is always best to check with someone in the actual area you have questions about, policy changes division to division.

 

[familyguyfan]

Thanks for the info srz and Giovanni.

 

[PRMoon]

WOOHOO!

I went to my DMV hearing today and the cop didn't show!!!!
They issued a sopena to him while he was on vacation! His brother picked up the phone when the lady at the hearing office called his house and confirmed it to her!
I then went before the judge at the DMV office, and he said that looks like you've got "lucky mans syndrome". He started a recorder, stated his name, the date, my name and that I was without lawyer, and my case. He then said the officer wasn't present and asked if I would like to have the case dismissed!!! Oh yeah, lemmie think about that for a second Then he said they'd be issuing me a letter from carson city saying that my case was dissmissed and I could use it and my temporary drivers liscense to get my full nevada liscense back!

That's one down, now i have to wait for the DA to give my lawyer a new trial date so I can have my actuall day in court and this whole nightmare will be over.

 

[srz]

That is great news! So the DMV dropped the case completely? Will there be any points and/or record of this on your driving record? If I had to chose one or the other I'd rather have the DMV case dropped and pay the court fees for the criminal portion.

Glad to hear things are starting to look up for you, especially with the obviously weak case they had due to your circumstance.

Good Luck with the rest and Cheers!

 

[Giovanni Casanova]

Re: WOOHOO!

Originally posted by PRMoon
I went to my DMV hearing today and the cop didn't show!!!!

I hope you learned a valuable lesson.*






* NOTE: That lesson is, "You can drink and drive without consequences".

 

[PRMoon]

Re: Re: WOOHOO!

Originally posted by Giovanni Casanova
I hope you learned a valuable lesson.*
* NOTE: That lesson is, "You can drink and drive without consequences".

I don't drink and drive, I cab it home with my roomie or whatever girl i'm with.

The circumstances surrounding my arrest were sketchy at best. My lawyer's pretty confident that I'll have all the charges against me dropped. I'm a VERY safe driver, I don't speed, I've never been pulled over, hell I don't even have a parking ticket to my name.

srz
Yeah it was a total reversal of my revocation. No points or notes going on my record. When i get my letter from carson city I get my full licsense back (I have a temporary liscense right now).
The DMV judge was looking at my case and when he saw the addresses he said " 555 Silverado ranch and you got pulled over at 582 silverado ranch? That's right across the street isn't it?!" Then he read further and said "You gotta be kidding me a .071?!"
So It's looking prettty good for me in court.

 

[thefonz]

I drive drunk ALL THE TIME.....I'm not gonna lie to you guys.....I live in the middle of a town where all I can do is take my car to go anywhere. I don't drink that much anymore but 75% of the time I drink I drive....I should not be allowed to have a license, It's only a matter of time before I get whats comin to me....