Speaking of Driving Under the Influence...

[Jeff Higgins]

This situation is beginning to infuriate me... Long story, but bear with me:

A young, fresh out of college and newly hired co-worker (who is one hell of a bright kid and just an all-around good guy) got stopped over a month ago for expired tabs (he does, like other kids, somewhat inexplicably ignore the details, or the rules, at times). Turns out the area was under some kind of "emphasis patrol" so the lady cop put him through the field sobriety test, which he passed with flying colors. By then a male cop had shown up as "backup" (this kid is all of 6'2" and fairly stout). The male cop opined that he looked good for the field sobriety, so he was good to go - but the lady cop wanted a breathalyzer.

I dunno, maybe the poor kid has sat with me for too long - he refused. No probable cause. Male cop agreed, female cop hauled him in. When finally under arrest and at the station, he blew less than .01% (our "limit" is .08%). He still spent the night in jail and his car was impounded. Oh, and by the way, his passenger was left on the side of the road to fend for himself - at 1:00 in the morning, over 20 miles from home. "You have a cell phone..." was all the cops had to offer.

In the end, the kid was charged with a "Negligent 1", one step below a DUI. Up to a year in jail, thousands of dollars in fines, and likely cancelled insurance. And he did nothing wrong... The arresting officer even says, in her report, that he was only stopped for the expired tabs, she never mentions that he was driving erratically in any way.

So, he hires our local "top gun" traffic lawyer, who demands $2K up front. She advises him to take an "alcohol evaluation", which he does (killing a Saturday in doing so), and also an "alcohol awareness" class, wherein he got to meet victims hurt by drunk drivers or with relatives killed by drunk drivers. The lawyer says this will all look good in court.

First court date comes, and the prosecutor says he did not have enough time to review the alcohol evaluation, so the trial gets delayed. That's where it sits today.

I guess I find it incredible that the prosecution is moving forward on this. One more bit of pertinent information - the city of Lynnwood does not have its own prosecutor. We hire prosecution out to a local, private firm. My sister the lawyer tells me this is quite common, but it results in a situation where virtually everything that hits their desk gets prosecuted - it's how they make money.

*Sigh*. I guess I'm just venting; there is nothing I can do to help him. I'm seeing a young man, however, who has now lost all respect for the police and the legal system. Surprise surprise... He did nothing wrong other than get lazy about his tabs, and this will cost him thousands in legal fees alone. Welcome to the "system", young man. We're handing you off a very, very broken one...

[sammyg2]

Some time must have passed from the time he was operating the vehicle until the time he was processed and breathalyzed at the jail.
How long was that?

He had alcohol in his system. He was operating a vehicle.
Why did he refuse to take a breathalyzer, when everyone in the world knows that's the same as a fail in the eyes of a LEO?

[Jeff Higgins]

Originally Posted by sammyg2

Some time must have passed from the time he was operating the vehicle until the time he was processed and breathalyzed at the jail.
How long was that?

He says maybe half an hour, 45 minutes tops.

Funny how this works, though - everyone assumes that delaying the test will result in a lower reading. Many times just the opposite is true. It depends on where you are on the absorption/dissipation timeline.

Originally Posted by sammyg2

He had alcohol in his system. He was operating a vehicle.

Yes he did, and yes he was. Even if he were right at the legal limit, however, there is simply no possibility he would blow 1/8th the legal limit so soon after being stopped.

Originally Posted by sammyg2

Why did he refuse to take a breathalyzer, when everyone in the world knows that's the same as a fail in the eyes of a LEO?

He was standing up for his rights. There was absolutely no probable cause - he was stopped for tabs. Cops cannot simply test anyone without probable cause, at least in this state. They have to have seen you driving erratically.

One component of our negligent 1 law is just that - you have to have been pulled over for your driving that was "endangering yourself, others, or property". An expired tab was endangering no one.

So, yes, in the end he is simply getting "taught a lesson" for having the audacity to stand up for himself. It should not be that way. Not in the U.S. of A.

[John Rogers]

Here is a pretty good reference website as I suspect that this is happening in CA?

California Implied Consent Warning

If it were me, I would get a lawyer, sue like crazy as it sounds like the cops were sort of a mess and in the end get some money out of it. Every city in CA has a law firm that would happily take this on.

[HardDrive]

No offense Jeff, but the people that run Lynnwood have always struck me as some of the biggest aholes in the universe. And the Johnny Law cops take themselves WAY too seriously.

[72doug2,2S]

You should refuse an unreasonable search of your car, you should not refuse a breathalyzer. That is an automatic car impound. One of my attorney friends and I were discussing this a few weeks ago. I don't like it anymore than you do.

[Dan J]

DUI is a money machine for Lawyers, the courts, insurance co,and local LEO
Total horsedookey IMHO YMMV

[fastfredracing]

Had a similar experience when I was 25. I got pulled over for turning around in a parking lot, that the officer said was a common place to meet for drug deals . I was only guilty of being lost. I did not refuse the breathalyzer. I admitted to the pig that I had a beer with my dinner, and that it was over an hour ago. I was not lying. I was in no way nervous when he pulled us, because I knew that I was completely within the legal limits, and I was polite, and honest with the guy. Figured it was the right way to handle the situation
I tested very low, but after doing the stupid human tricks, and all, he felt that I was too impaired to drive. I was 100 % sober He tossed my car. searched it high and low. He told me he had found some weed residue under my seat ( total bullshat), and impounded my car.
They tested me again at the station, and my numbers were even lower. Spent the night in Jail. They also left my buddy standing on the side of the road
Had to hire a lawyer, and after a few grand, and a whole lot of stress for a few months, they dropped the charges.
I used to dream about hunting that ******* down and getting even with him.
That was the night that I learned that the police were not necessarily looking out for my best interests, and that innocent people do get railroaded

[Jeff Higgins]

Originally Posted by john rogers

Here is a pretty good reference website as I suspect that this is happening in CA?

California Implied Consent Warning

If it were me, I would get a lawyer, sue like crazy as it sounds like the cops were sort of a mess and in the end get some money out of it. Every city in CA has a law firm that would happily take this on.

This was here in Washington. Here is the text of the Washington "implied consent" law:

RCW 46.20.308
Implied consent — Test refusal — Procedures.


(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood.

(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol or THC in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. The officer shall inform the person of his or her right to refuse the breath test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that:...

This "reasonable grounds to believe..." provision is what keeps Washington LEO from pulling over just anyone and randomly conducting sobriety tests. Our New Year's Eve checkpoints and other such un-Constitutional misbehavior from our police have consistently been quashed by this provision. In this case, having been stopped for tabs rather than driving behavior, and having passed the field sobriety tests would indicate the cop had no "reasonable grounds to believe...". The case should have been tossed before it ever got to court.

[ossiblue]

Originally Posted by Jeff Higgins

This was here in Washington. Here is the text of the Washington "implied consent" law:

RCW 46.20.308
Implied consent — Test refusal — Procedures.


(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood.

(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol or THC in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. The officer shall inform the person of his or her right to refuse the breath test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that:...

This "reasonable grounds to believe..." provision is what keeps Washington LEO from pulling over just anyone and randomly conducting sobriety tests. Our New Year's Eve checkpoints and other such un-Constitutional misbehavior from our police have consistently been quashed by this provision. In this case, having been stopped for tabs rather than driving behavior, and having passed the field sobriety tests would indicate the cop had no "reasonable grounds to believe...". The case should have been tossed before it ever got to court.

It seems pretty clear that this whole case should be tossed if the info in your OP is accurate.

Your friend's refusal did not happen during an arrest as required in the statute posted so there should be no penalty for his declining a request. He was stopped for tags, not arrested. While being detained, he passed a field sobriety test and was not arrested. The male officer stated he was "good to go," clearly indicating that your friend was being detained, not under arrest. He was asked to submit to a breathalyzer which he was not required to do as he was not under arrest. Since he was not under arrest at the time of the request, he was not in violation of the statute posted above. The officer should have obtained a warrant as there was no probable cause that a crime had or would be committed and, in fact, all behavior indicated he was not impaired. The statute clearly states that a test cannot be refused if a person is under arrest and the officer has probable cause to suspect intoxication. In this situation, neither of those criteria were met. Your friend refused a request to do something he was not required by law to do, and was arrested. Once arrested, he complied with the statute provisions.

This is the tack I would have thought his attorney would take, and maybe she is.

[aigel]

Are you sure you get the whole story? Why would the female cop call for backup on a routine stop? Possible she didn't get the level of respect she expected? Some cops may take that not only as disrespect but as a sign that their counterpart may be having a loose tongue from a few too many.

After the backup was called, your friend should have known he was in deep doodoo. Now he should have understood that the cop is planning on the need of taking him to jail, needing backup for that. Last thing for your friend to do was to refuse an action that could help him out of the situation by confirming the male cop was correct in his assessment.

This will not be an easy case to get out of, IMHO. We hear a story from your friend's perspective but they will certainly report that he was impaired and that doesn't even have to be from alc. None of the "he's good to go" will make it to the report for sure!

Of course, once the coppers have it out for someone, they will throw the book at them. The cops and the courts get paid to tango, but the citizen isn't! Now this young man is left with thousands of dollars in legal fees, time away from work and an arrest record that will stick even if the case is dismissed. He may even have to plead guilty to a lesser charge and end up with a misdemeanor on his record. Who wins???

G

[911SauCy]

I had a UConn female cop pull me over once.

Turns out we met at a bar the weekend before, she laughed and told me to get lost.

She called me at 11:10pm that night. I banged her for 5 months following that interaction.

5', C-cup, and as flexible as Gumby...not all cops are bad.

[Jeff Higgins]

Originally Posted by ossiblue

It seems pretty clear that this whole case should be tossed if the info in your OP is accurate.

Your friend's refusal did not happen during an arrest as required in the statute posted so there should be no penalty for his declining a request. He was stopped for tags, not arrested. While being detained, he passed a field sobriety test and was not arrested. The male officer stated he was "good to go," clearly indicating that your friend was being detained, not under arrest. He was asked to submit to a breathalyzer which he was not required to do as he was not under arrest. Since he was not under arrest at the time of the request, he was not in violation of the statute posted above. The officer should have obtained a warrant as there was no probable cause that a crime had or would be committed and, in fact, all behavior indicated he was not impaired. The statute clearly states that a test cannot be refused if a person is under arrest and the officer has probable cause to suspect intoxication. In this situation, neither of those criteria were met. Your friend refused a request to do something he was not required by law to do, and was arrested. Once arrested, he complied with the statute provisions.

Correct on every count. Our law states very clearly that we are not subject to the test until we are under arrest, and we cannot be arrested unless the officer has probable cause to believe we are impaired. Refusal to take the test is not grounds unto itself for arrest. In this case, there was clearly no probable cause. Arresting him was retribution for refusing the test, pure and simple.

Originally Posted by ossiblue

This is the tack I would have thought his attorney would take, and maybe she is.

I thought so too. My take on this situation is rapidly shifting to where I believe the attorney could very easily have done so - it seems the obvious thing to do. She has, however, not pursued this avenue. I'm beginning to think it's because it is to her advantage, fee-wise, to drag this out and go through the motions of "representing" him instead. She will charge thousands in fees; she could not do that if she moved for, and won a dismissal early in the proceedings.

Originally Posted by aigel

Are you sure you get the whole story? Why would the female cop call for backup on a routine stop? Possible she didn't get the level of respect she expected? Some cops may take that not only as disrespect but as a sign that their counterpart may be having a loose tongue from a few too many.

Like I said, she was part of an "emphasis patrol". She knew no matter what she stopped him for, no matter what she used as an "in", every stop that night was going to wind up a "DUI" stop because she was going to make it one. As such, it is considered "routine" for a female officer to request male backup when stopping a male driver. This was confirmed by his lawyer, because he thought it was a bit overkill for tabs and asked her about it.

In that regard, one would think the timeline on the request for backup would also be key. The kid does not recall her requesting backup; she obviously did it before even speaking with him. She knew she was going to test him before she even got out of the car.

[jhynesrockmtn]

Cops, common sense, judgement.....

My son was 20, at a low key daytime, few people having a few beers type of thing. His buddies mom and the friend were having issues and she found out he had friends over and called the cops. My son's GF was their designated driver and had nothing. My son had had two beers. They go to leave and two cops pulled up. A male and female.

The male asks a few questions, determines GF had not been drinking, gives him a warning about underage drinking and is letting them on their way when the partner steps in and goes power hungry cop on them. They did submit to a Breathalyzer and he blew a ,08%, the GF nothing. Booked and charged with minor in possession.

Long story short the charges were deferred at court and he ended up ok. He does have this on his military record and if he hadn't been top of his class, would have lost his ROTC scholarship. Good lesson for him and in retrospect I was glad he got busted but the lack of common sense and difference in the way the two officers were handling this was startling. Not to mention clogging the courts with unnecessary cases. I never expected either of my kids to never drink. My message to them was never drive and call me if ever in trouble.

[Jeff Higgins]

I think we all believe if we have just a beer or two and get behind the wheel we are just fine. We all do it. We all think if we are under the "legal limit" we are good to go. If nothing else, this case serves as a warning that we most certainly are not. I guess that's what I find the most disturbing - apparently, even blowing well under the limit can and will get one charged with this "negligent 1" charge and, as a result, cost one thousands in legal fees and court costs, not to mention fines, evaluations, and classes. The whole thing just seems way, way over-zealous to me.

[aigel]

Originally Posted by Jeff Higgins

Like I said, she was part of an "emphasis patrol". She knew no matter what she stopped him for, no matter what she used as an "in", every stop that night was going to wind up a "DUI" stop because she was going to make it one. As such, it is considered "routine" for a female officer to request male backup when stopping a male driver. This was confirmed by his lawyer, because he thought it was a bit overkill for tabs and asked her about it.

In that regard, one would think the timeline on the request for backup would also be key. The kid does not recall her requesting backup; she obviously did it before even speaking with him. She knew she was going to test him before she even got out of the car.

Ok, so he didn't know backup was called ... once he saw the backup, he should have definitely taken the b-test. I have been in speeding traffic stops where the backup showed up and I knew it was not a time to exercise my rights rather than "yes sir, no ma'm ... etc". and it went from "let's put this p-car porcupine into jail" to "let's give this young car enthusiast a break".

Like you said, it is very frustrating. This guy will have lost all faith in the system. But isn't that something we all do eventually? I have had my experiences where they threw the book at me just because they could. I avoid the law like the plague. Maybe I'll be able to fight back later in life, but for now I need my money for the family and a clean criminal record to stay employed!

G

[Tobra]

If you get arrested for doing something that is not illegal, it seems to me that sort of violates your Constitutional Rights. It is going to cost. Maybe next time, don't refuse, but say you want to consult with counsel first.

Letting the clock run a bit to get that billable time, nice.