I don't question your response. I just cited information from a site which was explaining the California law ( California DUI: Refusal to Take a Blood, Breath or Urine Test | DrivingLaws.org ) in which is mentioned that you cannot demand a lawyer to advise on submitting to the test.

I am not a lawyer.;)

I refused a breathalyzer after I was already in cuffs and had been Mirandized. I caught a charge for it too. But it all got rolled into one when I took a plea deal and was kept away from my home state. But they really can tie you down and forcefully draw blood in AZ. I don't know how they get away with it. Seems it'd be easier to just make refusal count as evidence of impairment. Eventually they'll force a blood draw on someone who has the time and money to really go after the law and it will be a nightmare for the state.

I'm not reading all of the responses as Rick has given the correct response in his post.

FOLKS !
I may have not used the best example.
We are in no way trying to drive around drunk.
My point -we are giving the 5th away in bits and pieces. .
How does this happen?
The plea bargain system?
What can we do to stop it. (even on a individual basis )
Some great points have been mentioned .
I get the feeling attorneys do not want to show their hand sometimes .
Appointed court defense is the worse !
They will tell you to plea anything . Never do they want to spend a minute in a trial.

Some things are worth what you pay for them. In my experience watching DUI cases when sitting in traffic court, waiting for the minor moving violations to get called up, a judge won't let a DUI defendant just show up and plea. They'll get a continuance and are then told to come back with a lawyer. In VA the prosecutor would not talk to anyone unless they had a lawyer. You had to pay into the system to get into plea deal game.

I had a lawyer who, while standing in line with me, waiting for the courthouse doors to open, said he was gonna ask the prosecutor for a deal. Minutes later the prosecutor called him and said the arresting officers had sent him a note saying I behaved well and they wouldn't object to my getting a deal. (The cops had even driven me home and not towed my car after I refused the breathalyzer.) So, when you get offered a good deal and the state has either pretty strong evidence or is a state where you're almost always considered guilty of DUI for refusal, you take the deal.

If they have dash cam footage of your car weaving and then, after stopped, your stumbling through the field sobriety tests and your eyes jerking around while doing the astigmatism test with the pen light, even if you refused a breathalyzer, they have a strong case. And then you might want to consider a plea deal.

If they have nothing because you refused everything and you want to challenge the basis for the traffic stop, get your wallet out. You might win, but you won't do so without a lawyer. And you still will probably end up walking for a year for refusal.

Greg, I think you are reading me wrong. Under no circumstances would I want folks out on the road who have not been vetted in some way to verify they are qualified to drive. That's not what I'm saying. Notice I said "entertaining" reading.

As an aside, at least one court has ruled we have this "right to travel", not by common carrier, but by "the conveyance of the day". That includes the automobile. I agree with the ruling in principle, but in practicality, I want to know that those around me know what they are doing. The best way to accomplish that is through licensing - I recognize that.

What irks me is being forced to give up some of our basic Constitutional rights in exchange for this license. I think that is a very slippery slope. Having accepted this as a society quite long ago, I believe we are now seeing other areas in which the State grants us "priviledges" in exchange for giving up some of our rights (concealed carry, and even basic firearms ownership is one example in which we give up such rights for the "priviledge" of being able to defend ourselves). I'm just not comfortable with the whole "rights for priviledges" exchange that so many seem to be comfortable with. I don't have an answer for this; I'm just kinda venting.

I agree with ya Jeff!

Rick, under the law Leo should have obtained a search warrant to draw blood. It is considered physical evidence (not protected by 5th amendment) as opposed to testimonial evidence ( which is protected. Some jurisdictions hold that a search warrant is not needed since it is a search incident to arrest which is one of the exceptions to requiring a warrant warrant. Conversely there is the argument that supreme court has held that a routine traffic stop does not give rise to warrantless searches....but is a DUI a routine traffic stop? Very sublime arguments.

In my jurisdiction some judges actually go out on DUI ROADBLOCKS so they can issue search warrants on the spot. I personally have a problem with this as it places the judge in a quasi police role rather than an unbiased arbiter of the law. But then I don't make the rules....just challenge them when I think they are unjust.

FWIW Miranda is not routinely required on a misdemeanor arrests.

Jeff....I didn't know you joined the ACLU;)

I knew I liked you for a reason:D

I suspect, but I don't know, that with the optical readers the LEO has they can scan license plates and have their computer automatically pop up alerts on license plates of those with suspended licenses.

When I used to go to my divorced BIL's place and have a few, I'd take a cab both ways. It was about 4 miles and cost me $25 for both trips. Cheap, Cheap, Cheap...He thought I was wasting my money, I pointed out that $10,000 in lawyers, fines, insurance, etc. was about 400 visits to his place. I went there once or twice a month., Cheap, Cheap, Cheap!!

When I travel for my employer, I NEVER drink until I'm back at the hotel. Rental car, strange city, maybe driving on the other side of the road, not worth it. If you get a DUI in the USA, you can get refused entry into Canada, when you arrive there! Nothing like calling the Boss and saying you can't get into Canada and have to hang out at the airport until you can get a flight home. Also, the rental car companies can and will refuse to rent you a car.

So its not just the DUI, it can be your career if you can't travel for work.

Dueller, I don't know that they draw blood here without a warrant. But it's pretty well known here there's no point in refusing, since they'll get it anyway and there's no point adding a refusal charge to the deal.... unless you know you can challenge the PC for the warrant, which I doubt many drunk drivers feel confident about while at the side of the road. I know SITA is a little more strict in AZ since the Gant ruling. I asked my bandmate, who is Phoenix PD homicide, but he doesn't get briefed on the agency updates for traffic stops. Getting a BAC would clearly be related to suspected DUI, so the SITA is probably good there, as long as PC for arrest exists and then arrest is made first.

No one is restricting a drunk driver from traveling in a car, AS A PASSENGER, just not as a driver. They can travel all they want, just not controlling the car.

Rick.....SITA? I'm having a brain fart. Nevermind...figured it out . Lol

One of my nieces got a DUI while parked and sleeping drunk in a mall parking lot. She had pulled over to sleep it off.

A few years ago the LEO was in my gated community and as the PREZ of the HOA, I drove down the street with a beer in my hand to see what was up. The LEO said he could arrest me for drinking and driving even on a private street, and he suggested that I go home. Thank you officer! Apparently you can get arrested for drinking and driving if you're sitting in your car in your driveway in CA.

I know I'm getting a bit away from original post but a refusal is usually a civil sanction as opposed to DUI which is a criminal charge. Given the different burdens of proof at trial I see a number of cases where you lose the refusal but win the DUI.

From what I've read, there are numerous ways you can get a DUI without actually doing the "D" part.

When I took driver's ed in high school, I think the rule was just that the keys couldn't be in the ignition. Now they can get you on a full blown DUI charge for driving a golf cart on private property.

Here in Washington, you can get a DUI on a bicycle. You can get a DUI for simply having the keys in the ignition, whether the car is running or not, whether you are inside it or not. It can be on jackstands in your garage and you can get a DUI. You can get a DUI riding a dirt bike on a trail. You can get a DUI in a boat that is tied up (this is a favorite at our local Seafair unlimited hydroplane races - boats tied up on the logboom outside of the course - even boats that have not moved for days and are blocked in ten deep have their owners cited). You can get a DUI up in the woods in hunting camp in the middle of the night, asleep in your tent, if the keys are in the ignition or your truck. And on and on... the original intent has been well and truly lost.

So when should law enforcement be able to force a field sobriety test, a breathalzer, or blood draw?

If you are driving erratically but have the sense to refuse these tests, you should be allowed to go on your way.

Probable cause or whatever I'm sure is abused and is a slippery slope, but in theory is sensible and just.

Never unless the driver agrees out of a feeling of civic duty?

Point being -the 5th amendment is stomped on.
Either it is recognized or not.

These odd ball cases are the ones that get me worked up a bit. Anybody involved with giving a bicyclist a DUI should feel shame

However, there are tons of drunk and dangerous drivers on the road. Its not like its a problem fabricated by "the man". Lots of people die every single week from drunk drivers

I personally don't think the cops should be able to compel you to give a breath or blood sample unless they already have arrested you. And for that they need probable cause of a crime.

Watching someone stagger totally drunk out of a bar, get into their car, fire it up and put it in reverse? Yes.

Sobriety checkpoint where you're stopped for no PC and asked if you've had anything to drink and then pulled out because the officer smelled booze on your breath? Uh no.

Can't maintain lane or speed, agrees to field sobriety tests (vast majority of people comply), then fails? Yes.

When they start treating cell phone use behind the wheel the same as a DUI, I'll believe the state cares about making the roads safer. Until then DUI enforcement is a politically popular revenue enhancement tool.

so practically speaking you endorse no testing if there is no consent?

You are really missing the point. Completely .

Y'all are really going to be mad if they make talking on a cell phone a felony. It is heavily fined in many places though. Im not sure what it has to do with the dangers of drunk driving though. Two seperate things, both real problems

it was such a simple question. So yes then?

I am more interested in right/wrong verses the intent of the law. Its more interesting to me.

This conversation is about the pleading the 5th , not about driving drunk.
Simple.
Now, if you want to funnel it dwn to drunk laws, please , am I not innocent till proven guilty?
Or
As you want - be assumed guilty because they have trespassed the Amendments?
I am supposed to incriminate myself .?
Or not.
Which is it?
IF you or we keep allowing this, where will it stop?

Where cell phone use while driving is illegal, the fines are nominal and the law completely ignored. Since DUI isn't a felony, I'm fine with cell phone use staying a misdemeanor too. Make them carry the same penalty and enforce them equally. They are both equally dangerous. In the last five days there have two huge accidents walking distance from my house (both actually occurred about 200' from each other), both caused by teenagers texting. One of them crashed through a brick wall and landed their SUV in a neighbor's swimming pool, ala Keith Moon. Sure, they'll be on the hook for the property damage and insurance hikes. But they don't lose their licenses and, if they have other cars, are still driving today.

Check these photos out.
http://www.fox10phoenix.com/story/28525725/2015/03/15/valley-teen-crashes-car-into-neighbors-backyard-pool

My question was smack dab in the middle of the conversation.

So its reasonable to expect nobody to have a forced alcohol test based on the 5th?

Refer back to post #36 on evidentiary vs. testimonial. If you're arrested, then yes, compel the test. If not arrested, test needs to be voluntary. Believe me, 90% of people would still agree to the test, just as most sheeple consent to warrantless vehicle searches. I say get the dummies off the road first.

Bubba Head
 

Good ol' boy. Helped a 'family member' who was in a world of hurt down in GA. Webite answers a lot of your questions about implied consent, 5th, etc.

Atlanta DUI Lawyer Bubba Head

BTW - here in NM, municipalities and some counties have passed rules / laws / ordinances / whatevers permitting seizure of your vehicle upon arrest. Not necessarily conviction! We're a state full of drunk, stupid, mean people with guns. 60% off all drivers have no insurance. Former Gov. Richardson recommended that all drivers in NM, not just those convicted of DUI, but every car be equipped with blow-to-start.

KOBTV: Albuquerque police say Judge John Brennan’s blood alcohol content was twice the legal limit for driving on the night he was arrested. Brennan was arrested early Saturday morning near a DWI checkpoint. Police say he was driving and trying to avoid the checkpoint. He and his passenger, Patricia Mattioli, a state Commission on Higher Education employee, were arrested and charged with drug possession after police say they found cocaine on his pants. A toxicology report says Brennan’s blood-alcohol content was 0.16, twice the legal limit of 0.08. Whether cocaine was in his system won’t be known for several more weeks.
Brennan is the chief judge of the Second Judicial District, which is based in Albuquerque. His peers elected him to that position in 1983. Brennan has served on family and civil courts since 1979. Brennan is on a paid leave of absence, and is in an undisclosed rehabilitation center in California. His cases have been divided up, and Children’s Court Judge Tommy Jewel is the acting district court chief. Brennan has not yet been charged with DWI. The state Supreme Court ruled that Brennan would not be immediately suspended, but needs to appear in front of the court July 14 to argue for his job. The Judicial Standards Commission had sought Brennan’s temporary removal from all judicial duties.

Brennan was married. That wasn't his wife with him when he was busted. She admitted to tooting coke off his "crotch". He was convicted and sentenced to one day of house arrest. He got to choose the day. Guess what day he chose? Super Bowl Sunday. He now works as a lobbyist for a local (big-ass) liquor distributor.

What a world.

New York law requires you to take a blood, breath, urine, or saliva test if you are arrested for a DWI. New York’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your blood, breath, urine or saliva for the purpose of determining your blood alcohol content (BAC). The officer gets to choose which test you take and the test must be taken within two hours from when you were last driving. You have the right to have additional tests taken by a medical professional of your choice only if you first submit to the test requested by the officer.

yeah I saw that post and it makes complete sense to me.


Philosophically It seems right to me. However, the implication seems to be that you can force the test under probable cause. This seems reasonable to me. If you are swerving all over the road, a forced test doesn't seem to violate your 5th rights.

A checkpoint is obviously more tricky.

I find this to be pretty silly. If you are drunk to the point where it is obvious, of course you can lie about it, but who the heck are you kidding ? Saying that YOU ARE INNOCENT UNTIL PROVEN GUILTY, WHEN YOU reek OF EVIDENCE, IS PRETTY DARNED SILLY. I would of course expect someone of low character to lie about it. If you are irresponsible enough to drive while drunk, what's a lie to you ?

Refusing to blow into a tube if you are sober would be stupid. Driving after having more than a couple is even dumber. Refusing to do something that can IN NO WAY incriminate you UNLESS you are guilty is pretty much admission of guilt right there. I'm sorry, I want you off the road if you drink and drive. It isn't a restriction of your rights to be willing to demonstrate sobriety in the face of probable cause.

Hooo, humm yawn
I cant draw a picture here for ya.

if you are sober and blow into a tube you are a sheeple aparently?

I did it once. It was 3:30 AM, I was super tired, and I told the officer I had 2 light beers in 3 hours (truth). It was right after finals week was over and I was exausted. I should not have been on the road but it had nothing to do with the beers.

I just wanted to go home and I knew taking the test would make my night a lot less dramatic. I blew .002 I think. The officer was courteous and sent me on my way.

He had pulled me over for swerving apparently. I have no idea if there was any truth, but it is possible considering my level of tiredness,

your thread solicits a discussion but I think it is disingenuous

I think you are the only one that thinks so.

well

"i can't draw you a picture" is pretty much the opposite of somebody who wants to have a discussion

A lawyer may even consider that evidence of said fact