Taking the 5th discussion

[Rick Lee]

Implied consent gets around the 5th because driving is not a right; it's a privilege. I have a much bigger problem with sobriety checkpoints (aka pc-less fishing expeditions). There's no implied consent there. You're being detained for no reasonable suspicion or probable cause and you didn't agree to it when you got your license.

[afterburn 549]

Check point should be outlawed..........ahem
They were done away with in Wa state years ago.
There is zero for PC there and should be tossed.

[asphaltgambler]

In Va, the system is completely (actually socially) engineered to steer you down a very narrow path with only 2 possible outcomes. Refusal here is automatic jail - license suspension 1 year unless you have access to very good attorney. If so you'll likely spend more defending that almost un- winable position than if you'd taken the test in the first place then, plead it down

[afterburn 549]

Drunks must not be too smart.
If i was drunker then kooter Jones.I would not give then any evidence.......LOL

[greglepore]

Implied consent is the rule, not the exception. As Rick pointed out, driving is a civil privilege, not a right, in accepting the privilege a condition is that you consent to dui testing. I'm libertarian mostly, but don't really have a problem with that. So yeah, if you don't consent to the test you're presumed in violation.

[Rick Lee]

Originally Posted by greglepore

So yeah, if you don't consent to the test you're presumed in violation.

As long as that only means DMV can yank your license, I'm fine with it. Where I have a problem is when refusal becomes a crime in itself AND the DMV can tell your insurance co. about it AND require you to get SR22 insurance, thereby bringing the full effect of a DUI conviction down on you, when you haven't been convicted of anything.

FWIW, a while back in VA a judge dismissed a few DUI cases (where the perps were guilty as sin) because he didn't like the wording of the law that .08 or above "shall be presumed to be guilty of DUI" or something to that effect. He just did it for a few cases to motivate the state to take it to a higher court or rewrite the law. I don't know what happened about that.

[Tervuren]

Originally Posted by Rick Lee

Implied consent gets around the 5th because driving is not a right; it's a privilege. I have a much bigger problem with sobriety checkpoints (aka pc-less fishing expeditions). There's no implied consent there. You're being detained for no reasonable suspicion or probable cause and you didn't agree to it when you got your license.

+1

Stopping everyone...well, it reminds me of a time in Germany.

"Papers please."

I don't want us conditioned to accept that.

I've called in on drunk drivers before, only response I've gotten was a small town police force jurisdiction. The driver didn't speak English, so they had to get in a police officer that spoke the driver's language. I don't know the details of why the guy chose to blow, but it was obvious he was so drunk he needed support to get to the squad car in hand cuffs.

His driving was such that it took him 30' of road. If there was less than 30' he was weavubg using the shoulders/off the marked lines.

When he tried to pass a tractor trailer I got to see what happens when an 18 wheeler goes into drift mode. More smoke than a Tony Stewart NASCAR burn out.

Fortunately when he got the interstate, it was in a small town that responded. The state had a speed trap on the north bound and never moved it south bound.

Neither Charlotte nor Gastonia would do anything other than "make a note of it".

If the police hadn't sent a unit on the way in the small town I would of had to wreck the guy, he was going to hit a car head on with his need to use three lanes of road.

I am against random stops, I am against stopping everyone in a checkpoint, I am also against drunk driving.

[ossiblue]

Originally Posted by Rick Lee

Now, the interesting thing would be how they treat an unlicensed driver or someone who's driving on a suspended and is suspected of DUI. Is such a person then still bound by implied consent? Seems to me, they could not be punished for refusal (in a state where refusal is just a DMV administrative issue) because they either don't have a license, which means they didn't sign onto implied consent, or their suspended license means they no longer have any privileges to be taken away or an in-force promise to give a chemical test.

I can only speak to California law, but I'd bet other states are similar.

The California law states, "23612. (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153."(underlined emphasis, mine.)

In other words, not having a license does not release you from implied consent, nor the punishments which include fines, as well as license suspensions. Since the person had no license to suspend, that would be moot but they would then face violations related to driving without a license which are more severe than a mere suspension.

[Jeff Higgins]

Originally Posted by Rick Lee

Implied consent gets around the 5th because driving is not a right; it's a privilege.

Do a search on "right to travel" for some very entertaining reading on driving as a "right" vs. driving as a "priviledge".

The mere notion that we live in an age where people accept a situation where the government grants them "priviledges" in exchange for forfeiting some of there rights really gets my blood boiling.

[greglepore]

Jeff, traveling is a right. Intermingling with others requires responsibility. You've made the same argument on the bike threads. If you're going to wield a 1 ton plus machine as part of your right to travel, then I have no issue with the state requiring a degree of responsibility. Same as flying etc.

You can travel by common carrier, taxi cab, horse or otherwise without implied consent. Its not "right to travel" its right to operate a motor vehicle. Somewhat different concepts.

[Rapewta]

First..
No one should drive impaired. We all know that.

Here is my experience.
I got pulled over at 11 pm for running a stop sign.
I had just started drinking 30 minutes prior. Drinking in my car after I left band practice. Yea... a pint of hard stuff.
The hiway patrolman smelled booze on my breath. He asked if I had drank that night.
I said yes. One drink.

Out of car and the whole thing started.
I was scared. I went through all the roadside tests and then the big one...
Blow into the tube. Twice. I passed and was let go. I kissed the driveway at my house when I got home.

What I learned was what happened a year later.

I had been drinking (buzzed, not smashed) and got tunneled into a roadside
sobriety check point.

I don't approve of what I am about to say but it kept me from going to jail.

The officer tried to stuff his face into my driver's side opening.
He asked me if I had been drinking and I went for "all or nothing."

I said "no".

End of interrogation.
He handed me a brochure on driving safe and told me to proceed.

If you have had a couple and get caught in a random DUI checkpoint.
Tell them you have had nothing. Admit to one beer and you are hosed dude.

However... don't drink and drive anymore. Be Safe.

[DanielDudley]

Originally Posted by afterburn 549

Please no trolls.
Why do people submit to roadside test ESP if they know they are cooked?
About 30 years ago I was pulled over .
I / we had been at fuel injection class, free beer,etc
10 PM @ night.
On way home my buddy and i were driving in side ways rain way out in no where Ville.
Blink blink blue blink.
I knew I was on the edge of what ever the level was.
I had a CDL.
I elected not to jump the hoops.
Went to court /trial, dismissed. won. No evidence.
Jury said innocent.
I no longer gamble the system, but........why would anyone incriminate them self?
Losing a license for a year, or not allowed to drive in THAT state sees like a much better consolation prize then saying here I am i did it.

You are implying that people who drink and drive would be in a rational state of mind.

[afterburn 549]

Originally Posted by DanielDudley

You are implying that people who drink and drive would be in a rational state of mind.

You are a troll or have comprehension problems ?
In ether case take your B.S. somewhere else and i hope everyone else tells you that too.

[SoCal911T]

Study: Support For Bill Of Rights Highest While Attempting To Talk Way Out Of Drunk Driving Arrest

[tadd]

The one 'successful' DUI avoidance by a friend I know of... buddy was in his 928 and he knew he was over. Didnt think he was impared, just knew he was over. So when he got pulled over, he just locked his car (dark tinted windows), and fell asleep for several hours. Pissed the police off right royal, but blew clean when he got out....

[Dueller]

Originally Posted by jyl

I have not researched this, so just off the cuff - I'm not sure why the 5th Amendment should protect you from being required to take a breathalyzer test, or from penalties (license suspension) for refusing to take the test.

The breathalyzer collects physical evidence, which is different from compelled testimony by the accused. The 5th Amendment has been held to not protect a criminal suspect against having his fingerprints taken, or a DNA swab collected. A breathalyzer test is analogous to those tests.

I'm not, off the top of my head, aware of a high court holding that the breathalyzer test violates the 5th Amendment.

This is a correct analysis of the 5th amendment question...testimonial (protected under 5th amendment) versus evidentiary (not protected). When you are forced to give a blood test usually a search warrant is required.

As far as implied consent the officer must have reasonable suspicion before requiring; I.e., careless driving, open container,admission of drinking, smell of alcohol, etc.

[petrolhead611]

Personally I think that the alcohol limit should be zero,; no arguments then about DUI.

[Rick Lee]

Originally Posted by petrolhead611

Personally I think that the alcohol limit should be zero,; no arguments then about DUI.

It wouldn't change a thing that we're discussing. No one (except you) is arguing the BAC limit. We're discussing the right to refuse field sobriety and chemical tests. And I would most certainly refuse a field sobriety test, even if I'd had nothing to drink at all. Why help further the police state? Might be ok with you, but it is not with me.

FWIW, when using a cell phone while driving is treated with the exact same degree of seriousness as is DUI, then I'll think the state really cares about road safety. Until then DUI is mostly political BS and revenue collecting.

[ossiblue]

Rick has pretty well covered this issue in his posts, but to address the OP's original question (where is the 5th?), the answer is buried in the procedures.

(Using California law as example). As stated by Rick, you do not have to submit to a field sobriety test prior to your arrest and the police must advise you of that. Your refusal, prior to arrest, cannot be used as evidence in court and cannot be the reason for a subsequent arrest. If you are arrested, it must be due to some other factor that led the officer to probable cause. This procedure is the 5th amendment protection against self-incrimination. The FST gathers evidence, as stated in other posts. You cannot be forced to give evidence against yourself (5th amend.) thus, you can refuse the request to test, prior to arrest.

Once arrested, the game changes, and you must submit. You cannot demand an attorney to advise your about submitting to a test. Refusing the test at this stage can be used as evidence in court.

[Dueller]

Sorry L.J.....have to disagree with your post-arrest analysis. 5th amendment protection does not stop with your arrest.

FWIW I am a criminal defense atty