Taking the 5th discussion

[ossiblue]

Originally Posted by 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

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.

[Rick Lee]

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.

[Rot 911]

Originally Posted by Rick Lee

Depends on the state. AFAIK, you never have to comply with roadside/field sobriety tests. And you should not. They've already decided to arrest you by the time they ask and are just letting you incriminate yourself when you start the test. However, as far as doing the breath or blood test, in some states, you can still get a restricted license after a DUI conviction IF you did not refuse the blood/breath test. If you refuse, that's an automatic one year suspension with no restricted privileges.

So, depending on the state, even if you know you're over the limit, if it's not egregious and you haven't caused an accident or hurt anyone, doing the breath/blood test can help make your suspension a little more palatable, so you can get to work and earn the $15-20k the whole ordeal will end up costing you. I had a buddy refuse the breath test and he ended up having to move to within walking distance of his workplace because of it - one year suspension with no restricted privileges. I also refused, but it was in a different state and part of my plea deal got them to keep it in-state and not report to my DMV or insurer.

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

[afterburn 549]

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.

[Rick Lee]

Originally Posted by afterburn 549

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.

[Jeff Higgins]

Originally Posted by 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.

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.

[afterburn 549]

I agree with ya Jeff!

[Dueller]

Originally Posted by Rick Lee

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.

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.

[Dueller]

Originally Posted by Jeff Higgins

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.

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

[Dueller]

Originally Posted by ossiblue

I am not a lawyer.

I knew I liked you for a reason

[Hugh R]

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.

[Rick Lee]

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.

[GH85Carrera]

Originally Posted by Jeff Higgins

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.

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.

[Dueller]

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

[Hugh R]

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.

[Dueller]

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.

[widebody911]

Originally Posted by Hugh R

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.

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

[Rick Lee]

Originally Posted by widebody911

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.

[Jeff Higgins]

Originally Posted by widebody911

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

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.

[aschen]

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?