Taking the 5th discussion

[afterburn 549]

Originally Posted by 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?

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

[aschen]

Originally Posted by Jeff Higgins

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.

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

[Rick Lee]

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.

[aschen]

Originally Posted by afterburn 549

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

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

[afterburn 549]

Originally Posted by aschen

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

You are really missing the point. Completely .

[aschen]

Originally Posted by Rick Lee

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.

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

[aschen]

Originally Posted by afterburn 549

You are really missing the point. Completely .

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.

[afterburn 549]

Originally Posted by aschen

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?

[Rick Lee]

Originally Posted by aschen

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

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

[aschen]

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?

[Rick Lee]

Originally Posted by aschen

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.

[jamesnmlaw]

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.

[widgeon13]

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.

[aschen]

Originally Posted by Rick Lee

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.

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.

[DanielDudley]

Originally Posted by afterburn 549

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?

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.

[afterburn 549]

Originally Posted by DanielDudley

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.

[aschen]

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,

[aschen]

Originally Posted by afterburn 549

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

your thread solicits a discussion but I think it is disingenuous

[afterburn 549]

I think you are the only one that thinks so.

[aschen]

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