Taking the 5th discussion

[Jeff Higgins]

Originally Posted by 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.

Pretty much the same here in Washington - you must first be arrested, along with all of the probable cause requirements that go with that, before the test becomes mandatory. Prior to actual arrest, it is strictly voluntary. Many of our dishonest cops will try to intimidate folks into taking the test, saying they will arrest them if they don't. Refusing the test is not grounds for arrest, since you legally don't have to submit until you are arrested.

[DanielDudley]

The Garage Journal Board

[Rick Lee]

Originally Posted by DanielDudley

Saying that YOU ARE INNOCENT UNTIL PROVEN GUILTY, WHEN YOU reek OF EVIDENCE, IS PRETTY DARNED SILLY.

Just wow. Guilt has nothing to do with whether you did it. You are only guilty once the state has proven its charges or you have confessed. For example, we all know OJ and Casey Anthony did it. But they were found not guilty because the state did not prove their charges. I'm one of those crazy people who will always make the state prove their charges.

I just cracked open my first beer in about four days and I guarantee I smell like I've been drinking. I'm not gonna let a cop go on a fishing expedition because he says he smells booze on my breath. Everything he needs to know about me is on the documents I hand him - license, registration and proof of insurance. Anything else he gets on me ain't coming from me voluntarily.

Been drinking? No comment.
Know how fast you were going? No comment.
Where are you coming from? None of the state's business. Am I free to go now or are you detaining me?

[sc_rufctr]

Interesting thread but... Why not just not drive after you've been drinking?

As a suggestion, If you want to drink then don't be the designated driver or drink at home.

[john70t]

Originally Posted by widebody911

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

Back in high school (the 80's) a friend told me about getting caught drinking in the park.
He was the most intelligent/aware/balanced/best driver of the bunch.
Chucked his keys into the grass more than 25 feet away when the officer wasn't looking.
No keys=No drive.
He picked them up, showed them to the officer, and walked away.
Had a buddy pick up the car soon after.
Legally the cops would have to first prove he could have driven the vehicle without keys. No go.
Meanwhile, he had a multitude of other cars ready to get around.

Conversely, I read a story of a guy getting the full force of a DUI for pulling into a parking lot and 'sleeping it off'.
The right thing to do.

Moral of the story is:
Break the law, skip sentence.
Try to follow the law, go to jail.

[Dueller]

Have any of you armchair Clarence Darrows read the fifth amendment? If you have your are aware it covers far more than self incriminating prohibitions such as right to grand jury in felonies, protection from double jeopardy, due process in both civil and criminal cases, etc. Since the original poster was asking about the prohibition against self incrimination the 5th is very succinct....paraphrasing ....no person shall be compelled to be a witness against himself in any criminal proceeding. That's it. And the courts have interpreted that as you are not required to give testimony in a case against you. And your failure to testify cannot be used as an admission of guilt.in all jury instructions.

The taking of blood is not considered testimonial...it is physical evidence. Much like fingerprints or DNA for example.

[Jeff Higgins]

Originally Posted by sc_rufctr

Interesting thread but... Why not just not drive after you've been drinking?

As a suggestion, If you want to drink then don't be the designated driver or drink at home.

This is no more than an interesting debate on our civil rights to me. For the record, I have never been stopped under suspicion of DUI. I've never been asked to perform the roadside test, nor have I ever been asked to blow into a breathalyzer. Come to think of it, I have never actually even seen one. Total non-issue for me.

The forfeiture of specific rights to garner specific privileges granted by the state is the larger issue, at least in my humble estimation. I don't think we should have to do that. In a country wherein "all power is inherent in the people", the people have the authority to grant their government certain powers over them - the government does not have the authority to grant, and therefor deny, privileges.

[Dueller]

I'm a little confused, Jeff. Are you saying the state should not be in the business of licensing drivers?

[Jeff Higgins]

Originally Posted by Dueller

I'm a little confused, Jeff. Are you saying the state should not be in the business of licensing drivers?

Not at all. I mentioned earlier in this thread that I sure feel better knowing those around me have been vetted as capable of handling their vehicles in a safe and responsible manner. Believe me, I have spent a considerable amount of time in countries where that is not the case and, trust me, we do not want that.

My issue is with things like "implied consent" in exchange for that license. That, and things like having to consent to random, unannounced searches of one's home and premises - with no warrant - to secure higher classes of FFL. There are many other situations under which we give up rights in exchange for privileges, or permission to do things or own certain things. Therein lies my beef...

[Dueller]

Gotcha....thanks for clarifying for me.

[Tervuren]

Originally Posted by sc_rufctr

Interesting thread but... Why not just not drive after you've been drinking?

As a suggestion, If you want to drink then don't be the designated driver or drink at home.

You have missed the point. Please re-read.

This thread is not about BAC.

[Dueller]

"[I was arrested for public drunkeness]...I had the right to remain silent but not the ability." --Ron White

The OP asked the basic question Why would anyone incriminate themselves. It was in the context of a suspected DUI stop so this discussion has degenerated into a debate over implied consent law.

As to core original question people let's change the facts a bit. Suppose you are pulled over because your car was observed a a murder crime scene. The officer approaches and in the course of a brief investigatory stop asks you are there any weapons in the car. You have a CCP AND THERE IS A PISTOL IN YOUR CAR. WHAT IS your answer? What if he then asks do you know anything about murder of John Doe? Do you say we'll I only shot him twice in the leg but I'm no murderer much like a "I've only had two beers" response to have you bee drinking question.

[Rick Lee]

Originally Posted by Dueller

As to core original question people let's change the facts a bit. Suppose you are pulled over because your car was observed a a murder crime scene. The officer approaches and in the course of a brief investigatory stop asks you are there any weapons in the car. You have a CCP AND THERE IS A PISTOL IN YOUR CAR. WHAT IS your answer? What if he then asks do you know anything about murder of John Doe? Do you say we'll I only shot him twice in the leg but I'm no murderer much like a "I've only had two beers" response to have you bee drinking question.

Again, depends on the state. In AZ if you have a CCW and an LEO asks you if you're armed, it's a crime to lie about it, though there is no duty to inform if not asked. If you have no permit, it's still legal to carry, but you don't have to answer truthfully if asked if armed. Crazy, I know.

As for the other questions - no comment, am I free to go or are you detaining me? Absolutely no good can come from playing 20 questions with a cop on the side of the road. They are not trying to clear you.

[Dueller]

Originally Posted by Rick Lee

As for the other questions - no comment, am I free to go or are you detaining me? Absolutely no good can come from playing 20 questions with a cop on the side of the road. They are not trying to clear you.

Truer words have never been spoken. The reality is that a police investigation has long since been undertaken before the blue lights come on.

[aschen]

Originally Posted by Dueller

"[I was arrested for public drunkeness]...I had the right to remain silent but not the ability." --Ron White

The OP asked the basic question Why would anyone incriminate themselves. It was in the context of a suspected DUI stop so this discussion has degenerated into a debate over implied consent law.

As to core original question people let's change the facts a bit. Suppose you are pulled over because your car was observed a a murder crime scene. The officer approaches and in the course of a brief investigatory stop asks you are there any weapons in the car. You have a CCP AND THERE IS A PISTOL IN YOUR CAR. WHAT IS your answer? What if he then asks do you know anything about murder of John Doe? Do you say we'll I only shot him twice in the leg but I'm no murderer much like a "I've only had two beers" response to have you bee drinking question.

Is there really a parallel their? Its perfectly legal for all but the smallest guy or the largest beer to have 2 and drive. Leg shooting, not so much.


If you tell an officer you had two beer is their a legal basis for him to envoke probable cause or whatever the jargon is? If so is this any different than "I prefer not to say officer".

I fully support our 5th amendment right, but grayscale for me is what constituents evidence for probable cause? I am sure this is abused frequently, and is more alarming than a cop forcing a test on somebody with legitimate cause

[Rick Lee]

Originally Posted by aschen

If you tell an officer you had two beer is their a legal basis for him to envoke probable cause or whatever the jargon is? If so is this any different than "I prefer not to say officer".

If you tell a cop you've had two beers AFTER being stopped for some other violation, which he can probably attribute to your having just consumed alcohol (you admitted it), you have just handed him a big, gift-wrapped package of probable cause. This traffic stop will not go well for you. Never mind that just about everyone lies to cops about how much they had to drink and the cops know it. Tell them two beers and they'll assume it's four or more. Assuming he has no more pressing calls and is trained in administering field sobriety tests and breathalyzers, you're going to go through the process.

BTW, do you have any open containers in the car? Any outstanding warrants for FTA or unpaid tickets? Oh, you have just about ensured you're not going home that night.

[Dueller]

Two regular sized beers in space of an hour will put the average sized person close to .08 BAC limit. Its a fairly low tolerance and most people at .08 do not feel they're impaired. But yes, any admission of drinking gives rise to PC.

[asphaltgambler]

I agree with Rick, again the entire process by design is to steer you down a very narrow path. Every word asked usually repeatedly to elicit the answer they need to give reason for search / arrest / seizure.

In Va BTW, if you are in the vehicle, over the limit, engine off, do not have to be in the driver's seat but keys are still in ignition - guess what? You're going to jail.............................................. .................

[Dueller]

Originally Posted by asphaltgambler

I agree with Rick, again the entire process by design is to steer you down a very narrow path. Every word asked usually repeatedly to elicit the answer they need to give reason for search / arrest / seizure.

In Va BTW, if you are in the vehicle, over the limit, engine off, do not have to be in the driver's seat but keys are still in ignition - guess what? You're going to jail.............................................. .................

I'll take it a step further....keys do not have to be in ignition. Just within access to occupant. And sometimes not even that.

[Rick Lee]

Originally Posted by Dueller

I'll take it a step further....keys do not have to be in ignition. Just within access to occupant. And sometimes not even that.

Gotta toss that DME relay into the woods to be really safe these days.