Taking the 5th discussion

afterburn 549 · 03-18-2015, 08:37 AM

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.

stomachmonkey · 03-18-2015, 08:42 AM

Sometimes people are so over the limit that they don't know they are over the limit.

Sometimes people are just over the limit but don't know it.

Some places, Dallas is one, a refusal gets you an automatic seat in the mobile medical unit and a mandatory blood draw.

afterburn 549 · 03-18-2015, 08:45 AM

They can invade your body with out your consent? wOW

Crowbob · 03-18-2015, 08:50 AM

In Michigan refusal to blow is a crime and is giving consent.

stomachmonkey · 03-18-2015, 08:51 AM

Quote:

Originally Posted by afterburn 549

They can invade your body with out your consent? wOW

Yup, they have a Judge on call who issues on the spot warrants based on officers "evidence".

Tarrant County Police Set for 'No Refusal' Weekend | NBC 5 Dallas-Fort Worth

afterburn 549 · 03-18-2015, 08:55 AM

So what happened to the 5 th?

GH85Carrera · GH85Carrera's Garage

In some states having a driver's license means you gave consent to a DUI test. For the privilege of driving, you give consent.

LakeCleElum · 03-18-2015, 09:03 AM

Enter "Implied Consent" into your favorite Search Engine....

masraum · 03-18-2015, 09:17 AM

Quote:

Originally Posted by afterburn 549

They can invade your body with out your consent? wOW

IIn Texas, I believe a condition of getting a license is aggreeing to submit. If you refuse, I think you're just automatically screwed.

Tobra · Tobra's Garage

Quote:

Originally Posted by afterburn 549

They can invade your body with out your consent? wOW

They would have to speak to my lawyer about it first. Just because I signed an implied consent that I had to sign to get the privilege to use the roads I pay for, does not mean I can't confer with counsel prior to potentially incriminating myself. California is an implied consent state, naturally, and I have spoken to more than one attorney about it. You are not refusing to take the test, you are demanding to confer with counsel first, as the Constitution guarantees.

"I will wait in your jail until he gets here."

I have also been told that if you do calisthenics while waiting, you blow off alcohol more quickly than you otherwise would.

afterburn 549 · 03-18-2015, 09:22 AM

All good to know, and i reiterate I am not trying to drive impaired.
I just want to know where the 5th went.

Rick Lee · Rick Lee's Garage

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.

afterburn 549 · 03-18-2015, 09:35 AM

When i refused they said even with being pronounced innocent by the jury I could not drive in that state for a year.
i thought that was a real weird dishonest deal..
How ever I think that for me was the most EZ recourse.

Rick Lee · Rick Lee's Garage

Quote:

Originally Posted by afterburn 549

When i refused they said even with being pronounced innocent by the jury I could not drive in that state for a year.
i thought that was a real weird dishonest deal..
How ever I think that for me was the most EZ recourse.

Not at all. Refusal is usually an administrative issue that DMV usually handles - when you signed for your license, you gave consent to a chemical test. Renege on that and they yank the license. In some states refusal is a crime. But you're definitely losing your license if you refuse, regardless of whether they can convict you of DUI. In VA, for example, they can't use refusal as evidence of being drunk. So they need dash cam footage or eyewitness testimony to convict on DUI. If you do the field sobriety test, but refuse the breath/blood test, they still may be able to convict. But by then, what does it matter? You're walking for a year because DMV will yank your license for refusal. In NJ they can use refusal as evidence of DUI and it's pretty much a guaranteed conviction then. Just depends on the state.

In AZ they can tie you down and take your blood, which I think it pretty ridiculous. The trick then becomes whether they are allowed to calculate your BAC at the time of the stop or have to use the number they get at the hospital, which, of course, can be a lot lower than it would have been when you were driving. I don't know how that works.

jyl · jyl's Garage

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.

afterburn 549 · 03-18-2015, 09:44 AM

I would guess they have to use a for REAL medical person to take your blood? LOL
"Practicing medicine" ..

Rick Lee · Rick Lee's Garage

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.

afterburn 549 · 03-18-2015, 10:04 AM

Like i said, I am not trying to skirt the law....
but i am rather shocked that everyone gives up so EZ
I would think the 5th should work as it does incriminate oneself .(any test )

Lapkritis · Lapkritis's Garage

Most people don't know their rights these days.

flatbutt · 03-18-2015, 10:41 AM

Quote:

Originally Posted by afterburn 549

Like i said, I am not trying to skirt the law....
but i am rather shocked that everyone gives up so EZ
I would think the 5th should work as it does incriminate oneself .(any test )

Well the powers that be can make it very expensive for you to enjoy your rights.