Quote:
Originally Posted by ossiblue
It seems pretty clear that this whole case should be tossed if the info in your OP is accurate.
Your friend's refusal did not happen during an arrest as required in the statute posted so there should be no penalty for his declining a request. He was stopped for tags, not arrested. While being detained, he passed a field sobriety test and was not arrested. The male officer stated he was "good to go," clearly indicating that your friend was being detained, not under arrest. He was asked to submit to a breathalyzer which he was not required to do as he was not under arrest. Since he was not under arrest at the time of the request, he was not in violation of the statute posted above. The officer should have obtained a warrant as there was no probable cause that a crime had or would be committed and, in fact, all behavior indicated he was not impaired. The statute clearly states that a test cannot be refused if a person is under arrest and the officer has probable cause to suspect intoxication. In this situation, neither of those criteria were met. Your friend refused a request to do something he was not required by law to do, and was arrested. Once arrested, he complied with the statute provisions.
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Correct on every count. Our law states very clearly that we are not subject to the test
until we are under arrest, and we cannot be arrested unless the officer has probable cause to believe we are impaired. Refusal to take the test is not grounds unto itself for arrest. In this case, there was clearly no probable cause. Arresting him was retribution for refusing the test, pure and simple.
Quote:
Originally Posted by ossiblue
This is the tack I would have thought his attorney would take, and maybe she is.
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I thought so too. My take on this situation is rapidly shifting to where I believe the attorney could very easily have done so - it seems the obvious thing to do. She has, however, not pursued this avenue. I'm beginning to think it's because it is to her advantage, fee-wise, to drag this out and go through the motions of "representing" him instead. She will charge thousands in fees; she could not do that if she moved for, and won a dismissal early in the proceedings.
Quote:
Originally Posted by aigel
Are you sure you get the whole story? Why would the female cop call for backup on a routine stop? Possible she didn't get the level of respect she expected? Some cops may take that not only as disrespect but as a sign that their counterpart may be having a loose tongue from a few too many.
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Like I said, she was part of an "emphasis patrol". She knew no matter what she stopped him for, no matter what she used as an "in", every stop that night was going to wind up a "DUI" stop because she was going to make it one. As such, it is considered "routine" for a female officer to request male backup when stopping a male driver. This was confirmed by his lawyer, because he thought it was a bit overkill for tabs and asked her about it.
In that regard, one would think the timeline on the request for backup would also be key. The kid does not recall her requesting backup; she obviously did it before even speaking with him. She knew she was going to test him before she even got out of the car.