Breathalyzer "not admissible in court" -- say what???

AggieMike88

AggieMike88

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The original "I don't know it all" of aviation.
I have a question for @JCranford and other law enforcement officers that haunt our forums.

I am watching the Live*PD show on the A&E channel. They show the Calvert County sheriff deputies work a case of a driver who wrecked his car and then abandoned the scene by walking to his nearby home. They perform the field sobriety test and the driver is definitely showing signs of intoxication. Then one of the deputies returns to his car to get his breathalyzer test unit. As that deputy returns, the one administering the tests and interacting with the driver comments "this is the one that is not admissible in court".

Why would the portable breathalyzer not be admissible? Maybe because it isn't as reliable as the big units at the station and blood draws?
 
Could be that the driver claimed to be shook up by the wreck which caused him to go home and drink a fifth of shine, smoke an ounce of crystal meth, beat his wife-cousin and then tell the cops he was stoned kawl soburr when they arrive.


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AggieMike88 said:
Why would the portable breathalyzer not be admissible? Maybe because it isn't as reliable as the big units at the station and blood draws?
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Your assumption is correct. A portable breathalyzer is only an additional way to establish probable cause for a DUI arrest after doing field sobriety tests. They are reliable and calibrated, but not to the same level as the intoxilyzers used at the station. As such, they are not admissible in a court trial by themselves, but simply a part of the bigger picture of building the probable cause.
 
In Colorado you can refuse the portable breathalyzer without penalty, but if you refuse to submit to the one at the station after you're arrested you automatically lose your driver's license for a year.
 
ColoPilot said:
In Colorado you can refuse the portable breathalyzer without penalty, but if you refuse to submit to the one at the station after you're arrested you automatically lose your driver's license for a year.
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Sort of....there is an administrative review by the dept of revenue to see if it was reasonable to demand a breath or blood test. Ya see there was a Denver judge who got stopped and arrested for DUI and he had to find a way to weasel out. Being the fine state we are if it's good enough for the judge it's good enough for the rest of us.
 
Is this really a good thing.
 
Sac Arrow said:
Is this really a good thing.
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With the way enforcement is going, yes, I think controls and review of LE actions are a very good thing. LE are being trained to arrest on any suspicion it seems to me.
 
Stingray Don said:
I saw that too. The cop goes to the guys house and asks him, "have you been drinking since the accident?" The guy says "no". Talk about a time when it would have been best to remain silent!
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I've never seen anyone win a cash prize for talking to the police, I see zero reason (especially nowadays) to talk to police, except maybe to ASK a few questions.
 
The preliminary alcohol screening (PAS) device is the roadside "breathalyzer" used as a field sobriety test. It is indeed admissible in court just like any other field sobriety test such as nystagmus of the eyes, walk and turn, etc. Field sobriety tests are completed prior to the arrest and are optional for adults over 21. Once arrested, the person arrested for DUI is then required to submit to a chemical test of either their breath or blood. If they choose a breath test, oftentimes the same device that was used for the PAS test is used again for the evidentiary chemical test after the arrest. The difference is when it's used as an evidentiary test, it prints out the test results which is attached to the arrest report and retained as evidence. These test can, and are often administered in somebody's house if they walk home after a crash. They can be arrested if the officer determines they were intoxicated at the time of the crash.


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Clark1961 said:
With the way enforcement is going, yes, I think controls and review of LE actions are a very good thing. LE are being trained to arrest on any suspicion it seems to me.
Click to expand...

I agree that checks and balances need to remain in place, but which "way is enforcement going?"


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Stingray Don said:
I saw that too. The cop goes to the guys house and asks him, "have you been drinking since the accident?" The guy says "no". Talk about a time when it would have been best to remain silent!
Click to expand...

Quite often people make it very easy for law enforcement even if they remain silent. One example that comes to mind is the guy who was three times the legal limit 20 minutes after he crashed his car that was littered with empty beer bottles.


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Stingray Don said:
I saw that too. The cop goes to the guys house and asks him, "have you been drinking since the accident?" The guy says "no". Talk about a time when it would have been best to remain silent!
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Remember comedian Ron White and his "I got thrown out a bar" routine? "I was told of my right to remain silent....but I didn't have the ability"
 
Kevin16587 said:
I agree that checks and balances need to remain in place, but which "way is enforcement going?"


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As I said, arrest on any suspicion was the reason for the administrative review before a license suspension. The admin review was added after arrests increased but it turned out that the arresting office lacked sufficient cause for the arrest. In other words the courts said no, no, no and the review had to be conducted because LE had been trained to go overboard on the arrests. After all, all the arresting officer had to say was that he was just doing what he/she was trained to do and they were off the hook. LE is always innocent dontchaknow.
 
When I did this sort of thing in FL, the admissible test was the Indium Crimper method.

A device captured three samples in a divided tube, which was then crimped. The idea was a subject was entitled to have a sample available to him or her for their own testing. Makes sense, since otherwise they are totally at the mercy of the state's analysis, which might not be impartial.

May or may not still be the case, and likely varies state by state.
 
FastEddieB said:
When I did this sort of thing in FL, the admissible test was the Indium Crimper method.

A device captured three samples in a divided tube, which was then crimped. The idea was a subject was entitled to have a sample available to him or her for their own testing. Makes sense, since otherwise they are totally at the mercy of the state's analysis, which might not be impartial.

May or may not still be the case, and likely varies state by state.
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That sounds like a pretty neat method. Never heard of it before.

In the case of a breath test currently used, the only evidence is the printed piece of paper. However, it's explained to the arrestee that there is no sample retained for later evaluation and they have the option to get a blood test in addition to the breath test. The evidentiary testing equipment is tested and certified by a third party lab every couple of years. The machine also completes self checks every time it's turned on which won't allow it to capture a sample if it's not working properly. The hand held PAS devices are required to have their accuracy checked every 10 days using a certified solution provided by a lab.

In the case of a blood test, there is a sample retained which is made available to the defendant for their own testing if they want it.


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Clark1961 said:
As I said, arrest on any suspicion was the reason for the administrative review before a license suspension. The admin review was added after arrests increased but it turned out that the arresting office lacked sufficient cause for the arrest. In other words the courts said no, no, no and the review had to be conducted because LE had been trained to go overboard on the arrests. After all, all the arresting officer had to say was that he was just doing what he/she was trained to do and they were off the hook. LE is always innocent dontchaknow.
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I realize we all have different experiences and opinions, but in my years in law enforcement I've seen training improve, accountability increase (every encounter is filmed by some "expert" and ends up on the news), liability issues increase, public perception become very polarized, and a growing number of city and county prosecutors on a man hunt so they can add the conviction of a cop to their resume.

Truth be told, I spend way more time assisting people than I do taking people to jail, but that doesn't make interesting news to read or watch. I carry jumper cables, water for radiators, and an EMT bag with oxygen. I've bought stranded motorists gas and/or oil, or a bus ticket. Ive allowed people to use my personal phone or my AAA card to get a tow truck. I've provided rides to countless people to the nearest restaurant, hotel or car repair place. Once, I used my personal pickup truck to tow a couple's RV to their destination 30 minutes away when the transmission on their truck went out. All of my coworkers have similar stories.


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Kevin16587 said:
I realize we all have different experiences and opinions, but in my years in law enforcement I've seen training improve, accountability increase (every encounter is filmed by some "expert" and ends up on the news), liability issues increase, public perception become very polarized, and a growing number of city and county prosecutors on a man hunt so they can add the conviction of a cop to their resume.

Truth be told, I spend way more time assisting people than I do taking people to jail, but that doesn't make interesting news to read or watch. I carry jumper cables, water for radiators, and an EMT bag with oxygen. I've bought stranded motorists gas and/or oil, or a bus ticket. Ive allowed people to use my personal phone or my AAA card to get a tow truck. I've provided rides to countless people to the nearest restaurant, hotel or car repair place. Once, I used my personal pickup truck to tow a couple's RV to their destination 30 minutes away when the transmission on their truck went out. All of my coworkers have similar stories.


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Wonderful. None of that changes anything at all about the system that has developed here.

And yes, local LE are trying to do the same thing you just did by spotlighting good deeds in the media. How many good deeds does it take to offset one arrest with insufficient cause?
 
Clark1961 said:
Wonderful. None of that changes anything at all about the system that has developed here.

And yes, local LE are trying to do the same thing you just did by spotlighting good deeds in the media. How many good deeds does it take to offset one arrest with insufficient cause?
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I wasn't highlighting anything intentionally. Rather just explaining what consumes much of my time and it's different than what the public is led to believe. I have definitely witnessed law enforcement officers making mountains out of molehills, but that's the exception. I have never witnessed an officer fabricate evidence or arrest somebody with the knowledge there is insufficient cause. I have seen and been personally involved on many cases that were ultimately dismissed in court due to a lack of evidence. That has nothing to do with the evidence known to the officer at the time of the arrest. I've made errors myself, but my stops or arrests have always been made on good faith and never with any malice or other hanky panky going on. Sure, it happens and it's detrimental to the entire law enforcement community. Kind of like a drunk airline pilot brings the rest down with him.


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In an encounter, judge the cop the way he judges you - detached? professional? if not polite, then at least "neutral"? Traffic stop? I keep my hands in plain view, on top of the wheel - while you know you're a swell guy, the cop is walking into an encounter with an unkown. Put him at ease - break tradition and tell the truth. .
"Do you know why I stopped you?"
"I was doing 70 in a 55"?
 
NEVER tell them how fast you were going. They always clock me at 5 less than my speedometer!
 
A friend of mine got out of a speeding ticket by claiming he was DWHUA.

Driving With Head Up A$$

I tried the same thing once and got the Step out of the car please, and now walk this line heel to toe for ten steps.
 
For the most part I've found that police officers are professional, courteous, and all around good folks... although there are always those unfortunate exceptions.

If you really think about it, we've tasked the police with a job that is impossible. They're supposed to keep everyone totally safe and in compliance with the law but within the framework of a free society where they're not(supposed to be) allowed to search anyone without probable cause or violate any of our other constitutional rights.

An innocent family gets wiped out by a drunk driver and the public demands this never happen again. So the politicians write laws, make the penalties for drunk driving higher, they push the bounds of the public's constitutional right to set up checkpoints and compel driver to submit to breathalyzer tests. So now this is happening and people are mad that their rights get violated so they complain about this and get mad at the police. So the police back off on the checkpoints and a few months later a promising young prodigy college student gets run over by a drunk driver. Where were the police? Where was the government? So now the penalties get higher and the checkpoints are back with a vengeance....

Then you have people who thought they were good to drive blowing a .09 and being treated like a criminal, losing their driver's license, possibly losing their job. They may be forced to go to AA wether they have a drinking problem or not.... all these penalties are, ironically, enough to drive a man to drink. I don't want to defend these people too much- after all it's not that hard to just not drink if you need to drive somewhere and the result could be killing someone... but I've always found it kind of strange that a society that encourages people to drink and celebrates alcohol as much ours does suddenly turns someone into such a pariah the moment they get caught a bit over the limit.

I think in terms of enforcement and penalties we're way past the point of diminishing returns on this issue. I'd rather they backed off on the penalties and enforcement a little bit but it may not matter. With any luck we'll have self-driving cars in another decade and this will no longer be a significant problem.
 
Sundancer said:
In an encounter, judge the cop the way he judges you - detached? professional? if not polite, then at least "neutral"? Traffic stop? I keep my hands in plain view, on top of the wheel - while you know you're a swell guy, the cop is walking into an encounter with an unkown. Put him at ease - break tradition and tell the truth. .
"Do you know why I stopped you?"
"I was doing 70 in a 55"?
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I always preferred, "huh? I thought you'd know."
Although, "what do you think I am? A mind reader?" also works well.

Really, though, I do exactly the same as you, less the completely unnecessary and unhelpful admission.
 
Sundancer said:
"Do you know why I stopped you?"
"I was doing 70 in a 55"?
Click to expand...
Do you see any downside to politely asserting your 5th amendment right not to answer that question?
 
Kevin16587 said:
I wasn't highlighting anything intentionally. Rather just explaining what consumes much of my time and it's different than what the public is led to believe. I have definitely witnessed law enforcement officers making mountains out of molehills, but that's the exception. I have never witnessed an officer fabricate evidence or arrest somebody with the knowledge there is insufficient cause. I have seen and been personally involved on many cases that were ultimately dismissed in court due to a lack of evidence. That has nothing to do with the evidence known to the officer at the time of the arrest. I've made errors myself, but my stops or arrests have always been made on good faith and never with any malice or other hanky panky going on. Sure, it happens and it's detrimental to the entire law enforcement community. Kind of like a drunk airline pilot brings the rest down with him.
Click to expand...

A few months back we had 4 individuals get a DA rejected on 2 running from the side of the house, 2 in the car, burg tools in the car, pry marks on the residence and stolen property in the car. 1 of the people waiting in the car was on probation for burglary. All members of a gang that (thanks AB109) are running amok committing burglaries.

According to some people around here, that's just proof that we were overzealous and trumped up nonsense charges because... reasons.
 
In the Police Acadamy, we were taught to NEVER ask "Do you know why I stopped you?"

Get the license and registration and proof of insurance in hand, then politely inform the driver the reason for the stop. Otherwise, the whole stop can degenerate into an argument about whether it was justified.

We were also taught that the infraction should determine whether or not you ticketed, NOT the driver's attitude. But cops, being human, almost always consider attitude in the big picture. I know I did.
 
FastEddieB said:
In the Police Acadamy, we were taught to NEVER ask "Do you know why I stopped you?"

Get the license and registration and proof of insurance in hand, then politely inform the driver the reason for the stop. Otherwise, the whole stop can degenerate into an argument about whether it was justified.

We were also taught that the infraction should determine whether or not you ticketed, NOT the driver's attitude. But cops, being human, almost always consider attitude in the big picture. I know I did.
Click to expand...

I guess my guy slept through that lesson.
I was being passed by multiple cars on the interstate like I was standing still, yet I was pulled over. When he asked me if I knew why I was stopped, I answered, "Because I was the only one you could catch."
He chuckled and said, "Get out of here and be careful."
 
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Dunno, my wife was getting real ****ed at me as I had been stopped several times and the officer let me off. The last time I thought I was sure to get a ticket when the officer got a radio call about someone running on top of moving locomotives near by and he hastily warned me to slow down and took off lights and siren.
 
ircphoenix said:
A few months back we had 4 individuals get a DA rejected on 2 running from the side of the house, 2 in the car, burg tools in the car, pry marks on the residence and stolen property in the car. 1 of the people waiting in the car was on probation for burglary. All members of a gang that (thanks AB109) are running amok committing burglaries.

According to some people around here, that's just proof that we were overzealous and trumped up nonsense charges because... reasons.
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The DA got rejected? :confused2:
 
FastEddieB said:
In the Police Acadamy, we were taught to NEVER ask "Do you know why I stopped you?"

Get the license and registration and proof of insurance in hand, then politely inform the driver the reason for the stop. Otherwise, the whole stop can degenerate into an argument about whether it was justified.

We were also taught that the infraction should determine whether or not you ticketed, NOT the driver's attitude. But cops, being human, almost always consider attitude in the big picture. I know I did.
Click to expand...

My response to that question for more garden-variety traffic violations has always been, "Actually, officer, I don't. I was kind of hoping that you would." It worked pretty well in New York City. Make the cop laugh, and chances are you'll just get a warning. Up here, I don't think it would go over so well.

I've been pulled over for suspicion of DUI several times when performing services at bars (fixing POS systems mainly). Apparently simply pulling out of a bar parking lot is enough probable cause in some officers' minds. Those stops never got any further than my explanation that I was working there, not drinking there. It's still annoying, though. It makes a mockery of the whole concept of probable cause.

I feel the same way about DUI roadblocks. I cooperate because it's the path of least resistance, but the idea that the police can block entire roads and cause traffic jams that stretch for miles simply because they suspect that there exists the possibility that some as-yet unidentified person might have been drinking irks me.

Rich
 
In WA, here's the synopsis.

-suspected DUI driver is asked to perform SFST's (Standardized Field Sobriety Tests) and a PBT (Portable Breath Test/Preliminary Breath Test, depending on who you ask). Both are voluntary. The PBT is not admissible other than to help add to probable cause.

-If probable cause is established, driver is arrested for DUI. Car is impounded with a 12-hour hold (fairly recent law for the hold, if memory serves due to someone who was killed due to a driver getting their car out of impound while still impaired).

-driver is taken to a police facility/jail for breath testing. This may be circumvented for a trip to the hospital for voluntary blood, or blood pursuant to a search warrant. Reasons for this range from drugs being suspected (huge impairment/low PBT reading, etc) or the fact that the local court doesn't like the breath test process/device. An example in WA is the Draeger machine. They replaced the age-old BAC Datamaster machines used for many years. While challenges still happened with the Datamaster, they were accepted technology. Unfortunately when WA State Patrol decided to upgrade to the Draeger machines (WSP handles all the breath testing management for WA law enforcement), it opened the door for a host of challenges by the defense. Many judges flat-out excluded the machines' results up front. Net result is more blood testing via search warrant.

-if you've had another DUI within (I believe) 10 years, you are booked. WA decided to treat repeat DUI offenders like DV's with a mandatory booking. No discretion. Also, children found with the driver at the time of the stop result in child protective services being notified. Again, no discretion.

-there is also an administrative side to the DUI process through department of licensing. This is to determine if your license is suspended, whether you can have an ignition interlock license, etc. this is handled separately from the criminal side, but the outcome of the criminal side can also affect the administrative side. To get a hearing you have to send some paperwork in within a certain window following arrest, and (not surprisingly) a fee...the last DUI I processed (many years ago) the fee was 200.00.

DUI's are a pain in the keester. You are trying to work with an impaired and often emotionally unstable person through a laborious, overly complex process with a boatload of paperwork. I am not joking when I say that my average DUI report (I used to do a lot) was longer than that of any of the several homicides I was the first or second patrol unit on scene for. It is the only misdemeanor that requires more paperwork than the patrol response to an A felony, and it's all because we've allowed a priveledge (driving) to become a "right". Now, we have media complaining that not enough impaired drivers being taken off the streets. It's a no-win. In a time when many departments are struggling to have enough people to respond to 911 calls, media outlets locally were bashing law enforcement for not taking enough drunks off the road. From time of stop to completion of report, 4+ hours is not unreasonable for the officer to be off the road.
 
FastEddieB said:
In the Police Acadamy, we were taught to NEVER ask "Do you know why I stopped you?"

Get the license and registration and proof of insurance in hand, then politely inform the driver the reason for the stop. Otherwise, the whole stop can degenerate into an argument about whether it was justified.

We were also taught that the infraction should determine whether or not you ticketed, NOT the driver's attitude. But cops, being human, almost always consider attitude in the big picture. I know I did.
Click to expand...

Same here. Asking the violator if they know the reason for the stop was discouraged. It's asking for an argument. I simply introduce myself and explain my reason for the stop. I will oftentimes ask the violator if they were aware of the violation. Their response is recorded in my notes. If they play dumb or refuse to answer, I take note of that as well. Usually the response is, "I didn't know how fast I was going."


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Getting back to the original question... From what I understand the ones they use in the field can not be calibrated and can not be used as evidence... The field ones as stated are there to give the police further PC to get you to the one they can use for evidence...

That said, in some jurisdictions there a DUI specialized cars or trucks, that have a "hard mounted" machine that can test you right there... think DUI checkpoints.
 
Tampico Trauma said:
Could be that the driver claimed to be shook up by the wreck which caused him to go home and drink a fifth of shine, smoke an ounce of crystal meth, beat his wife-cousin and then tell the cops he was stoned kawl soburr when they arrive.


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Click to expand...

There was a news story several years ago in the local paper. The headline was "Fast Drinker". Basically the scenario you laid out above. Drunk guy has a wreck, walks home, the police arrive 2 minutes later. Drunk guy claimed to have downed a bottle of something "to calm his nerves" after arriving home.
 
RJM62 said:
My response to that question for more garden-variety traffic violations has always been, "Actually, officer, I don't. I was kind of hoping that you would." It worked pretty well in New York City. Make the cop laugh, and chances are you'll just get a warning. Up here, I don't think it would go over so well.

I've been pulled over for suspicion of DUI several times when performing services at bars (fixing POS systems mainly). Apparently simply pulling out of a bar parking lot is enough probable cause in some officers' minds. Those stops never got any further than my explanation that I was working there, not drinking there. It's still annoying, though. It makes a mockery of the whole concept of probable cause.

I feel the same way about DUI roadblocks. I cooperate because it's the path of least resistance, but the idea that the police can block entire roads and cause traffic jams that stretch for miles simply because they suspect that there exists the possibility that some as-yet unidentified person might have been drinking irks me.

Rich
Click to expand...

Humor goes a long way on a traffic stop, on both sides of the coin.

Many years ago when I was working the graveyard shift we would have several bars in our area that produced a lot of customers. It seemed like if we didn't catch them right away, they'd always get down the road and crash, usually resulting in injuries or property damage. If trying to catch bird shot coming out the end of a shotgun, it's more effective to put your hand closer to the barrel.

In CA our vehicle code has over 40,000 sections. Believe me, if I want to develop probable cause to legally pull over a car, it's not difficult.

Checkpoints are usually controversial. My agency has policy that stated the max wait time in traffic is 3 minutes. If traffic backs up we skip cars to get the traffic flowing. The power of check points is not in the number of arrests made, but rather in their deterrent effect.


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