How to handle a stop for suspected DUI?

[poadeleted20]

Since you walked away without a ticket, no less an arrest for DUI, it sounds like you handled it just fine, but in future you should probably not draw attention to yourself by ripping down the onramp at midnight.

 

[ron22]

In fact the purpose of an on ramp is to accelerate to freeway speed. Would be pretty hard if cars drove onto the freeway at 30 mph. Other cars would have to slam on the brakes.

What are you talking about I see people try and merge doing 30 all the time.

 

[poadeleted21]

What are you talking about I see people try and merge doing 30 all the time.

Every ****ing day. It's like they think it's the same thing as an off ramp or there's an implied yield sign or something.

 

[frcabot]

I don't know what state it is but it's not any of the ones around here (or California). Now the officer might not have sufficient evidence to charge a driver without the results over the per se limit, but a .07 coupled with adverse results from the field sobriety tests, etc... can certainly result in a conviction just about anywhere.

I was in GDC in Fairfax County and watched a case with no BAC being tried. It ended up being tossed but it took a concerted effort on the defendant's attorney to challenge all the evidence presented. Frankly, I was not sure how the judge was going to rule on that one, I could have seen it going either way.

Agreed. The law in California is that it's unlawful for a person "who is under the influence of any alcoholic beverage to drive a vehicle." V.C. 23152(a). It is ALSO unlawful "for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." V.C. 23152(b). The latter is known as a per se violation, i.e. the law implies that you're impaired if you have >0.08, but you could still be impaired even at a lower limit.
California cops and DAs will sometimes still charge people under VC 23152(a) if their BAC is 0.05 to 0.08, but it's much more difficult for the DA to win such a case so most such cases are dismissed. The test is whether you were impaired. DAs in California often have experts testify that a person can be impaired at 0.05. Combined with often factors based on testimony from the cop, such as erratic driving, slurred speech, smelling alcohol on breath, failed sobriety test (again, you should refuse to do an FST, the DA can't say that your refusal to do an FST is evidence of impairment), you can be convicted of DUI even if below 0.08 when you blow the breathalyzer or have blood drawn.

 

[geneseib]

Hi everyone,

So let me back up. Yes, I was at a restaurant and bar and had a drink or two.

I will never understand how a drink or two is worth all this.

 

[frcabot]

By the way, these are the jury instructions for DUI in California (varies by state). Essentially, this is what the prosecution must prove to obtain a conviction, and for a lawful arrest there must be probable cause that these elements are satisfied:

The defendant is charged [in Count ] with driving under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] [in violation of Vehicle Code section 23152(a)].
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a vehicle;
AND
2. When (he/she) drove, the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].

A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

[In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.]

[It is not a defense that the defendant was legally entitled to use the drug.]

[If the defendant was under the influence of (an alcoholic beverage/ [and/or] a drug), then it is not a defense that something else also impaired (his/her) ability to drive.]

The statute also creates a rebuttable presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05 percent. (People v. Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d 502].) Depending on the facts of the case, the defendant may be entitled to a pinpoint instruction on this presumption. It is not error to refuse an instruction on this presumption if the prosecution’s theory is that the defendant was under the combined influence of drugs and alcohol. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [32
Cal.Rptr.2d 442].)

Give the bracketed sentence stating that “it is not a defense that something else also impaired (his/her) ability to drive” if there is evidence of an additional source of impairment such as an epileptic seizure, inattention, or falling asleep.

Here's also a jury instruction related to refusal to take a chemical test (NOTE, not refusal to submit to a field sobriety test):

2130. Refusal—Consciousness of Guilt (Veh. Code, § 23612)
The law requires that any driver who has been [lawfully] arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence.

If the defendant refused to submit to such a test after a peace officer asked (him/her) to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant refused to submit to such a test, it is up to you to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself.

___

Refusal to submit is also an enhancement to DUI:

If you find the defendant guilty of (causing injury while driving under the influence/ [or] [the lesser offense of] driving under the influence), you must then decide whether the People have proved the additional allegation that the defendant willfully refused to (submit to/ [or] complete) a chemical test to determine ((his/her) blood alcohol content/ [or] whether (he/she) had consumed a drug).

To prove this allegation, the People must prove that:

1. A peace officer asked the defendant to submit to a chemical test to determine ((his/her) blood alcohol content/ [or] whether (he/ she) had consumed a drug);

2. The peace officer fully advised the defendant of the requirement
to submit to a test and the consequences of not submitting to a test;

[AND]

3. The defendant willfully refused to (submit to a test/ [or] to complete the test)(./

[AND
4. The peace officer lawfully arrested the defendant and had reasonable cause to believe that defendant was driving a motor vehicle in violation of Vehicle Code section 23140, 23152, or 23153.]

To have fully advised the defendant, the peace officer must have told (him/her) all of the following information:
1. (He/She) may choose a blood(,/ or) breath[, or urine] test; [if (he/she) completes a breath test, (he/she) may also be required to submit to a blood [or urine] test to determine if (he/she) had consumed a drug;] [if only one test is available, (he/she) must complete the test available;] [if (he/she) is not able to complete the test chosen, (he/she) must submit to (the other/another) test;]

2. (He/She) does not have the right to have an attorney present before saying whether (he/she) will submit to a test, before deciding which test to take, or during administration of a test;

3. If (he/she) refuses to submit to a test, the refusal may be used against (him/her) in court;

4. Failure to submit to or complete a test will result in a fine and mandatory imprisonment if (he/she) is convicted of driving under the influence or with a blood alcohol level of 0.08 percent or more;

AND

5. Failure to submit to or complete a test will result in suspension of (his/her) driving privilege for one year or revocation of (his/her) driving privilege for two or three years.

The People have the burden of proving beyond a reasonable doubt that the defendant willfully refused to (submit to/ [or] complete) a chemical test to determine ((his/her) blood alcohol content/ [or] whether (he/she) had consumed a drug). If the People have not met this burden, you must find this allegation has not been proved.

 

[frcabot]

Also, here are the presumptions in California (VC 23610):

(1) If there was at that time less than 0.05 percent, by weight, of alcohol in the person's blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense. [Note that this is only a presumption, you can technically be convicted of a DUI with a 0.00 (or drugs), but I can't imagine how a jury would unanimously agree that someone who blew a 0.00 or 0.04 would be guilty, beyond a reasonable doubt, of driving under the influence of alcohol.]

(2) If there was at that time 0.05 percent or more but less than 0.08 percent, by weight, of alcohol in the person's blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.

(3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person's blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense. [But again, remember that there is a per se violation for 0.08 or greater, so this section really doesn't even apply]

 

[paflyer]

NEVER take the FST. NEVER speak to the officer about anything.

Greet them politely and tell them you do not answer investigatory questions. Do not roll down your window when you hand them your DL.

At that point they have you for speeding. No smell. No slurred speech. No admission of drinking. No alcohol on the breath, no smell in the car.

Will you get pulled out of the car? You bet. Get out. Look down [many cops put their leg in your way so you stumble getting out of the car and then they can testify you stumbled. . .. ]

Keep your mouth shut. Don't answer questions. Refuse the FST. Invoke your Fifth Amendment right AGAIN.

Now, you had no stumbling. No slurring of speech. No odor of alcohol [hopefully] and you did not show evidence of intoxication on the FST because you refused it. What are the grounds for arrest again?

Most states require an arrest before you are required to blow.

As for the OP here - what is there to report? Did you get a ticket? Did you get arrested?

So what is there to report on the medical application that you are asking about?

My understanding is that you "agree" when you sign your license to do it or they can and probably will suspend it. At least in PA and NY.

 

[frcabot]

My understanding is that you "agree" when you sign your license to do it or they can and probably will suspend it. At least in PA and NY.

I am not aware of a state that requires drivers to submit to FSTs. Most states require drivers to submit to blood/breath/urine tests if police suspects DUI.

 

[frcabot]

They don't need a warrant for a chemical test in the State of Nebraska. Once again, you need to know your state laws. The best way to proceed varies dramatically from state to state.

If they have enough cause to have you do a field sobriety test they have enough cause to require you take a chemical test, in Nebraska.

There's a difference between implied consent and forcing after refusal. I would be very surprised if the police are able to strap you down against your will and draw your blood without a warrant if you refuse consent in ANY state. Implied consent usually means that you will automatically lose your license if you refuse and/or your refusal can be used as evidence against you at your trial.

 

[Doggtyred]

Hi everyone,

First post here so I apologize if this is in the incorrect section or if it has been answered before. Last night I was pulled over for suspected DUI. This happened in Dallas, TX if that is useful information. I'm a recreational pilot so losing my ticket would not be a career ending event but would have sucked big time nevertheless. It all ended happily, but I was doing some reading today on various advice on what to do and not to do and it turns out I went completely against the advice out there. So in case this ever happens again I want to make sure I do what is appropriate.

So let me back up. Yes, I was at a restaurant and bar and had a drink or two. When I left at about midnight the cop says he followed me to the highway onramp and that I drew attention to myself with a high acceleration down the onramp onto the highway. I always do that unfortunately just a habit of mine. I then merged with traffic and was going at the same speed as everyone else when a few minutes later the lights lit up behind me. I took the next offramp and found a safe place to stop then had my license and insurance all ready for him with the window open before he got to my door.

The officer started off by saying he pulled me over for speeding. He was leaning in quite close I think trying to get a good whiff of whatever I had going on in the car. I was very polite and admitted I didn't even know how fast I was going and that I was just following the traffic and I could very well have been speeding. He asked some sarcastic question about whether my speedometer was broken and I just said no sorry I just wasn't paying attention. He then asked me if I'd been drinking. All the internet based advice today I saw says to decline to answer any further questions. I did not feel intoxicated or drunk but of course didn't know for sure. I went ahead and told him yes I've been drinking. He asked how many, how long, where I was coming from, etc. I answered all these questions as politely as I could. He then said he was going to do a field sobriety test. I agreed to do it (again the advice out there is to not do this) but was thinking that if he went any further like wanting to do a breathalyzer test or more that I would decline. He waved a blue light in my eyes and told me to track it without moving my head which I did.

I was convinced he was going to take it further, but like I said earlier it ended happily. His tone totally changed and he explained to me that he was just looking for people who are drinking in excess and then driving and that in future I should probably not draw attention to myself by ripping down the onramp at midnight. I didn't get a speeding ticket.

So in retrospect how should I have handled this? If I had followed the advice online I may very well have got myself arrested. He was quite aggressive when he pulled me over. If I had shut up and refused to talk I think there is a good chance I would have been taking a ride in the back of his car.

I hope this never happens again but some advice from any knowledgeable individuals would be appreciated.

Getting taken in for a breathalyzer that you subsequently pass is not "getting arrested". You were detained for further questioning/investigation.

Keep in mind.. refusing to perform a field sobriety test or refusing to provide a specimen for blood or breathalyzer analysis results in a civil proceeding that will in all but extreme cases result in administrative suspension of your drivers license in Texas.

And in that case you would likely BE arrested and charged with DWI, just not have the conclusive evidence that the DA likes to see... that will trip you up on the "have you ever...." question for your FAA medical. Then without a breathalyzer result below what.. 0.15% the FAA will not look kindly on that.

Getting pulled over, blowing low, and getting released is a non-event. I guarantee you if the officer had seen nystagmus in your eyes when he had you follow them with his light, you'd have failed if you'd blown.

Glad it worked out.

Keep in mind, most DWI attorneys will tell you if you REALLY ARE drunk, Sit down, shut up, dont test and dont blow. That will be a bad outcome for your FAA medical, but in theory the 6 month administrative suspension is more palatable than the conviction, fine, points on your DL (surcharges) AND a 6 month criminal suspension of your DL (in Texas).

 

[frcabot]

They don't need a warrant for a chemical test in the State of Nebraska. Once again, you need to know your state laws. The best way to proceed varies dramatically from state to state.

If they have enough cause to have you do a field sobriety test they have enough cause to require you take a chemical test, in Nebraska.

In fact I know for a fact you are wrong because SCOTUS has said that in nearly every case (i.e. not involving an honest to god situation where getting a warrant in time is not possible, which is a case-by-case analysis under totality of the circumstances, etc.) that a police officer must obtain a warrant before drawing blood without actual (not just implied) consent. See Missouri v. McNeely. http://en.wikipedia.org/wiki/Missouri_v._McNeely

But again, there are often other consequences for refusing a blood/breathalyzer/urine test including automatic suspension or revocation of license, and use of the evidence of refusal in a criminal case.

 

[poadeleted20]

There's a difference between implied consent and forcing after refusal. I would be very surprised if the police are able to strap you down against your will and draw your blood without a warrant if you refuse consent in ANY state.

That may be true under state criminal law, but under Federal aviation law (administrative, not criminal), refusal to submit is considered the same as having been found with over 0.15% BAC, and that's about the worst situation for a pilot to face with regard to FAA action. Further, it doesn't matter in this Federal context what the law is in your state regarding implied consent. Before you refuse to submit, consider the potential effect on your pilot and medical certificates, as well as your employment as a pilot. Or better yet, think about that before you drink and drive.

 

[frcabot]

They don't need a warrant for a chemical test in the State of Nebraska. Once again, you need to know your state laws. The best way to proceed varies dramatically from state to state.

If they have enough cause to have you do a field sobriety test they have enough cause to require you take a chemical test, in Nebraska.

Also Nebraska law specifically states that if a person arrested for DUI "refuses to submit to the chemical test of blood, breath, or urine . . . the test SHALL NOT BE GIVEN except as provided . . . for the purpose of medical treatment". See Nebraska Revised Statute 60-498.01(2).

 

[frcabot]

That may be true under state criminal law, but under Federal aviation law (administrative, not criminal), refusal to submit is considered the same as having been found with over 0.15% BAC, and that's about the worst situation for a pilot to face with regard to FAA action. Further, it doesn't matter in this Federal context what the law is in your state regarding implied consent. Before you refuse to submit, consider the potential effect on your pilot and medical certificates, as well as your employment as a pilot. Or better yet, think about that before you drink and drive.

Revocation of pilot license = better than being convicted of DUI and potentially going to prison, which would probably also result in revocation of license and termination of employment.

 

[poadeleted20]

Revocation of pilot license = better than being convicted of DUI and potentially going to prison, which would probably also result in revocation of license and termination of employment.

If you don't drive drunk, you don't have to worry about any of that. Further, if you know you're not drunk, refusing to submit is, from an aviation standpoint, a really bad idea because you'll be treated by the FAA as though you were blind drunk. I'll leave it to the attorneys who work this field on the criminal/driving side to advise whether or not it's a good or bad idea to submit otherwise, but as far as I'm concerned, if you decide to drive drunk, you deserve what you get, and I hope you get it.

 

[frcabot]

If you don't drive drunk, you don't have to worry about any of that. Further, if you know you're not drunk, refusing to submit is, from an aviation standpoint, a really bad idea because you'll be treated by the FAA as though you were blind drunk. I'll leave it to the attorneys who work this field on the criminal/driving side to advise whether or not it's a good or bad idea to submit otherwise, but as far as I'm concerned, if you decide to drive drunk, you deserve what you get, and I hope you get it.

If you know you're not drunk refusing to submit from any standpoint is a really bad idea, because you will lose your driving license and you may be charged anyways. However, if you ARE drunk and especially if you think there's a good chance you're over 0.08, it's better not to submit, as over 0.08 removes any doubt that you were, in fact, driving illegally.

Agree that if you drive drunk you deserve what you get, etc.

 

[Tarheelpilot]

In North Carolina if you're pulled over and cop says he suspects you of DWI and you know you are not or right at edge I would recommend asking for a pre-arrest Breath test. In NC the intoxilizer at the office is calibrated and court admissible. Roadside breath tests are not. If you request the pre arrest test Mr. Police man will drive you down to the machine test you and if below the limit no arrest record.

 

[3393RP]

Understand there is NO such thing as a legal limit. .08 is only the per se limit where the police don't actually have to show evidence of intoxication. You are presumed to be intoxicated at that point. You CAN be convicted for DUI at lower levels.
.

Not in Texas.

I don't drink, but some of the comments here are ridiculous. If someone goes out to dinner and has two drinks in three hours, they aren't going to be legally intoxicated.

There's a legal BAC limit, if you don't cross it you aren't breaking the law.

 

[frcabot]

Not in Texas.

I don't drink, but some of the comments here are ridiculous. If someone goes out to dinner and has two drinks in three hours, they aren't going to be legally intoxicated.

There's a legal BAC limit, if you don't cross it you aren't breaking the law.

I don't think that's correct. Look at Texas Penal Code Section 49.01(2): Intoxicated means "(A) not having the normal use of mental or physical faculties by reason of introduction of alcohol . . . or (B) having an alcohol concentration of 0.08 or more."

The DUI law appears to cover both 0.08 (as per se violation) or below 0.08 if still intoxicated as defined by not having normal use of mental or physical faculties. See also Texas Penal Code 49.04.

See also jury instruction:
"MEMBERS OF THE JURY: The defendant, X, stands charged with the offense of driving while intoxicated alleged to have been committed on or about ____ in ____ County, Texas. To this charge, the defendant has pleaded not guilty.

1. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.

2. Intoxicated means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, OR having an alcohol concentration of 0.08 or more.

3. Now, if you find from the evidence beyond a reasonable doubt that on or about ____ in ____ County, Texas, the defendant, X, [did not have the normal use of mental or physical faculties by reason of the introduction of alcohol into his body] [OR had an alcohol concentration of 0.08 or more] while operating a motor vehicle in a public place, then you will find the defendant guilty as of the offense of driving while intoxicated as charged in the information.

Also:

You are further instructed that if a defendant indulges in the use of drugs, [even legal prescription drugs], to such an extent that he thereby makes himself more susceptible to the influence of intoxicating liquor than he otherwise would have been, and by reason thereof becomes intoxicated from the recent use of intoxicating liquor, he would be in the same position as though his intoxication was produced by the use of intoxicating liquor alone.

 

[Doggtyred]

Not in Texas.

I don't drink, but some of the comments here are ridiculous. If someone goes out to dinner and has two drinks in three hours, they aren't going to be legally intoxicated.

There's a legal BAC limit, if you don't cross it you aren't breaking the law.

Keep in mind there is also the charge of "public intoxication" in Texas.. its not a moving violation.. but it also does not require a breath test.. Its purely officer discretion... his word against yours...

Its an arrest. Its on your record. And he's not required to ask you to blow, nor allow you to if you demand it.

Its commonly seen as a "I ****ed off the police" charge, and I'd hate to see how that could come into play when you have to report it..

 

[frcabot]

Not in Texas.

I don't drink, but some of the comments here are ridiculous. If someone goes out to dinner and has two drinks in three hours, they aren't going to be legally intoxicated.

There's a legal BAC limit, if you don't cross it you aren't breaking the law.

If you don't believe me, see also http://texas.drivinguniversity.com/dwi-dui/dwi-laws/

In Texas, it's illegal to operate a motor vehicle while you are intoxicated. To the police and prosecutors, "intoxicated" means one of two things:

1) A blood alcohol concentration (BAC) of .08 or greater
2) Not having normal of use of your mental or physical faculties due to the influence of alcohol, a controlled substance, a prescription drug, or any other substance. (Texas State Penal Code, § 49.0)

What does this mean to you as a driver? First of all, it means that there is no blood alcohol concentration under which it is guaranteed to be safe and legal to drive. Even if your BAC is under .08, you could still be charged and convicted of DWI if a police officer stops you and believes that your reflexes and/or judgment are impaired. Secondly, it means that even if you have a high enough alcohol tolerance to retain control of your mental and physical faculties at a BAC of .08 or higher, it's still illegal for you to drive in that condition.

http://www.hinesrancholub.com/Artic...-in-Texas-even-if-under-the-legal-limit.shtml

Although it may surprise many Texas motorists, a driver does not actually have to have a blood alcohol concentration (BAC) above the legal limit in order to be charged with driving while intoxicated (DWI) in Texas. Indeed, while a driver is automatically considered "intoxicated" under Texas law if he or she has a BAC of at least 0.08 percent, DWI charges are also possible if a driver does not have the "normal use of mental or physical faculties" due to alcohol consumption - regardless of BAC levels.
In fact, police have been known to charge drivers with DWIs even if their BACs are well below 0.08 percent. For instance, just last year an Austin man was arrested for a DWI even though he registered the lowest possible reading of 0.00 percent on his breath test. And, while this particular arrest sounds almost unbelievable, that didn't save the man from having to spend the night in jail or shorten his year long fight to get the charges dropped, which just recently occurred.
[Note: this probably involved drugs or other evidence of impairment though.]

 

[flyingron]

There's a difference between implied consent and forcing after refusal. I would be very surprised if the police are able to strap you down against your will and draw your blood without a warrant if you refuse consent in ANY state. Implied consent usually means that you will automatically lose your license if you refuse and/or your refusal can be used as evidence against you at your trial.

There was actually a case on this last year (Missouri v. McNeely). Implied consent or even arguing exigent circumstances were held to NOT be justification for a warrantless blood draw.

Some localities have duty magistrates/judges that can rapidly issue warrants for the draw in the case of a refusal, so you're taking your chances on the refusal.

Again, as far as pilots go:

YOU'VE ALREADY BEEN ARRESTED AT THIS POINT: This means you have a mandatory report on your medical. You've got 'splainin' to do even if you beat the DUI charge.

IN THE PRESENCE OF A REFUSAL, CAMI will presume that you are a high BAC or otherwise alcohol tolerant and hence they will make your conditions even more hell. Dig up the threads here or on the red board where Doc Bruce explains the differentiation.

 

[steam wright]

Personally I think that is the proper way to get into a freeway. I do it every time.

I was driving a BMW M6 with 575 HP so it did probably appear fairly dramatic to the cop. But yes, this is required for every freeway entrance. I'm just glad I didn't have my 650 HP toy that evening For sure I would have got a ticket. My biggest takeaway is to adjust my behavior now at that time when the cops are looking for drunk drivers.

Really great info on this thread.

 

[Scott@KTYR]

Steam Wright - Welcome and thanks for the post.

 

[comanchepilot]

someone claimed that in Texas you can be cited for refusing the FST? Law please?

My understanding is that Texas is the same as just about everywhere else.

You can refuse and you need to refuse correctly. In Texas they will use the refusal and argue it as evidence of guilt - UNLESS you refuse on the basis of your Fifth Amendment Right of self-incrimination - then it cannot be used or argued as evidence of guilt - and it cannot even be stated by the prosecution or the officer.

How you do things today is as important as what you do . . .

 

[N747JB]

Georgia is implied consent, you drive in GA you are agreeing to either breath or blood test if "suspected" of DUI. Refusing to submit to one or the other is an automatic DUI, or so I am told. Personally, I quit drinking 4 years ago and don't worry too much about my getting a DUI anymore. At one time it was more of a concern.

 

[Sac Arrow]

I will never understand how a drink or two is worth all this.

I agree. The legislature needs to focus on better things than turning us in to a fascist nanny state.

 

[frcabot]

Georgia is implied consent, you drive in GA you are agreeing to either breath or blood test if "suspected" of DUI. Refusing to submit to one or the other is an automatic DUI, or so I am told. Personally, I quit drinking 4 years ago and don't worry too much about my getting a DUI anymore. At one time it was more of a concern.

There is so much misinformation in this thread, it is astounding. There is no such thing as an "automatic DUI." A DUI conviction is a criminal conviction that requires a jury trial. Refusal to submit to a blood test or breathalyzer test = automatic suspension of the drivers license and the evidence of the refusal can be used against you in court.
http://dui.drivinglaws.org/resources/dui-refusal-blood-breath-urine-test/georgia.htm

 

[Palmpilot]

Thanks for setting the record straight.

 

[JimNtexas]

Here in Texas we have what are called 'no refusal days'. On those days there is a judge and a medic at the police station. If a driver refuses a test, they take him to the judge, get a warrant, and then the driver is forced to give blood.

This is expensive, so they only do this on special occasions. For example, here in Austin last weekend was 'no refusal' because the Republic of Texas motorcycle rally was in town, and they wanted to keep the Harley Davidson body count down.

 

[frcabot]

Here in Texas we have what are called 'no refusal days'. On those days there is a judge and a medic at the police station. If a driver refuses a test, they take him to the judge, get a warrant, and then the driver is forced to give blood.

This is expensive, so they only do this on special occasions. For example, here in Austin last weekend was 'no refusal' because the Republic of Texas motorcycle rally was in town, and they wanted to keep the Harley Davidson body count down.

That's messed up but if a judge says there's probable cause to issue a warrant, then it's legal to strap you down and draw the blood.

 

[frcabot]

Here in Texas we have what are called 'no refusal days'. On those days there is a judge and a medic at the police station. If a driver refuses a test, they take him to the judge, get a warrant, and then the driver is forced to give blood.

This is expensive, so they only do this on special occasions. For example, here in Austin last weekend was 'no refusal' because the Republic of Texas motorcycle rally was in town, and they wanted to keep the Harley Davidson body count down.

What's even more insidious, and this is true, is that judges basically never (or extremely rarely) turn down warrants. You have no right to be heard in the warrant process, you have no right to appeal, you have no right to sue the judge if the judge isn't doing his/her job properly, etc.

This is a very interesting article about these "no refusal nights," which I had never heard of before today.

http://www.thefix.com/content/no-refusal-night-austin

 

[N801BH]

Interesting topic..... I am NOT an expert in DUI's/ DWI's as I don't drink and drive.... But

What I "think" the laws are here are basically.....

You can get pulled over for any reason.

LEO's can ask for a FST at any time

If you say no, they call the judge and get a warrant to draw blood.

One case is making it's way through the court system now to uphold this concept..

http://trib.com/news/local/crime-an...cle_23d1fded-9584-5771-88b3-c2b19d1a8297.html

If you drink too much and get in a vehicle to sleep it off, the LEO's can and will arrest you for a DUI... Even if the motor was never started..

Bicyclists are arrested for DUI's...

You don't need to blow a .08 for a DWI = Driving While Intoxicated... People have been arrested for .02 and charged with DUI = Driving Under the Influence...

YMMV.....

 

[flyingron]

What's even more insidious, and this is true, is that judges basically never (or extremely rarely) turn down warrants. You have no right to be heard in the warrant process, you have no right to appeal, you have no right to sue the judge if the judge isn't doing his/her job properly, etc.

What makes you think yo have or should have a right to contest a warrant. If the warrant was defective in some aspect, you can challenge it later.

 

[flyingron]

You can get pulled over for any reason.

No, it takes an articulable suspicion that a violation has been committed. Usually it's not hard to do this. I've been stopped for everything from minor equipment violations to allegedly weaving.

LEO's can ask for a FST at any time

Once you're stopped they can ask you. They can't just ask you.

If you say no, they call the judge and get a warrant to draw blood.

You missed a step. At that point they can arrest you if they have probable cause to believe you have committed a crime. In that case you've already given implied consent for a chemical test. If you refuse to then submit to the chemical test, then they can get a judge to issue a warrant.

One case is making it's way through the court system now to uphold this concept..

All that case involves is whether they can phone in a request a warrant from a judge. The fact that they need a warrant was decided nationally last year. This case only matters to Wyoming. In other states, (like the afore mentioned Texas or in Pennsylvania) it's not uncommon to have a judge actually standing by IN PERSON to handle warrants. In Pennsylvania magistrates in various jurisdictions take turns covering the after hours stuff for warrants, etc...

If you drink too much and get in a vehicle to sleep it off, the LEO's can and will arrest you for a DUI... Even if the motor was never started..

Yes, in most states, just being in control of a motor vehicle, even if it is not running is illegal if you are intoxicated.

Bicyclists are arrested for DUI's...

That varies with the states.

You don't need to blow a .08 for a DWI = Driving While Intoxicated... People have been arrested for .02 and charged with DUI = Driving Under the Influence...

That again is a state issue. Not all states make a distinction between DUI and DWI. For example, California it's the same charge if you violate the per se limit (.08) or you are under the influence at any amount of alcohol.

 

[frcabot]

Interesting topic..... I am NOT an expert in DUI's/ DWI's as I don't drink and drive.... But

What I "think" the laws are here are basically.....

You can get pulled over for any reason. No, a police officer needs reasonable suspicion that you are committing a crime or violation to pull you over.

LEO's can ask for a FST at any time. LEOs can ask for anything they want but a request is typically just voluntary. I am not aware of any law stating that an FST is mandatory. If a police officer asks you for an FST they probably don't have enough evidence to arrest you on the spot or are looking for additional evidence to bolster charges against you. If you fail the FST, that could give them probable cause to arrest you if they don't already have it, especially if there are other factors (e.g., you've admitted to drinking, they smell alcohol on your breath, they see open containers of alcohol in the vehicle (typically a violation in and of itself), your speech is slurred or your eyes are wandering, etc.)

If you say no, they call the judge and get a warrant to draw blood. No, an FST is voluntary. If you say no and they don't have probable cause to arrest you, you can ask if you are free to go and the answer will either be yes, or "no, you're under arrest for x." If they have probable cause believe you are guilty of a DUI/DWI, they will ask you to consent to a breathalyzer or blood test or urine test. If you say no, they will typically try to obtain a warrant. Procedures vary by state and police department.

One case is making it's way through the court system now to uphold this concept..

http://trib.com/news/local/crime-an...cle_23d1fded-9584-5771-88b3-c2b19d1a8297.html

If you drink too much and get in a vehicle to sleep it off, the LEO's can and will arrest you for a DUI... Even if the motor was never started.. This depends on the law. The laws I am aware of state that you have to be operating or driving a motor vehicle (or just vehicle). If you are merely sleeping in your car, you are not operating or driving a motor vehicle, so there would be no probable cause that you are violating the law and each of the elements of the law.

Bicyclists are arrested for DUI's... It depends how DUI/DWI is defined. If it's defined as motor vehicle, then no. But there may be other applicable laws. If it's simply defined as "vehicle," then yes, a bicycle is a vehicle.

You don't need to blow a .08 for a DWI = Driving While Intoxicated... People have been arrested for .02 and charged with DUI = Driving Under the Influence... Yes. Depends on how DUI/DWI is defined in each state. But DUI / DWI are typically used interchangeably.

YMMV.....

See bolded text above.

 

[frcabot]

No, it takes an articulable suspicion that a violation has been committed. Usually it's not hard to do this. I've been stopped for everything from minor equipment violations to allegedly weaving.

Once you're stopped they can ask you. They can't just ask you.

You missed a step. At that point they can arrest you if they have probable cause to believe you have committed a crime. In that case you've already given implied consent for a chemical test. If you refuse to then submit to the chemical test, then they can get a judge to issue a warrant.

All that case involves is whether they can phone in a request a warrant from a judge. The fact that they need a warrant was decided nationally last year. This case only matters to Wyoming. In other states, (like the afore mentioned Texas or in Pennsylvania) it's not uncommon to have a judge actually standing by IN PERSON to handle warrants. In Pennsylvania magistrates in various jurisdictions take turns covering the after hours stuff for warrants, etc...

Yes, in most states, just being in control of a motor vehicle, even if it is not running is illegal if you are intoxicated.

That varies with the states.

That again is a state issue. Not all states make a distinction between DUI and DWI. For example, California it's the same charge if you violate the per se limit (.08) or you are under the influence at any amount of alcohol.

The only thing I would amend here is that the 2013 SCOTUS case (McNeely) left a pretty substantial gap in terms of case-by-case analysis where exigent circumstances exist (i.e., judge is not available and there will be dissipation of evidence through passage of time, etc.). It remains to be seen how that decision will be implemented.

 

[frcabot]

What makes you think yo have or should have a right to contest a warrant. If the warrant was defective in some aspect, you can challenge it later.

Drawing someone's blood against their will is a pretty big invasion of privacy.

 

[N801BH]

Drawing someone's blood against their will is a pretty big invasion of privacy.

Welcome to 2014......