Refusing a sobriety test

[ausrere]

Videos of DUI stops might be some of the funniest things to watch.

I learned that from watching Cops, of course!

The last DWI arrest I made before trading in patrol car for desk, was a conviction based solely on video tape evidence. The guy refused all field sobriety tests, refused intoxilyzer test, and refused to answer even the simplest of booking questions. But, video of his driving (and it wasn't just one "across the centerline violation" either) and of his ranting and ravings on the way to jail (our dept left video running through the whole trip to jail), the jury was out a grand total of 5 minutes. I don't think it would have taken that long except the jury probably took a few minutes to try to stop laughing at the guys comment on tape that "No <substitute another name for kitty cat> in a black robe would ever convict me of DWI". Drunks can be funny in a PITA sort of way.

 

[gkainz]

Nystagmus - you guys made me look that one up - thought it was a New York Deer Mouse (NY Stag Mus)

http://en.wikipedia.org/wiki/Nystagmus

and then I had to go look up saccadic movement - http://en.wikipedia.org/wiki/Saccadic_movement

better than Reader's Digest Vocab quiz!

 

[Obi Heed Kenobi]

..."No <substitute another name for kitty cat> in a black robe would ever convict him of DWI".

....

Did the judge have anything to say about that little comment?

The funniest DUI video that I've seen is actually a holding cell video - a guy was arrested on a DUI and brought down to the county jail. He was locked up in the holding cell, which has a 2-way window. He saw the arresting officer walk by, so he stood up on his chair, poked his head through the ceiling panels (yes, this is a very high-tech holding cell), and hocked a nice spitwad in the direction of the guy who arrested him.

Little did he know that spitting on a police or correctional officer while in a custodial institute is 2nd degree assault! I imagine you've got a similar provision down there....

 

[ausrere]

Did the judge have anything to say about that little comment?

I had been excused and was back in the witness room while they viewed the tape. From what they tell me, he just laughed.. I think more so because, according to the prosecutor, as soon as you heard the guy's voice on tape saying the words, he stood up in court and yelled, "She's lying!". I could hear the laughter from the other room.

He should have fired his defense attorney for ever letting the case get to court with that tape. The guy never once came down to the PD to view it, or ask for a copy of it, even though he had copies of multiple documents which described it's contents.

Little did he know that spitting on a police or correctional officer while in a custodial institute is 2nd degree assault! I imagine you've got a similar provision down there....

I've had drunks in the tank throw, spit or 'squirt' all sorts of bodily fluids in my (and other officer's) direction. I've had no problem adding assaulting a PO to a DWI charge. And all the tanks have cameras now days.

The absolute funniest DWI video I was ever a part of, was one where I had a very intoxicated individual stopped and in the middle of performing the Walk and Turn, when his equally, if not more so, drunk friend pulled over in front of the first guys car and proceeded to try to "help" his buddy pass the test. Two guys on tape at once, both trying to do the walk and turn and one leg stand while helping the other one out, and all the while claiming they were stone cold sober. It was amusing. Both agreed to intoxilyzer tests, and both were way over the legal limit. Never got summoned to court on those for some reason.

 

[SCCutler]

OK. I have to tell this.

I had a friend, criminal defense lawyer, to whom I had referred a client for assistance on a DUI charge.

He agreed to the breath test, blew a marginal number- not completely clean, but no slam-dunk either, and the "operating" of the motor vehicle had been doing donuts in a large and vacant parking lot. Not smart, but not as good as weaving on the road sort of stuff.

Defense guy asked me to come down w/ him while we viewed the holding-tank video and he counseled the client to make a deal.

Video was fine- client conducted himself very well, no weaving, slurring, belligerence. When officer came in to the room, reminded him (very professionally and properly) of his rights, and asked client if he was willing to talk about what he had been doing that evening, client says, "Well, my lawyer will probably kill me, but- sure! I'll talk to you!"

They proceeded to discuss what he'd had to drink that night, starting at dinner, proceeding to the hockey game and ending up at a jazz bar. I got drunk just listening, and it was agonizing.

Q: "Did you have anything to drink at the hockey game?"

A: "Just a couple of beers... 'course, they were those really huge ones they give you there!"

Q: "Are you drunk?"

A: "Naw... but I got a helluva buzz on!"

===========

Plea bargain, and no argument.

 

[DeeG]

By the way, I was going to mention this yesterday but ran out of time at the airline gate. In many states you may be guilty of DUI for operating vehicles that do not require a state driver's license such as a bicycle, a lawnmower, a horse, etc. How do you think the implied consent laws apply?

Well...... I have seen HBRUI (horsebackriding under the influence) and BUI (bicycling under the influence) arrests. And even though it isn't the same implied consent that is assumed when you are found unconscious and would want medical attention, nor could it be the same as when you sign for your license. However, here in WA, you'd get nailed for public intoxication. Not allowed to roam the streets when your hammered. It could also be considered a public safety issue. Forcing your pony to cross a busy road could not only kill the rider and the pony, what if a car/motorcycle/etc struck the horse? That could kill the driver.

 

[Henning]

Well...... I have seen HBRUI (horsebackriding under the influence) and BUI (bicycling under the influence) arrests. And even though it isn't the same implied consent that is assumed when you are found unconscious and would want medical attention, nor could it be the same as when you sign for your license. However, here in WA, you'd get nailed for public intoxication. Not allowed to roam the streets when your hammered. It could also be considered a public safety issue. Forcing your pony to cross a busy road could not only kill the rider and the pony, what if a car/motorcycle/etc struck the horse? That could kill the driver.

Now that's just plain wrong, that's why you take your horse when you're drinking, so (s)he can take you home while you nap on his/her back. Now of course my horse loved beer and bourbon, so he may have failed the breathalyzer....

Point 2... ever try to force a 900lb animal to do anything? Shoot... best you can manage is going in circles and having a buck out. Horses are actually pretty smart about traffic.

 

[markb5900]

Because cops have been known to plant evidence, that is why we have the right to refuse the search if they have no PC.If all cops were honest, no worries, but from what I have seen both here and abroad, I worry.

Then of course you have the court evidence of how those officers were convicted of misconduct?

If not, then this comment is nothing but internet crap and should be judged as such.

 

[markb5900]

Around the mid nineties, they started teaching cops to ask to search a person's car or their person whenever they stopped someone for something, no matter how minor. I always thought that it was a fishing trip, and it got cops to stopping cars for all kinds of minor infractions. Some cops really started carrying it too far. I always wondered why people would let cops look through their stuff, but they do, all the time. Allowing the cops to search your car, just because they stopped you for nothing, just encourages them to stop other people for next to nothing, and search their cars. I was a cop for twenty-nine years, and I have to tell you, that I wouldn't let the cops search my car, my house, or my person, without a warrant. If for no other reason than to keep then honest.

Please show one study. one bit of evidence to back up your claim.
I was a cop in the EIGHTIES and we would ask to search a persons car if there was suspicion of wrong doing.
I will say again, if you have nothing to hide what is the problem.
MAYBE just MAYBE the guy with the illegal gun is found and taken to jail before he robs your house or does worse to someone.

 

[markb5900]

I only picked a couple to respond to directly
But all this is PURE SPECULATION about what cops do and don't do should just be put aside.
If you haven't ridden in a squad car, 8 hours a day 5 days a week, then you really DON'T HAVE A CLUE as to what goes on.
We are all QUICK to come down on the media because they have no clue about how to fly a plane or report on it.
Isn't this the exact same thing, people coming down on a group in general and having no clue about what they REALLY do and HOW they REALLY do it.

 

[Maxmosbey]

Please show one study. one bit of evidence to back up your claim.
I was a cop in the EIGHTIES and we would ask to search a persons car if there was suspicion of wrong doing.
I will say again, if you have nothing to hide what is the problem.
MAYBE just MAYBE the guy with the illegal gun is found and taken to jail before he robs your house or does worse to someone.

OK, maybe you were doing it in the eighties. What ever. I'm not talking about your experience anyway, I'm talking about mine. I'm also not talking about suspicion of wrong doing, I'm talking about fishing. You can think what you want, but I don't like cops searching everyone's car for no reason other than they are fishing, and if a cop stopped me and asked to search my car, I would say no. If he thought that he could get a warrant to search it, that is fine. But I'm not going to let him do it without cause. That is my take on it. You are welcome to have a different take on it if you want.

 

[alaskaflyer]

OK, maybe you were doing it in the eighties. What ever. I'm not talking about your experience anyway, I'm talking about mine. I'm also not talking about suspicion of wrong doing, I'm talking about fishing. You can think what you want, but I don't like cops searching everyone's car for no reason other than they are fishing, and if a cop stopped me and asked to search my car, I would say no. If he thought that he could get a warrant to search it, that is fine. But I'm not going to let him do it without cause. That is my take on it. You are welcome to have a different take on it if you want.

Our job is fishing. Your job is to make sure you aren't a fish. That distills it down to its base issue. No one has a right to not have contact with police. You simply have a right against unreasonable searches and seizures and to not be a witness against yourself.

People in this society need to come to terms with the fact that even if you do everything right, you may have to face the police occasionally (this aside from the fact that as normal human beings we (each and every one of us) violate some law multiple times weekly without a second thought). If you don't know your rights (as you and most usually do) then you are a poor citizen. Many of those poor citizens who don't know their rights are also lawbreakers. Score one for the police and the rest of us, because the police will walk up one side of them and down the other, pushing and shoving at the edge of what is "legal" to catch them.

And Henning, the 4th Amendment was not designed to protect against an officer's misconduct, it was designed to prevent against a wider problem than that.

 

[Henning]

Then of course you have the court evidence of how those officers were convicted of misconduct?

If not, then this comment is nothing but internet crap and should be judged as such.

Bull ****, you can hold up the "Blue Wall" all you want. Here's just one instance.

http://www.inqnews.com/Article.php?id=801

I won't go into my personal experiences, but there are 5 people who were on the SDHP that were allowed to resign rather than be prosecuted after (illegally) boarding my boat one night.


Cops are as fallible as anyone else, I know cops who became cops so they could pull scams shielded by the law.

 

[Obi Heed Kenobi]

...

People in this society need to come to terms with the fact that even if you do everything right, you may have to face the police occasionally ....

Another thing that needs to be realized is that we don't live in some libertarian utopia. Our system recognizes that each of us has an interest in being as free as possible. Regardless, it also recognizes that we all have an interest an orderly society, as well.

And that's where the 4th Amendment comes in. The Fourth Amendment is a balance between our interest in freedom and our interest in order. It allows us a LOT of freedom from government interference, but it also gives us the capability to preserve order.

Personally, I like that idea. I may not always like how it's put into practice, but I think it's excellent that we have a system that allows liberties and preserves order.

 

[mikea]

Because cops have been known to plant evidence, that is why we have the right to refuse the search if they have no PC.If all cops were honest, no worries, but from what I have seen both here and abroad, I worry.

Please show one study. one bit of evidence to back up your claim.
...

Bruce can tell you a personal story about how if not for his companion being really on top of things when they were stopped he would never have been able to become a doctor.

 

[tlglenn]

When people mindlessly parrot the line, "If you have nothing to hide then you have nothing to fear" I just think about this:

A drug dog doing a routine sniff of cars at R.E. Lee High School in Staunton, Va., alerted near the car parked by student body president Sam Dungan, 17. Officials demanded he let them search the car but Dungan, the son of a defense attorney, called his dad instead. After all, it was his dad's car, since his own was broken down. His father, James Dungan, arrived at the school and consented to a search, since "I don't smoke marijuana, my wife doesn't smoke marijuana, and my son doesn't smoke marijuana," he told them. Bad idea: the search turned up a rusty Boy Scout knife and a bottle of cream liqueur, left in the car after a Christmas party. Good enough: Sam was suspended for 5 days for "possessing" a "weapon" and alcohol on campus. He also must attend alcohol counseling. (Waynesboro News Virginian)

 

[Pjsmith]

That is, IMHO, a bunch of internet-bred nonsense. Shame judges and juries buy into it. Often it comes down to competing expert witnesses and which one has the more expensive haircut.

Hmmm, never heard of that test

Internet bred nonsense? Perhaps you saw what I said without reading what I said.

(pause while you go back and re-read)

I would much rather have had my office get the conviction on those than lose the conviction, but that is the way it goes sometimes.

It is no use bemoaning that it often (read: almost always) comes down to dueling witnesses, whether expert or occurrence, when there is no video. That is the way the system is designed to work, no?

Haircuts win cases? There are always idealists who believe 'it shouldn't be that way'. But consider that a juror looking at two lawyers (or witnesses), one of whom has clearly paid great attention to how they look, and the other of whom might look like they rolled out of bed into a wrinkled corduroy blazer, is going to assume that the more put together lawyer(witness) is more right. Why? Because it is easier to believe that the meticulous lawyer(witness) is meticulous all the time, with the suit, the facts, the law, etc., rather than to believe the sloppy lawyer(witness) is only sloppy in his or her clothes and appearance, but is meticulous in the facts, the law, the analysis, etc.

You sound like you are in LE, so you know what I'm saying - and while I took license with the description of the one leg standing test, I don't think it was too far off the norm.

 

[Pjsmith]

As an attorney, you know that you can be convicted of DUI based on driving behavior so long as a scintilla of any one element of evidence exists that you were intoxicated by anything.

Just noticed this.....

I guess it's good that we all agree that the burden is not beyond a reasonable doubt

 

[gkainz]

Haircuts win cases? There are always idealists who believe 'it shouldn't be that way'. But consider that a juror looking at two lawyers (or witnesses), one of whom has clearly paid great attention to how they look, and the other of whom might look like they rolled out of bed into a wrinkled corduroy blazer, is going to assume that the more put together lawyer(witness) is more right. Why? Because it is easier to believe that the meticulous lawyer(witness) is meticulous all the time, with the suit, the facts, the law, etc., rather than to believe the sloppy lawyer(witness) is only sloppy in his or her clothes and appearance, but is meticulous in the facts, the law, the analysis, etc.

That's not the way it happens on "Columbo" !

 

[DeeG]

Now that's just plain wrong, that's why you take your horse when you're drinking, so (s)he can take you home while you nap on his/her back. Now of course my horse loved beer and bourbon, so he may have failed the breathalyzer....

Point 2... ever try to force a 900lb animal to do anything? Shoot... best you can manage is going in circles and having a buck out. Horses are actually pretty smart about traffic.

LOL!!!!! Yeah, I used to own a 17 hand, gazillion lb Quarter Horse nicknamed Snotzy (because of his sunny disposition). He was a bomb proof no nonsense horse, but when asked to do something he'd rather not, he'd turn his head around, look back at you with one of them, "You are a Franking IDIOT if you think I'm going to do that" looks and just stand there until I gave up.

Never tried giving him booze, but he really like Globe grapes, Hot Tamale candies and Diet Coke.

 

[alaskaflyer]

Just noticed this.....

I guess it's good that we all agree that the burden is not beyond a reasonable doubt

Yes, the burden is beyond a reasonable doubt, for conviction. But counselor, you know that you don't have to prove the probative value of each piece of evidence beyond a reasonable doubt

All I have to prove is that you were driving, and that you were intoxicated. That evidence may fit in a wheel barrow, a dump truck, or on one single sheet of paper with a crime lab letterhead on top or one single little pill found on a floorboard or a few bytes of digital data recording a defendant's voice.

 

[alaskaflyer]

Internet bred nonsense? Perhaps you saw what I said without reading what I said.

(pause while you go back and re-read)

I would much rather have had my office get the conviction on those than lose the conviction, but that is the way it goes sometimes.

It is no use bemoaning that it often (read: almost always) comes down to dueling witnesses, whether expert or occurrence, when there is no video. That is the way the system is designed to work, no?

Haircuts win cases? There are always idealists who believe 'it shouldn't be that way'. But consider that a juror looking at two lawyers (or witnesses), one of whom has clearly paid great attention to how they look, and the other of whom might look like they rolled out of bed into a wrinkled corduroy blazer, is going to assume that the more put together lawyer(witness) is more right. Why? Because it is easier to believe that the meticulous lawyer(witness) is meticulous all the time, with the suit, the facts, the law, etc., rather than to believe the sloppy lawyer(witness) is only sloppy in his or her clothes and appearance, but is meticulous in the facts, the law, the analysis, etc.

You sound like you are in LE, so you know what I'm saying - and while I took license with the description of the one leg standing test, I don't think it was too far off the norm.

I was talking about the machines, and the expert witnesses which are hired to obfuscate the issues surrounding them.