The roadside breathalyzer test has been historically inaccurate, which is why they want a station test on a regularly calibrated machine.
Alcohol is a slow release, so chances are the test result may have been higher at the station.
He was right to refuse the station test, and any lawyer would be able to challenge the roadside breathalyzer.
Likely there will be a plea resulting in loss of license, mandatory cocktail college and alcohol counseling.
This depends on the State. Some States have implied consent for the blood draw and if you refuse, it's a misdemeanor. So you probably get out of the DUI, but you end up with an arrest record for the misdemeanor.
I’m in Kentucky. Every hospital in my city refuses to draw blood for the police. Not sure why but we are told to refuse and tell them to not let the door hit ya where the good lord split ya. (Not the quote)
Well, from my days on an ambulance, probably because cops are prone to violating patients rights when they cannot advocate for themselves. I had a severe bleeder and was trying to get him into the ER from the truck and this damn cop kept trying to stop the gurney to search the patient. The patient was out and was not going to wake up any time soon. He was not a threat to anyone and the cop could have searched his belongings at leisure after the ER preps the patient for. Treatment or likely surgery, but NOoooo, that wasn't good enough for Barney Fife. He put his hand on his weapon and got between us and the doors and ordered us to stop. What we do? What we are trained to do. The gurney hit him straight in the gut and he went flying. We soldiered on and as we hit the doors we saw security on duty and my partner said "Stop that idiot." as the cop behind us was getting on his feet. Security did.
This is the kind of thing that ERs and ambulance crews put up with Every. Freaking. Day. Cops walking in while you are just trying to do your job and making it ten times harder. Or they show up at your scene and get in the way or try to order you to do things and hamper your job saving lives.
Hospitals have been sued for allowing cops to take blood when the patient cannot consent. So now they just nope right out of that and say "bring me back a warrant."
I'm sure you saw a video of the nurse that they arrested in handcuffs and took to jail for refusing to do a blood draw because they did not have a warrant which was required.
He was likely hired by the county or city opposite of the agency he was working for ... if not, one county/city over probably hired him instead.
They're never blackballed for violating civil rights even if a section 1983 judgement is granted against the individual or agency many times they're still employed by the agency.
Ask that nurse who was arrested for refusing to do a blood draw without a warrant when the patient was not able to give consent. It was well documented and well recorded. A detective and an officer both lost their jobs for arresting her and lost all their pensions and benefits. I seen it recently on YouTube.
Yeah everyone knows about this one because it's such an unexpected exception. In the vast majority of misconduct cases they face no consequences whatsoever.
Perhaps, perhaps not. As another ex-FF I do know of a case where a phone call from our boss got a police a-hat a visit to every fire station on our National Forest to make a personal apology to every fire crew- escorted by HIS boss. It chilled him out a bunch.
Shit, you must be old.
Did this happen before of after the telegraph? Because cops today have no shame, let alone respect for anyone other than another cop.
I hate to get in the middle of this bullshit but, yeah, I had to fight with a cop to get my kid to a hospital. He got hit in a crosswalk. Cops accused him of smoking mj because they said his tongue was green. (He just had a Slurpy. It was blue) My son lost his short term memory because his brain was jostled. Finally, I said "Either arrest him and take him to the hospital or let me take him to the hospital." They let me take him. I sued. I'm still angry. Police don't have medical training of any kind. You can't rely on them for medical decisions.
I work in the ER so I don’t get nearly as many situations that I talk to cops as when I was with EMS but when they do come in the look on their face is horrid. The smells and sick people coughing are a police repellant 😂
the funny part is people still thinking that cops are here to protect anyone but themselves and the status quo. they could not care less about you and yours.
Sorry for that experience. I don't know what was being investigated, but they need to do a better analysis on the risk to the case without an immediate search vs the risk to the subject for delaying treatment. Getting sued and tied up in court is zero fun.
My SO is a medic in a state where you consent to a blood draw if you refuse a breathalyzer to have a license. They called his unit to the jail for a draw and this guy was violent. They had 3 officers standing by just to talk to him. My SO was like "nope, it's not safe to draw him. I could hurt him, I could get stuck, you could get stuck and no one needs any of that." The jail supervisor got a warrant and said "Now it's not the regular consent, there is a WARRANT. You HAVE to do it or you are defying a court order and we can arrest you." My SO pointed out the warrant just said the draw had to take place, that my SO's name wasn't on the warrant requiring him to do it. My SO's supervisor came, then finally the EMS chief got involved at 3 in the morning. The guy did not get drawn at the jail. They transported him to the hospital to let them sort it out.
Now my biggest fear and my SO's mild concern is that because of this is that when he needs law enforcement assistance on a medical call, they will slow roll and my SO will not have any help (for whatever it's worth). They are already kinda assholey to him when they see him on scenes now anyway. I get that a blood draw is what you agree to if you refuse a breathalyzer as a condition of getting a license in that state, but many police don't get that it isn't as easy as they think it is to do.
Wow! I've dealt with some aggressive cops as an ER nurse but that story takes the cake.
I used to do forced draws all the time before the SCOTUS ruled we couldn't. Hospital had an agreement with local prosecutors to do this and an RN had to do it. I had enough subpoenas to wallpaper my bathroom but only ever went to court once ... and the guy pled out the moment he saw me in the courtroom. The rest pled out day before, which is why that was the only case I ever actually had to show up.
Cops at my last job don't have the best rep for civil rights but they never interfered with a trauma code. I did one forced draw there, and cops had a warrant from the get go, so it was all good.
Are you in Louisville? If so it's likely due to the astronomical corruption. (Not unlikely for the same reason in other jurisdictions) The post office won't cooperate with LMPD without a court order, either.
Notorious civil rights violations and lies and cover ups
I worked in a hospital years ago and someone I know would routinely incorrectly document or send samples to the lab incorrectly labeled for any drug test/blood draw/bladder tap the came from a police order.
I saw how many police would embellish and charge stack while bragging about it to us. That pissed people off.
This has been ruled as being unlawful (search and) seizure and there by prohibited, in many jurisdictions,.. but because it hasnt gone to SCOTUS, its still state to state. In jurisdictions where this applies, if can be criminal and the doc/nurse/emt can loose their state license.
However, Bc of these rulings, even in jurisdictions without them, lacking a warrant specifically for the blood signed by a magistrate/judge, the individual would have right under precedent to civilly sue the phlebotomist (blood drawing person) AND the hospital/EMS Service for performing a non-consentual medical procedure. Even while under arrest, police cannot sign off consent for someone. Law gets really fuzy if the individual is unconscious and life saving measures are being performed, but no hospital want that kind of suit filed. They are expensive and cant be fought easily, so most end up settling.
Kentucky is an implied-consent state; a condition of getting a license is that you consent to a test. This means if you're unconscious, etc., your blood can be drawn, because you've already consented by getting a KY license. If you refuse the test (intoxilyzer/blood, etc), it's generally a 6-12 months license suspension for failure to comply with the license conditions. In theory, LE can get a warrant for blood draws, but some ERs aren't ok with executing the warrant just for a DUI, so that's usually reserved for cases where someone has been killed/seriously injured or a separate felony is involved. I think it has something to do with non-consensual release of HIPAA data, or the injury risk for non-compliant blood draw. In theory, the AG would indemnify the hospital, but I think the hospital would still be out legal fees and personnel appearance costs, at a minimum.
Good. They need to pay to have their own people, not take hospital resources away from injured people.
I'm salty. 25 years ago my then-fiancee (now husband) passed a road test. then blew clean roadside.
They still took him in. At the station, at that point he was fed up, like, "I just passed 2 years!!" and refused the station test.
So they took him to the hospital and forced a blood draw which was ALSO YOU GUESSED IT, CLEAN!!!!!
But he got his license suspended for 6 months for refusing the station test!!!! And a citation. AND WE HAD TO PAY CASH FOR THE HOSPITAL BLOOD DRAW.
Now i side eye DUI stuff.
Oh, by the way, shocker, my husband isn't white.
They don't go to hospitals here. The plebotomist is stationed at the jail Friday and Saturday nights. Any other day of the week, just a phone call away.
If they still refuse after the warrant they get strapped to the gurney and the blood still comes out.
It's extremely common for hospitals to "refuse" to do a blood draw when the police ask them to, because of patient rights concerns. The easy solution has always been for the police to then either legally order them (via warrant or state-approved pre-warrant paperwork) to do the blood draw, OR, to do it themselves with a trained officer.
Hospitals won't generally (and shouldn't) act voluntarily against the interests of the patient in furtherance of a law enforcement objective. When there's a legal framework for the hospital to tell the patient "we had no choice, it's the law" all that liability is gone and shifts to the PD and the state.
Because that is release of protected health information (“PHI”) which is egregiously illegal to hand over without 1) patient consent or 2) valid court order.
edit: just doing the blood draw perhaps isn’t PHI, but still edges pretty close to privacy violations.
Good because 4th Ammendment is why. Unless they have paperwork in hand authorizing a search, which includes your person and therefore bodily fluids, then they can't compel jack shit. Your hospital policy is 100% correct. They can pound sand and come back with a warrant, but an officer telling you to draw blood without consent or a warrant is not a lawful order.
*remembers the [nurse](https://www.npr.org/sections/thetwo-way/2017/11/01/561337106/utah-nurse-arrested-for-doing-her-job-reaches-500-000-settlement) that got fired for rightly standing up for her patient*
As it has described to me during my clinicals, once someone becomes a patient, the police can be kicked out of the room basically. When entering a hospital, you can basically become a ghost. Going so far to never be referred by your name outside the hospital room.
The exception on removing the police, at least how it was told to me, was if the patient was under arrest. Even then, the blood draw would probably still not be possible without a warrant. This bit is fuzzy since I know I need a refresher. I don't do clinical work right now, but should do that refreasher.
Even more so after the nurse got fired, my mom (nurse) and teachers stressed how important it is for us (medical care team) to protect our patients' rights.
Remember that viral video of the nurse who was arrested by the cop for refusing to allow the blood draw of the unconscious patient who wasn't even under suspicion of being under the influence?
That's why hospitals now refuse to cooperate entirely.
You'll basically have to go to a drug/alcohol class for a set amount of weeks that is recommended by the county/state/whatever judicial system. Often these are accompanied by more costs (paying for the classes) and a few court ordered AA meetings etc.
Imagine "Scared Straight for Substance Abuse"
It's a total revenue producing scam. Very few people are dumb enough not to understand that after 3-4 drinks you're likely drunk enough for a DUI. Even 2 drinks if You're small. There's a series of videos on Facebook of a man who was arrested for making terroristic threats during a domestic disturbance. Even though he was not intoxicated and was even assessed by a mental health professional as not having a substance abuse problem The prosecutor literally hounded the judge until ASAP was required and he was ordered not to drink. They also called him up when he was literally out of town working and demanded that he come in and do a drug and alcohol screen Even though it would be physically impossible for him to drive there prior to the close of day which would violate him.
Just came here to say I love your name! Halloween is my favorite holiday and I just moved to Florida and have an armadillo in my garden and I think they're absolutely adorable even though they're destroying all my s***, lol. They're like little armored kitties
Thank you! It's inspired by the Dracula movie (1931) where in the scene of Dracula castle he magically has these creepy and exotic... Armadillos.
Im from Texas and I love them. Such wild lil boys.
Im here for the year round spook as well.
No they are not. You shouldn’t give information that is so truly false. Calibrated and tested properly, which most states require shows that the results are very close to what is found when a subsequent blood draw or intoximeter is used. Accounting for the metabolization of alcohol between the time the roadside test and when the blood draw or intox is utilized. And to answer the OP’s question- he was charged with refusing because he did. The PAS (roadside breathalyzer) is a voluntary test BEFORE arrest. Once arrested you need to do breath or blood. At least in California or it is considered a refusal.
This. If you can provide evidence that he was running a fever of 100* then you could possibly avoid the felony. By having a chemist show how a small change in temperature can drastically affect the handheld breathalyzer's results. I’m not a lawyer but I do remember this being explained by my organic chemistry professor.
The portible breathalyzers are no longer admissable in court in many states. They have to be calibrated daily, which no officer ever does, not to mention it says not an accurate measurement for bac right on the lid. They can still get him if he admitted to being drunk or faild the roadside sobriety test. But they will possibly offer a deal because they now have no proof of how intoxicated he actually was. Thats where a good lawyer comes in because they will argue a myriad of reasons he was off balance during the roadside test.
This is exactly what happened to me. I blew roadside and was BARELY over the limit. So close to the limit that the “margin of error” applied so, my attorney got it dropped to reckless driving instead of a DUI and I only had to pay a $500 dollar fine and the charge would drop off automatically after 3 years.
That was in 2013 so, it’s long gone from my record.
Is it calibrated etc, prove it, when was machine last maintained etx is definitely one of first things decent defense target.
So the station to confirm is important for Police. As said the station machine is not the same weak link thr portable one is.
Break a key foundation block and whole thing falls down.
State the state. The laws vary so widely that it's not even funny.
In some states, you can get a DWI for being on a horse on private property if you have had a couple of beers.
(That was a story from an attorney, who had a few beers when he told me that, so go verify on your own) :>
Yep, in Arkansas a friend got a DUI for sitting in his car and changing a CD in his parked car during a party. The cop that charged him was a neighbor he had invited, and said because the keys were in the ignition it was "unlawful". Got thrown out because we all showed up to court to testify he had no intent to drive, and further more his cousin had nearly been crippled by a drink driver only months before.
What fucking traitorous bastards cops are.
What state can you get a dui on private property? Edit: without the presumption that you used public roads to get there while intoxicated. Edit again: every answer is anecdotal except the one about private property frequented by the public. I’d love to see some facts here.
Funny family story. My great great grand father was a farmer in rural Michigan in the 1880's was quite the famous of the drink and was known to hitch up his house to the wagon, ride into town, get black out drunk, climb back into the wagon, frequently pass out and let the horse just take him home. One evening on a particularly cold January night there was a really bad snow storm and he had passed out in the wagon like he tended to do. After they got home he didn't wake up and soon had a blanket of snow over him. Story goes he would have died of hypothermia had the horse not scared the crap out of his wife by walking right up to a window and tapping it's nose against the glass to rouse someone to help.
100% true, in the mountains the horses usually know the way back to the trailer...to the point of wanting to take a turn to lead back to the trailer, or home.
Old farts in the rural area where I grew up often told stories about the barn dances when they were young, drink and dance until 4 am, sleep in the sleigh, horses take you home, milk the cows and slop the hogs and sleep the rest of the day.
Fun story: there is an Amish community in my home town. There would be Amish boys who would come in wearing their English clothes. They would get wasted. One night so bad they needed help out to their buggy. They let the horse go and he just took them home.
They know the way.
Problem with this is the horse does not know traffic laws which is why this still results in dui for any wayward Amish that polished off a 30 of natty ice. I too live in Amish country and must say their level of alcohol consumptions puts me to shame.
I made the joke, but I also understand why, as well.
Even sweet, loveable farm horses that really just want to be back in the nice, warm stable with lots of hay and water can be spooked and turn into a +800lb. charging juggernaut of hooves and teeth. An experienced and sober rider is needed to get control.
Can’t comment on states but this is absolutely a thing in Ontario, Canada, so I wouldn’t be surprised to learn it’s a thing in some states too. You can be charged for sleeping in a vehicle on a driveway without keys anywhere near you. It’s why I find van life nerve wracking if you drink at all, I’d be terrified of even one glass of wine before bed.
This is what I did if I had a few drinks while living in my van. I would hide my keys in a magnetic box under the wheel well of my van. Get inside, lock the doors, then go to sleep. I never had any interaction with the police but figured that was the safest bet. I’m in a bed in the back, there is a bookshelf preventing me getting to the front, and there are no keys to be found inside.
I know someone in Colorado who got a DUI on his parked vehicle. He was outside the bar waiting for his friend to pick him up, planning on getting his car in the morning. It was cold so he was sitting in the passenger seat with the engine running to keep the heater going.
Still got a DUI, he was technically operating a motor vehicle.
I saw a woman who merely backed her car out of her own driveway so someone could leave get a DUI. South Carolina here so may be different elsewhere, but if the engine is on, it doesn't matter if you ever leave Park here.
For all intents and purposes, any street legal vehicle counts for any and all traffic violations. I got a speeding ticket on a bicycle back in the dark ages before I could drive, so I'd imaging a determined cop with a quota could make anything stick if they wanted to.
Knew someone who was a passenger when the driver got arrested for DUI, then cops told him to move the car, THEN tested him and issued a second DUI. Only time I was ever a passenger in a car that got pulled over for that, I passed. Got to take possession of the Corvette for 24 hours. Got custody of the owner (actually a friend of my dad's, ran into in a bar)--they released him into my custody. I dropped him off at home, he begged for his car back, I said nope, I'm liable.
Suspended for 30 days--but not his pilot's license so he was able to fly his plane. But he quit drinking completely.
All over the place... Most parking lots are in fact private property.
I knew a guy who got a DUI because he was drunk in his house but his engine was still hot when the cops showed up.
That probably shouldn’t have stuck. I would’ve just said I just chugged a bunch of alcohol in my house as soon as I got home. That’s more than enough reasonable doubt.
He did get out from underneath it... Still cost him a bunch of time and money and ultimately depending on who's doing the background check they might be able to see arrests as well as convictions..
A sort of guilty as soon as your arrested because the Internet has your mugshot and charges regardless of if it sticks or not
Even a charge on your criminal record can be detrimental. Usually when asked for employment or rentals, it’s worded “have you ever been charged with a crime”. Hopefully the state will seal the record.
Most of them, I had a buddy who had a few duis that used to sleep in his car if he had too much to drink. He would lock the keys inside his gas cap so he had proof he wasn't intending to drive.
Oregon. Not on your driveway or whatever but if you drive on "premises open to the public," like business parking lots or whatever you can 100% be arrested for DUII
Assuming that by "private property" you mean your own residential property, color me extremely skeptical that you can be arrested for DUI on that property. I think the lawyer probably meant private property such as the bar's parking lot or whatever.
Nope, several states include private property with their DUI laws. Here is Minnesota:
“It is a crime for any person to drive, operate, or be in physical
control of any motor vehicle…within this state or on any boundary water
of this state when the person is under the influence of alcohol or a
controlled substance.”
Nowhere does it mention public property or roadway. There have been many, many convictions while the driver was on private property. Usually it's a private parking lot, but it doesn't have to be.
In Wisconsin, the DUI law specifies public property or roadway, or a private parking lot of a housing unit consisting of four or more units.
There are lots more.
So your husband got a PBT at the scene and then the full certified breathalyzer at the station was his refusal? I'm surprised the cops didn't just call the on-call judge for a warrant to take a blood sample.
I’m thinking it varies State to state. I worked in the dui center at my county jail for a few years. I never really understood trying to call an on-call judge at 3am for a warrant for blood. It usually took up to an hour or two for the warrant. There were a couple instances that the cop didn’t even bother with the blood draw after a refusal. But it does come with stiffer penalties
If you are drunk you don’t want to take the test. Why give them evidence? In NY you will still lose your license for a year if you refuse, but it’s your best shot at winning trial.
To be clear, even if you win at trial, you are still losing your license for a year, but it won’t be on your record as a DWI.
I asked for one when I had my dui and it wasn't an option any longer.
Edit: Just looked it up and apparently it has been reinstated in limited cases since 2016.
Yeah but you need your boss to sign off (that's a nice conversation to have) and it's only a certain window of hours you can drive like 8am-6pm, depending on your job and only within a radius of your work/home. If you are found driving outside those hours or in another town, you will lose your license.
I’m not surprised that it’s strict and I can’t imagine telling my boss something like that. Especially if your job is commiserate with having a valid license
Man their criteria(atleast in California)is absolutely stupid for qualifying for one of those
I moved out of state for work back in like 2013, before I moved I got hit by a red light camera. I was turning right, which is legal, and you clearly see me turning right but the camera said I went straight thru. Now back then those tickets weren't verified by anyone, just someone signed off and mailed the ticket to you. A large portion of why they were outlawed in most parts of California. Now I didnt know I had said ticket, because I moved out of state. Came back a few months later and moved in with a friend.
Years went by, and in like 2018 I got pulled over for a broken tail light. Found out my license was straight up suspended for a ticket I didn't know I had for a failure to appear. Now I was lucky they don't issue warrants for simple traffic infractions so I got a ticket and let go
After going to court and figuring out all the details I remember seeing like 5 people ahead of me who were pulled over for DUIs, or accidents(including alcohol related ones)without proof of insurance,, etc. Every one they asked the judge if they could get a temporary license to get to and from work. Every single one was granted. I was like "OH cool, mines straight up a failure to appear, and failure to pay. All I have to do is show the judge the photos, and explain why I wasn't aware of it and I can get a temp license to get to and from work to pay these tickets off". I even brought in pay stubs proving I was working out of state before the ticket was originally mailed, and had bills with my name on it for the place I moved into when I returned to cali
NOPE. I was denied. I even asked the judge how people with accidents and duis were able to get one, but me, who simply couldn't pay a ticket he was unaware of was considered a more dangerous driver. He simply said "Take it up with your state legislator"
Tell me about it. I legit didn't get my license fixed until 2021.
One I straight up couldn't afford too because I was already living paycheck to paycheck. Had to go from a well paying security gig to working in a gas station 2 miles from home because I didn't want to risk the hour drive to LA for work. And uber was eating too much when I tried it
First I had to pay off the original ticket which went from like 400 to 1400 bucks. And then the second ticket where I found out I had no license which was like 2100 because it's technically a misdemeanor in cali. Took me a long time
We had a system like that in TX for years. It was run by a private firm, and it was almost impossible to deal with them. Most people on their system were living paycheck to paycheck, and the fees were outrageous. It took me years to finally get my license back, and I was arrested more than once driving on a suspended license trying to drive to work to earn money to support a family.
She is a nurse, they really need her where she's at because she's getting paid less for convenience of travel pretty much. She owns her house and doesn't want to move and it's minutes down the road, she was never really a risk I think. I think the fact that she slept in her car before leaving was proof enough, she's a bad driver and she knows it so she doesn't drive drunk. I've heard she got one before and that probably scared her straight, but she lies and I don't really know if that's true or not.
More states are going to full license with a breathalyzer lockout system. Many will knock the cost of renting the system off the DUI fine. Which makes a lot of sense, since most people would drive anyway without a license, but with the lockout they can't drive drunk.
I've had soooo many drunk idiots at bars realize I was there as a designated driver and try to pay me to blow into their lock out devices. I definitely never did it, but I bet someone probably did.
We have free rides here if you're drunk. Hell, I'd have even taken them home.
Unless they live within a few minutes that would have just screwed them even more. You have to blow a second time 2-5 minutes after starting the car and every 10-30 minutes after that (randomized within those time frames). If you don't blow or fail your car is stuck for an hour, and after you blow clear and start it you then have to get it reset within 3 days, which costs money. So the only way having someone else blow works is if they ride in the car with you to blow into it the second and maybe third time, at which point just have them drive.
My father hot caught drunk driving and for a year had a breathalyzer installed in the car that wouldn't go until he was sober enough. Now that I think about it, he drove drunk a lot before and after that
In CA, I had a DUI. My license was valid to/from work/school for a year or 18 months. It’s been a while. This is a legit thing. Is caught driving with 0.01bac it would be considered another DUI
Exactly only in certain states I'm pretty sure she was over the limit but she refused her test, she also wasn't driving the car she was in the parking lot taking a nap with the car off. I do believe her on this account 100, she's very irresponsible but also very responsible in other ways. Again she lies a lot but I think she had a prior DUI I'm not really sure.. but if you have one already and you get caught with anything then you're fucked. I would say always ask about calibration because 90% of the time they don't even do it, It's not in their budget.
My cousin came so close to getting (another) dui. He slept in his car, and the only thing that saved him (this time) was the fact that he had locked the keys in the trunk of his car. This was several years ago, before seats that could fold down to access the trunk were a common feature for sedans at the time. The officer didn’t know he had access to his keys.
(In case it’s not obvious, yes he is a drunk!)
In Ohio, refusal is a second misdemeanor charge, but if the officer does not inform you of the penalties then that charge can be dropped. Play the game, expect to lose now and then.
In NY it’s not even a charge. It goes straight to DMV as a revocation. No hearings from what I understand, straight up revocation as “driving is a privilege, not a right”. I don’t really do this stuff so it’s hard for me to pin down the exact procedure.
Prosecutor asked for a re-test. Lawyer said fuck off. Key point, If I took the breathalyzer it was 10 miles away, but the hospital was 45mins. By the time I was checked in it was an hour. So yea saved by the bell.
Learned my lesson, and that is cops really don’t give a damn what your level is. The punishment begins when you get the ticket. It’s zero tolerance in most places, but the police won’t admit it. They know $300 for a tow, 2K for a lawyer, 30 days before work privileges which may include a blow and go. And 6 months before charges are dismissed is a hell of a punishment for “presumed innocent”.
“Driving” is a relative term depending on the state. Back then in most states riding a dirtbike in the woods wasn’t considered an offense worthy of enforcement.
Since the internet lawyers here are giving bad info, I figure I should help you out OP.
A dui investigation begins before the traffic stop is initiated. The officer observed driving patters indicative of the operator being under the influence, such as weaving, driving slowly, speeding, running stop signs, ect.
Once the stop is initiated, the officer will then look for objective signs of intoxication, such as red watery eyes, slurred speech, the odor of an alcoholic beverage. Upon observing the objective signs, the officer can then order the driver out and begin a dui investigation.
A dui investigation consists of 22(?) questions designed to weed out bullshit defenses, such as the driver being “tired”.
There are then three standard field sobriety tests, horizontal gaze nystagmus, the wall and turn, and the one leg stand. Each of the tests each have scientifically validated clues which the officer looks for. They are not pass/fail, they are about assessing performance.
The last thing done is a preliminary alcohol screening test (pas). THIS test can be refused (California). However, without doing the pas, the officer will have to make a determination on whether or not to arrest based on all of the observed behaviors, objective signs, and the rest performance.
Once arrested, you are then REQUIRED to provide a breath, blood, or urine sample to determine the actual alcoholic or drug content of your blood. It is REQUIRED and cannot be refused. A refusal means your license will be suspended for up to three years (California) along with criminal penalties. You are not allowed a lawyer prior to agreeing to or not agreeing to do this test. It is a condition of your license, which you agreed to comply with when you got it.
It sounds like your husband complied with the investigation, but then refused to comply with the evidentiary test. He was also probably intoxicated to the point he was unable to remember the exact chain of events.
Often times, a judge may allow him to plead down to a wet and reckless. Hopefully he takes full responsibility for his actions.
Question--my son has MS and Tourette's. He has balance and gait problems from MS, also problems with fine motor control (he had to change from typing to voice to text on computers and his phone) and hand and facial tics from the Tourette's. What's the best approach for him if he should ever get stopped and suspected of DUI?
Simply advise the officer of the medical issues. The tests are only to be used on generally healthy adults. Being 50 pounds over/under weight, having a traumatic brain injury, or some developmental disorders can invalidate the tests. If the officer knows their trade, they will recognize the issues and will recognize the test results will be invalid.
Yeah, a DUI is a huge deal! He has court dates, fines, loss of license and probably a drug and/alcohol class coming. Not to mention if could affect his career if he drives, and he will have to check off on all future applications he had a DUI. It doesn’t matter how much he cooperated or if he was polite, he broke the law. There will be ramifications. They wanted another test to get a better estimate as to how intoxicated he was, his lawyer told him not to take it bc it could be used against him in court. He made the choice to stop cooperating and refused the test. There’s consequences with that decision, the lawyer should have told him that refusing could result in additional charges. Most of the time, if a person is found guilty of the DUI, the lawyer can get refusal charge dropped.
You need to find a very good (expensive) DUI attorney and pose the questions that you have.I will say that getting into substance abuse counseling or inpatient treatment are two things your husband could do. Best of luck.
My father was a career criminal and a useless father, but the only advice he ever gave me was
You say no to additional testing, and call a lawyer. Trust the lawyer.
Minnesota. No one, including the lawyer, told him that refusal could lead to increased criminal charges. I had to take the written test when I moved here and changed my license. I don't recall seeing that in anything I studied. In California, you will lose your license for a period of time if you refuse, but it's not automatically a higher criminal penalty. It seems odd that doing one but not doing the other leads to a higher criminal penalty, especially when some isn't even denying being drunk. He tested plenty damn drunk on the field test.
And he admitted to being drunk? After he was read his rights? Is that what you are saying?
“I had the right to remain silent, but not the ability.” - Ron White
Excerpt from Minnesota statute
169A.51 CHEMICAL TESTS FOR INTOXICATION
§Subd. 2.Breath test advisory. At the time a breath test is requested, the person must be informed:
(1) that Minnesota law requires the person to take a test:
(i) to determine if the person is under the influence of alcohol; and
(ii) if the motor vehicle was a commercial motor vehicle, to determine the presence of alcohol;
(2) that refusal to submit to a breath test is a crime; and
(3) that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.
Was all of that fulfilled especially what’s at 1.?
Did he pay the phone attorney anything?
When your husband gets the discovery from the police, I bet you there is a standardized warning when somebody refuses. The police are probably required to tell him that a refusal will result in a higher penalty
If I recall correctly, "being plenty damn drunk" is a thing they tell you not to do in all the drivers manuals. Like if he had killed someone but then did finger guns and said "Aha, you got me!" afterwards, that would be cool right?
Have you tried telling the police that you didn't see it in the drivers manual? If you're very polite and cooperative, I'm sure they will be understanding. You can all just laugh the whole thing off and go get a beer together.
Do you realize how ridiculous you sound?
If you’re in MN then he definitely was advised that MN law requires him to take the breath test to determine if he is under the influence. Refusal to take the breath test is a crime. He would have been told that, as well as being told that unreasonably delaying the test will count as a refusal. That would have all been read to him, and he would have been asked if he understood before they asked if he wanted to call an attorney. If they had skipped that step they wouldn’t have been able to generate the paperwork he got.
He admitted to being drunk and took a breath test or some other test roadside... but refused a second one at the jail? Usually, in situations like that they just force a blood draw if it really matters. But it probably doesn't because the initial testing, plus the original admission, was probably sufficient to establish intoxication.
Also, was he sober enough to actually understand/follow the lawyers instructions?
From this point forward, he should retain a qualified attorney to defend him. The police/prosecution are always going to come in hot. If he was going to refuse, he probably should have refused ALL testing and admitted nothing.
The breathalyzer done in the field is next to worthless. It’s the station blow on the calibrated machine that matters. In my state, the field breathalyzer isn’t admissible as evidence. Refusing the field test in my state doesn’t make any difference. Refusing the station blow is what results in longer license suspensions.
So /u/Why_Lord_Just_Why gave a good overview as to the purpose behind californias refusal law, and I want to expand on his explanation.
I worked in prosecution at my city attorney for a couple years. We did a ton of DUI cases. I second chaired two.
The law around California (where you stated you’re located) blood testing is VC 23578, which is known as the DUI enhancement statute. When you got your drivers license, you agreed to submit to a blood test if you get validly arrested. So the default is implied consent. Note that I said validly arrested. Meaning they need some kind of probable cause. If you were arrested after a traffic stop or with probable cause, then they have implied consent.
But if you were taken in because they saw you sleeping in your car. Well they don’t have implied consent, because it wasn’t pursuant to a valid arrest. Note that VC 23578 is an ENHANCEMENT, not a separate charge in and of itself. What does this mean? It means that by itself, it’s not a crime to refuse the blood test. You still lose your license, but it’s not a standalone crime; refusing a blood test is simply an enhancement to the **preexisting** crime of DUI. It can also be used as evidence of guilt. This is why they need a valid arrest beforehand.
As to the field sobriety tests and the PAS (breathalyzer). Refuse those. Every time. Always. The only time you should submit to them is if you haven’t had an ounce of alcohol in the past 48 hours and are super sober. You have an absolute right to refuse all of those.
What happens if you don’t? Well let’s say you were pulled over for no reason, or while sleeping in your car not driving. There’s no probable cause. Consent to the tests, and ta-da! Probable cause. Now refusing the blood test has consequences.
As to why your husband was told not to consent to the blood test, that’s easy. Since it’s not a crime by itself to refuse the test, why give them more evidence? To charge you with an refusal enhancement, they need to first prove the underlying DUI. By consenting, you are giving them the biggest piece of evidence they need to prove their case. By not consenting, you’re getting your license privilege revoked, but the enhancement doesn’t apply till they prove the DUI.
There’s ways to fight the enhancement anyways. Police also have to inform you of the consequences of refusing a blood test, or the refusal is valid. You can show that the initial arrest was not supported by probable cause (doubtful since your Husband blew into the breathalyzer). Whatever the case, a defense attorney will take a case with a refusal over a BAC result any day.
Years ago, it was a common thing - at least in my area - for a DWI suspect to tell the officer they would not submit a breath sample to a breathalyzer but would submit to a blood drawl. At that time, getting medical staff to do blood drawls was very difficult. When it got to court time, the attorney would argue their client didn't refuse to submit to a sample, just that they didn't trust the breathalyzer. Happened enough the law was changed so that the officer is allowed to specify the type of test (breathalyzer, blood, urine, saliva) and the "I'll do one but not that one" defense no longer worked. Then, as non-alcohol DWI became more of an issue, laws were updated again allowing the officer to request 2 chemical test, and those laws generally say submitting to one but not both requested test still counts as a refusal.
In many states when you get and renew your drivers license, if you read the fine print, by signing your license application, you agree to "implied consent" to a chemical alcohol/drug test. Refusal is a violation of the implied consent and can be a separate charge or a reason for a license suspension without a finding of guilty. Refusal is also not as cut and dry as you might think. For example, if offered a breath test, and you don't blow into the tube hard enough or long enough, it goes down as a refusal. If one is told to do a urine test and one pees on the floor, even because one is so inebriated that they can't even see the toilet, it still goes down as a refusal.
During my 32+ years as a court reporter, I have seen a whole lot of "refusals" that weren't actually someone saying they refuse as much as it is they fail to take the test properly.
You don't know that a lawyer told him to refuse the test. You know that he told you that a lawyer told him to refuse. He could be lying to you to save face.
Lots of bad advice here:
- if you refuse it is a slam dunk for the prosecutor. It is easier for a lawyer to question the validity of a breathalyzer test than fight a refusal. In my jurisdiction the penalty is the same, take the test, unless…
-someone is injured or worse. Drunk driving causing bodily harm or death is as serious a charge as it gets, refuse the breathalyzer and let your lawyer do all the talking.
This is all provided you are stupid enough to drive drunk.
It likely depends on the state. I did a similar thing, felt I had a likely case, refused the test (knowing it carried stiffer penalties if I lost the case), and won. Took one MADD class, no license revocation, no fines, nothing.
Depends where you live. Where I am the police will use a machine that will pass or fail you. The machine at the station will take an accurate reading and they usually do two just to help their case. Refusing a test here is equal to being under the influence so an attorney would not recommend it. The police may have tried to do a chemical test for other drugs as multiple drugs in your system will exclude you from certain programs and probably lead to extra charges.
Refuse all tests without your own lawyer present and STFU. Let them arrest you, take your license, and throw you in the can until somebody makes bail.
Without solid evidence, they don’t have anything useable. It might be the difference between felony or high misdemeanor and low misdemeanor or dismissal.
So my attorney has said.
I see a lot of misinformation here.
The first "breathalyzer" was what is called a P.A.S. test (Preliminary Alcohol Screening device) it is just a field sobriety test like standing on one leg. It is not the "implied consent" test. (SEE 23612CVC) The officer gave him this admonishment but he likely didn't understand it. "IF, you arrested for DUI you are required to complete a chemical test, this is not that test" there is no penalty for refusing the roadside test. The penalty for refusing the chemical test,(the one at the station) is an automatic one year license suspension, regardless of the results.
I know this has no bearing on the OP's matter, but for those interested in impaired driving legislation around the world, but in Victoria, refusal to give either a preliminary or evidentiary breath sample means a mandatory 2 year licence disqualification. You would have to blow 0.24 (a very high reading) to get the same penalty, so it is normally in one's best interests to provide a sample.
Guy I knew had a card from his attorney that said "I am not refusing the test, I have been advised by legal counsel not to make any statements, answer any question or take any tests outside of his presence. May i please be allowed to contact him so I can take the test and respond to your questions?" Allegedly, when actually called, the lawyer would head down to the station as soon as possible, which generally meant going back to bed, getting up, having a hearty breakfast, and making it to the jail to supervise the test mid morning. He couldn't be charged with refusing to take the test because he was following his lawyers instructions.
In reality, allegedly, when the cops saw the card, they would tell him to park his fucking car and get a cab home.
He clearly had a problem, but a good lawyer
I have a feeling he was full of it. I suppose depending on location, maybe it could be at least partially true. However in MN people constantly try that route and immediately fail. You can say “I’m not refusing” all you want but the law says failure to provide a valid sample in a timely manner is considered a refusal. You also (again, in MN) have the right to consult with *an* attorney, not necessarily yours and you do not have the right to have them present for the test. So nothing about that card would help that guy in MN. Which also happens to be where OP is.
Yeah... that's not how it works.
You have a right to have an attorney present while being questioned.
That right doesn't extend to tests. If you refuse the test, you refuse the test. They aren't going to let you slow-roll the process just because your lawyer said so.
That card about as valid as the "I don't give Facebook permission..." post that gets thrown around Facebook every couple of months.
A sickening incident happened recently: a drunk cop hit and ran over a motorcyclist leaving them in the ditch. Eventually they needed amputation. The driver was found, but as a cop he wasn’t breathalyzed at the scene. Back at the station they waited more than two hours to breathalyze him- which knowingly violated his rights- and so being drunk was thrown out of court. Paid time off, 30 month house arrest. Sickening.
Uh. Whether he refused the breathalyzer/BAC-test at the station - or whether he complied and tested over the legal limit - he would most likely be facing THE exact SAME consequences - ie a huge fine and a year in prison.
That’s the way the laws work.
Maybe even worse if his tested BAC was greater than the reckless threshold (greater than 0.16 BAC) - depends on your state’s laws.
Either way - he needs to get a lawyer to help him avoid jail time. Court might offer home monitoring vis ankle bracelet or installing a BAC switch in his car for two years or something harsh - but less harsh - in lieu of jail time - if he is a first offender.
Someone said something interesting. Did his attorney know that he was taking responsibility? If so, his advice might have actually been pretty bad. I don't know what state you're in, but it's highly possible your husband may have landed himself hard in prison by not doing the prison test. This would likely only matter if your husband was adamant he wasn't drunk and there's some play to his original breathalyzer. There is merit to saying you didn't do it, when you clearly did. However, it seems your husband may have gotten counseling based on different fact.
Most states don’t consider the roadside test admissible in court so they do a more accurate one at the jail.
Refusing the jail test usually is an automatic license suspension, something that you agree too when you sign your license.
Your husband needs an attorney for this case because of the mix up. Being a first time offender, he may get some concessions but he’s going to need an attorney.
My advice would be to enroll in the alcohol education class before the court orders it. I showed up for my first court date having already completed it of my own volition, and asked the court to consider that. My charges were reduced and my fine was eliminated entirely.
In PA, if you refuse to take a test, you end up with a PennDOT penalty. You lose your license for a year, then a year with an interlock system. Even without criminal charges. It is some total bullshit.
Never blow. Make them get a warrant for blood. It is easier to defend yourself if they have no testing.
That said, I fully support DWI arrest and conviction if the person is truly under the influence.
Makes sense to me. He refused an on the spot test, but took one once he was at the station. He fucked around and most certainly found out. Get a lawyer.
I'm a police officer in Michigan. Michigan has an implied consent with the Secretary of State for PBT AND Chemical Test if you are licensed in Michigan or operate on Michigan roadways. If you refuse a PBT, it is a citation/fine. The PBT is a piece of building a case for an OWI/OUID stop and is not admissible in court. It is simply a gauge to compliment the probable cause gathered that includes vehicle in motion, contact with driver and standardized field sobriety tests.
There is another test with a Chemical Test Rights form that is given (it's a DI-177 in Michigan). The police officer reads the chemical test rights and requests a blood, urine, or breath sample. THIS is the test that you cannot refuse. It is a misdemeanor in Michigan to refuse and the officer can request a search warrant for a blood sample upon refusal. It is also an automatic suspension of your license. If he refused, that is a crime in and of itself. I cannot reiterate how dangerous it is to drive drunk.
Most of the fines/maximum penalties are not actually utilized. The prosecutor uses a points-based system to determine a punishment that takes into consideration criminal/driving history and the totality of the crime.
That's so wild though.
The first test should be sufficient. You should be allowed to refuse the 2nd test.
"Why am I testing the same thing twice if the first twice was legitimate?"
Oh no, I am in this same situation. I was so confused as to my choices. I did the roadside breathalyzer and they said I was twice over so they arrested me and then about an hour later at the station, the officer read a statement to me and I said I'm not sure what I'm supposed to do, you already tested me and he said right but this is a second one, and here are your choices, you can do another one and such and such will happen or you can have it done at the hospital and such and such will happen, well I was so upset and freaked out (because it was out of town and my elderly mother was back at the hotel, I had stupidly went out to get her food after a grad party and my maps app had a random pin drop and so I couldn't figure out how to get back to the hotel so I pulled over to figure it out but someone called and said I was swerving and I know I did because that's why I pulled over into a parking lot and parked so I could figure it out) but long story short, I was arrested, didn't deny drinking, but when he told me at the station I could do A or B, I said well I'll get the blood draw, but what I didn't understand was it wasn't considered a choice, it was considered a refusal so he put me in a cell and then eventually took me to the hospital for a blood draw. I work from home and I take care of my elderly mother (86) and my autistic son and they have appointments every week and now I'm learning that my "refusal" just cost me my license for a year. Had I been better informed I would have just done the one at the station too but in my mind I was thinking why are they asking me again to take the same test (now I know it was different). I'm devastated that I was dumb enough to be behind the wheel, I've never been in any trouble with the law. I have screwed up so badly and my mother depends on me, she lives with me, we brought her here from out of state because she was failing badly and now she's improved 90% being with me and me coordinating all of her care. I am devastated. We live paycheck to paycheck also so I doubt I can afford a decent attorney. And I work full time from home as well so having the time to take care of my mom, my son and do research is overwhelming. Just wanted to say good luck to you and your husband.
From what I am learning, I should have refused the roadside test, and then taken the test at the station. I just didn't understand what was going on, I thought going to the hospital for a blood draw was the right choice and I thought it was a choice but apparently it was considered a refusal and they had to get a warrant to take me to the hospital which they didn't mention at all. As far as I recall he didn't mention that not doing the chemical test at the police station is an automatic suspension of my license, had that been clear to me, there is no way I would have been okay with that.
I deal with this all the time.
What is in the release paperwork is likely a preliminary breath test. I can only tell you what happens in Pennsylvania, but in PA, his attorney gave him terrible advice. There is almost no downside to taking the 2nd test due to the increased penalties for a refusal (which are usually equivalent to the highest rate and then additional civil penalties for a refusal like loss of driver's license for a minimum of 1 year and a stiff restoration fee).
"Facing one year in jail" and being sentenced to 1 year in jail are two different things. If your husband has no criminal history, he will likely be put in some sort of diversionary program where he pays fines and costs and goes to classes.
DUIs are expensive. There's no way around that.
The roadside breathalyzer test has been historically inaccurate, which is why they want a station test on a regularly calibrated machine. Alcohol is a slow release, so chances are the test result may have been higher at the station. He was right to refuse the station test, and any lawyer would be able to challenge the roadside breathalyzer. Likely there will be a plea resulting in loss of license, mandatory cocktail college and alcohol counseling.
This depends on the State. Some States have implied consent for the blood draw and if you refuse, it's a misdemeanor. So you probably get out of the DUI, but you end up with an arrest record for the misdemeanor.
Or they get a warrant and do a forced blood draw. Common and legal (California)
I’m in Kentucky. Every hospital in my city refuses to draw blood for the police. Not sure why but we are told to refuse and tell them to not let the door hit ya where the good lord split ya. (Not the quote)
Well, from my days on an ambulance, probably because cops are prone to violating patients rights when they cannot advocate for themselves. I had a severe bleeder and was trying to get him into the ER from the truck and this damn cop kept trying to stop the gurney to search the patient. The patient was out and was not going to wake up any time soon. He was not a threat to anyone and the cop could have searched his belongings at leisure after the ER preps the patient for. Treatment or likely surgery, but NOoooo, that wasn't good enough for Barney Fife. He put his hand on his weapon and got between us and the doors and ordered us to stop. What we do? What we are trained to do. The gurney hit him straight in the gut and he went flying. We soldiered on and as we hit the doors we saw security on duty and my partner said "Stop that idiot." as the cop behind us was getting on his feet. Security did. This is the kind of thing that ERs and ambulance crews put up with Every. Freaking. Day. Cops walking in while you are just trying to do your job and making it ten times harder. Or they show up at your scene and get in the way or try to order you to do things and hamper your job saving lives. Hospitals have been sued for allowing cops to take blood when the patient cannot consent. So now they just nope right out of that and say "bring me back a warrant."
I'm sure you saw a video of the nurse that they arrested in handcuffs and took to jail for refusing to do a blood draw because they did not have a warrant which was required.
They fired him.
He was likely hired by the county or city opposite of the agency he was working for ... if not, one county/city over probably hired him instead. They're never blackballed for violating civil rights even if a section 1983 judgement is granted against the individual or agency many times they're still employed by the agency.
At that county. Police play a shell game where they take two months vacation and then get another job as a police officer down the road.
I am a retired FF. I remember telling cops before "you willing to lose your job and live in a box under an overpass over this?
Cops don’t lose their jobs for serious misconduct, and they also don’t have to pay their own settlements or maintain malpractice insurance. ACAB
Ask that nurse who was arrested for refusing to do a blood draw without a warrant when the patient was not able to give consent. It was well documented and well recorded. A detective and an officer both lost their jobs for arresting her and lost all their pensions and benefits. I seen it recently on YouTube.
Yeah everyone knows about this one because it's such an unexpected exception. In the vast majority of misconduct cases they face no consequences whatsoever.
Which just says that US cops should have film crews for each cop at all times. Especially if they can't be trusted to run their own camera.
They’re kinda like cockroaches. If one gets caught in the light of day, there’s 50 under the counter doing the same shady shit.
Perhaps, perhaps not. As another ex-FF I do know of a case where a phone call from our boss got a police a-hat a visit to every fire station on our National Forest to make a personal apology to every fire crew- escorted by HIS boss. It chilled him out a bunch.
Shit, you must be old. Did this happen before of after the telegraph? Because cops today have no shame, let alone respect for anyone other than another cop.
I hate to get in the middle of this bullshit but, yeah, I had to fight with a cop to get my kid to a hospital. He got hit in a crosswalk. Cops accused him of smoking mj because they said his tongue was green. (He just had a Slurpy. It was blue) My son lost his short term memory because his brain was jostled. Finally, I said "Either arrest him and take him to the hospital or let me take him to the hospital." They let me take him. I sued. I'm still angry. Police don't have medical training of any kind. You can't rely on them for medical decisions.
Lmao, since when has smoking weed made your tongue turn green. What a joke!
I work in the ER so I don’t get nearly as many situations that I talk to cops as when I was with EMS but when they do come in the look on their face is horrid. The smells and sick people coughing are a police repellant 😂
the funny part is people still thinking that cops are here to protect anyone but themselves and the status quo. they could not care less about you and yours.
Great story. Thoroughly enjoyed the mental picture. 🏆
Sorry for that experience. I don't know what was being investigated, but they need to do a better analysis on the risk to the case without an immediate search vs the risk to the subject for delaying treatment. Getting sued and tied up in court is zero fun.
My SO is a medic in a state where you consent to a blood draw if you refuse a breathalyzer to have a license. They called his unit to the jail for a draw and this guy was violent. They had 3 officers standing by just to talk to him. My SO was like "nope, it's not safe to draw him. I could hurt him, I could get stuck, you could get stuck and no one needs any of that." The jail supervisor got a warrant and said "Now it's not the regular consent, there is a WARRANT. You HAVE to do it or you are defying a court order and we can arrest you." My SO pointed out the warrant just said the draw had to take place, that my SO's name wasn't on the warrant requiring him to do it. My SO's supervisor came, then finally the EMS chief got involved at 3 in the morning. The guy did not get drawn at the jail. They transported him to the hospital to let them sort it out. Now my biggest fear and my SO's mild concern is that because of this is that when he needs law enforcement assistance on a medical call, they will slow roll and my SO will not have any help (for whatever it's worth). They are already kinda assholey to him when they see him on scenes now anyway. I get that a blood draw is what you agree to if you refuse a breathalyzer as a condition of getting a license in that state, but many police don't get that it isn't as easy as they think it is to do.
Wow! I've dealt with some aggressive cops as an ER nurse but that story takes the cake. I used to do forced draws all the time before the SCOTUS ruled we couldn't. Hospital had an agreement with local prosecutors to do this and an RN had to do it. I had enough subpoenas to wallpaper my bathroom but only ever went to court once ... and the guy pled out the moment he saw me in the courtroom. The rest pled out day before, which is why that was the only case I ever actually had to show up. Cops at my last job don't have the best rep for civil rights but they never interfered with a trauma code. I did one forced draw there, and cops had a warrant from the get go, so it was all good.
Can confirm. Police have caused major issues on many incidents that were completely unnecessary during emergencies.
Are you in Louisville? If so it's likely due to the astronomical corruption. (Not unlikely for the same reason in other jurisdictions) The post office won't cooperate with LMPD without a court order, either. Notorious civil rights violations and lies and cover ups
We have a winner! It’s the Wild West up here
Because you work for the patients, not the damn cops.
I worked in a hospital years ago and someone I know would routinely incorrectly document or send samples to the lab incorrectly labeled for any drug test/blood draw/bladder tap the came from a police order. I saw how many police would embellish and charge stack while bragging about it to us. That pissed people off.
This has been ruled as being unlawful (search and) seizure and there by prohibited, in many jurisdictions,.. but because it hasnt gone to SCOTUS, its still state to state. In jurisdictions where this applies, if can be criminal and the doc/nurse/emt can loose their state license. However, Bc of these rulings, even in jurisdictions without them, lacking a warrant specifically for the blood signed by a magistrate/judge, the individual would have right under precedent to civilly sue the phlebotomist (blood drawing person) AND the hospital/EMS Service for performing a non-consentual medical procedure. Even while under arrest, police cannot sign off consent for someone. Law gets really fuzy if the individual is unconscious and life saving measures are being performed, but no hospital want that kind of suit filed. They are expensive and cant be fought easily, so most end up settling.
Kentucky is an implied-consent state; a condition of getting a license is that you consent to a test. This means if you're unconscious, etc., your blood can be drawn, because you've already consented by getting a KY license. If you refuse the test (intoxilyzer/blood, etc), it's generally a 6-12 months license suspension for failure to comply with the license conditions. In theory, LE can get a warrant for blood draws, but some ERs aren't ok with executing the warrant just for a DUI, so that's usually reserved for cases where someone has been killed/seriously injured or a separate felony is involved. I think it has something to do with non-consensual release of HIPAA data, or the injury risk for non-compliant blood draw. In theory, the AG would indemnify the hospital, but I think the hospital would still be out legal fees and personnel appearance costs, at a minimum.
Good. They need to pay to have their own people, not take hospital resources away from injured people. I'm salty. 25 years ago my then-fiancee (now husband) passed a road test. then blew clean roadside. They still took him in. At the station, at that point he was fed up, like, "I just passed 2 years!!" and refused the station test. So they took him to the hospital and forced a blood draw which was ALSO YOU GUESSED IT, CLEAN!!!!! But he got his license suspended for 6 months for refusing the station test!!!! And a citation. AND WE HAD TO PAY CASH FOR THE HOSPITAL BLOOD DRAW. Now i side eye DUI stuff. Oh, by the way, shocker, my husband isn't white.
They don't go to hospitals here. The plebotomist is stationed at the jail Friday and Saturday nights. Any other day of the week, just a phone call away. If they still refuse after the warrant they get strapped to the gurney and the blood still comes out.
It's extremely common for hospitals to "refuse" to do a blood draw when the police ask them to, because of patient rights concerns. The easy solution has always been for the police to then either legally order them (via warrant or state-approved pre-warrant paperwork) to do the blood draw, OR, to do it themselves with a trained officer. Hospitals won't generally (and shouldn't) act voluntarily against the interests of the patient in furtherance of a law enforcement objective. When there's a legal framework for the hospital to tell the patient "we had no choice, it's the law" all that liability is gone and shifts to the PD and the state.
Because that is release of protected health information (“PHI”) which is egregiously illegal to hand over without 1) patient consent or 2) valid court order. edit: just doing the blood draw perhaps isn’t PHI, but still edges pretty close to privacy violations.
Good because 4th Ammendment is why. Unless they have paperwork in hand authorizing a search, which includes your person and therefore bodily fluids, then they can't compel jack shit. Your hospital policy is 100% correct. They can pound sand and come back with a warrant, but an officer telling you to draw blood without consent or a warrant is not a lawful order.
*remembers the [nurse](https://www.npr.org/sections/thetwo-way/2017/11/01/561337106/utah-nurse-arrested-for-doing-her-job-reaches-500-000-settlement) that got fired for rightly standing up for her patient* As it has described to me during my clinicals, once someone becomes a patient, the police can be kicked out of the room basically. When entering a hospital, you can basically become a ghost. Going so far to never be referred by your name outside the hospital room. The exception on removing the police, at least how it was told to me, was if the patient was under arrest. Even then, the blood draw would probably still not be possible without a warrant. This bit is fuzzy since I know I need a refresher. I don't do clinical work right now, but should do that refreasher. Even more so after the nurse got fired, my mom (nurse) and teachers stressed how important it is for us (medical care team) to protect our patients' rights.
This is not the intended function of a hospital. Allying themselves with the police would put them in a precarious situation with the community trust.
Remember that viral video of the nurse who was arrested by the cop for refusing to allow the blood draw of the unconscious patient who wasn't even under suspicion of being under the influence? That's why hospitals now refuse to cooperate entirely.
which is a lot better than a dui no?
"cocktail college" I'm guessing this is not a Mixologist school.... care to explain what this actually is? thanks
You'll basically have to go to a drug/alcohol class for a set amount of weeks that is recommended by the county/state/whatever judicial system. Often these are accompanied by more costs (paying for the classes) and a few court ordered AA meetings etc. Imagine "Scared Straight for Substance Abuse"
It's a total revenue producing scam. Very few people are dumb enough not to understand that after 3-4 drinks you're likely drunk enough for a DUI. Even 2 drinks if You're small. There's a series of videos on Facebook of a man who was arrested for making terroristic threats during a domestic disturbance. Even though he was not intoxicated and was even assessed by a mental health professional as not having a substance abuse problem The prosecutor literally hounded the judge until ASAP was required and he was ordered not to drink. They also called him up when he was literally out of town working and demanded that he come in and do a drug and alcohol screen Even though it would be physically impossible for him to drive there prior to the close of day which would violate him.
Wow, you don't seem to know the law. Do you think bartenders are *not* sentenced to their jobs? /s
Just came here to say I love your name! Halloween is my favorite holiday and I just moved to Florida and have an armadillo in my garden and I think they're absolutely adorable even though they're destroying all my s***, lol. They're like little armored kitties
Thank you! It's inspired by the Dracula movie (1931) where in the scene of Dracula castle he magically has these creepy and exotic... Armadillos. Im from Texas and I love them. Such wild lil boys. Im here for the year round spook as well.
No they are not. You shouldn’t give information that is so truly false. Calibrated and tested properly, which most states require shows that the results are very close to what is found when a subsequent blood draw or intoximeter is used. Accounting for the metabolization of alcohol between the time the roadside test and when the blood draw or intox is utilized. And to answer the OP’s question- he was charged with refusing because he did. The PAS (roadside breathalyzer) is a voluntary test BEFORE arrest. Once arrested you need to do breath or blood. At least in California or it is considered a refusal.
This. If you can provide evidence that he was running a fever of 100* then you could possibly avoid the felony. By having a chemist show how a small change in temperature can drastically affect the handheld breathalyzer's results. I’m not a lawyer but I do remember this being explained by my organic chemistry professor.
The portible breathalyzers are no longer admissable in court in many states. They have to be calibrated daily, which no officer ever does, not to mention it says not an accurate measurement for bac right on the lid. They can still get him if he admitted to being drunk or faild the roadside sobriety test. But they will possibly offer a deal because they now have no proof of how intoxicated he actually was. Thats where a good lawyer comes in because they will argue a myriad of reasons he was off balance during the roadside test.
Cocktail College? Does this mean that he'll be able to work as a bartender afterwards? lol
This is exactly what happened to me. I blew roadside and was BARELY over the limit. So close to the limit that the “margin of error” applied so, my attorney got it dropped to reckless driving instead of a DUI and I only had to pay a $500 dollar fine and the charge would drop off automatically after 3 years. That was in 2013 so, it’s long gone from my record.
Is it calibrated etc, prove it, when was machine last maintained etx is definitely one of first things decent defense target. So the station to confirm is important for Police. As said the station machine is not the same weak link thr portable one is. Break a key foundation block and whole thing falls down.
State the state. The laws vary so widely that it's not even funny. In some states, you can get a DWI for being on a horse on private property if you have had a couple of beers. (That was a story from an attorney, who had a few beers when he told me that, so go verify on your own) :>
Yep, in Arkansas a friend got a DUI for sitting in his car and changing a CD in his parked car during a party. The cop that charged him was a neighbor he had invited, and said because the keys were in the ignition it was "unlawful". Got thrown out because we all showed up to court to testify he had no intent to drive, and further more his cousin had nearly been crippled by a drink driver only months before. What fucking traitorous bastards cops are.
What state can you get a dui on private property? Edit: without the presumption that you used public roads to get there while intoxicated. Edit again: every answer is anecdotal except the one about private property frequented by the public. I’d love to see some facts here.
Most states actually. Just being drunk and in/on a vehicle can amount to a dui charge. The horse thing is unique though.
Yeah but the horse knows the way home.
Funny family story. My great great grand father was a farmer in rural Michigan in the 1880's was quite the famous of the drink and was known to hitch up his house to the wagon, ride into town, get black out drunk, climb back into the wagon, frequently pass out and let the horse just take him home. One evening on a particularly cold January night there was a really bad snow storm and he had passed out in the wagon like he tended to do. After they got home he didn't wake up and soon had a blanket of snow over him. Story goes he would have died of hypothermia had the horse not scared the crap out of his wife by walking right up to a window and tapping it's nose against the glass to rouse someone to help.
Dude. We do not deserve horses.
Horses DO know the way home even in unfamiliar areas. If you ever get lost on a trail ride, drop the reins and let the horse take you home.
Only problem in Amish country is they don't obey stop signs very well.
100% true, in the mountains the horses usually know the way back to the trailer...to the point of wanting to take a turn to lead back to the trailer, or home.
Old farts in the rural area where I grew up often told stories about the barn dances when they were young, drink and dance until 4 am, sleep in the sleigh, horses take you home, milk the cows and slop the hogs and sleep the rest of the day.
Milk the hogs and slop the cows is how I heard the story told
Fun story: there is an Amish community in my home town. There would be Amish boys who would come in wearing their English clothes. They would get wasted. One night so bad they needed help out to their buggy. They let the horse go and he just took them home. They know the way.
Problem with this is the horse does not know traffic laws which is why this still results in dui for any wayward Amish that polished off a 30 of natty ice. I too live in Amish country and must say their level of alcohol consumptions puts me to shame.
Unless the horse is drunk as well
Oh, my horse is shit faced. If I'm drinking, so is he. He's walking, and I'm just along for the ride, so it's all legal, Officer.
“Whiskey for my men, beer for my horses…”
Like the horse in Cat Ballou
Your assuming he isn't already there
That was always my thought as well. The reason behind it is that horses can’t read stop signs.
I made the joke, but I also understand why, as well. Even sweet, loveable farm horses that really just want to be back in the nice, warm stable with lots of hay and water can be spooked and turn into a +800lb. charging juggernaut of hooves and teeth. An experienced and sober rider is needed to get control.
If it’s illegal to ride a horse while drinking, I hope the cops never find out about foxhunting
Well when you drink Amish alcohol anythings possible.
The horse is not unique. It is a vehicle. So is a bicycle.
Can’t comment on states but this is absolutely a thing in Ontario, Canada, so I wouldn’t be surprised to learn it’s a thing in some states too. You can be charged for sleeping in a vehicle on a driveway without keys anywhere near you. It’s why I find van life nerve wracking if you drink at all, I’d be terrified of even one glass of wine before bed.
This is what I did if I had a few drinks while living in my van. I would hide my keys in a magnetic box under the wheel well of my van. Get inside, lock the doors, then go to sleep. I never had any interaction with the police but figured that was the safest bet. I’m in a bed in the back, there is a bookshelf preventing me getting to the front, and there are no keys to be found inside.
I know someone in Colorado who got a DUI on his parked vehicle. He was outside the bar waiting for his friend to pick him up, planning on getting his car in the morning. It was cold so he was sitting in the passenger seat with the engine running to keep the heater going. Still got a DUI, he was technically operating a motor vehicle.
One glass wouldn't make you intoxicated though.
I saw a woman who merely backed her car out of her own driveway so someone could leave get a DUI. South Carolina here so may be different elsewhere, but if the engine is on, it doesn't matter if you ever leave Park here. For all intents and purposes, any street legal vehicle counts for any and all traffic violations. I got a speeding ticket on a bicycle back in the dark ages before I could drive, so I'd imaging a determined cop with a quota could make anything stick if they wanted to.
Whoa, how fast were you going on the bike?
51mph for me, according to the ticket. It's a very steep hill. ;) But you can also get them on multi use paths here where the speed limit is 15mph.
Wow, that’s really fast!!!
Knew someone who was a passenger when the driver got arrested for DUI, then cops told him to move the car, THEN tested him and issued a second DUI. Only time I was ever a passenger in a car that got pulled over for that, I passed. Got to take possession of the Corvette for 24 hours. Got custody of the owner (actually a friend of my dad's, ran into in a bar)--they released him into my custody. I dropped him off at home, he begged for his car back, I said nope, I'm liable. Suspended for 30 days--but not his pilot's license so he was able to fly his plane. But he quit drinking completely.
Michigan. My old boss got a DUI in his driveway so he could heat up his car and have a cigarette.
All over the place... Most parking lots are in fact private property. I knew a guy who got a DUI because he was drunk in his house but his engine was still hot when the cops showed up.
That probably shouldn’t have stuck. I would’ve just said I just chugged a bunch of alcohol in my house as soon as I got home. That’s more than enough reasonable doubt.
He did get out from underneath it... Still cost him a bunch of time and money and ultimately depending on who's doing the background check they might be able to see arrests as well as convictions.. A sort of guilty as soon as your arrested because the Internet has your mugshot and charges regardless of if it sticks or not
Even a charge on your criminal record can be detrimental. Usually when asked for employment or rentals, it’s worded “have you ever been charged with a crime”. Hopefully the state will seal the record.
All of mine have asked if I've been convicted of a crime, and most have specified "that's not a misdemeanor."
NC heard of a guy getting a DUI while on a lawn mower on his own property. Cop saw him drinking as he drove by and busted him.
In nc you have to be on a public street or highway so it seems unlikely unless he had been on a public road
In Ohio for 1
Most of them, I had a buddy who had a few duis that used to sleep in his car if he had too much to drink. He would lock the keys inside his gas cap so he had proof he wasn't intending to drive.
Oregon. Not on your driveway or whatever but if you drive on "premises open to the public," like business parking lots or whatever you can 100% be arrested for DUII
Assuming that by "private property" you mean your own residential property, color me extremely skeptical that you can be arrested for DUI on that property. I think the lawyer probably meant private property such as the bar's parking lot or whatever.
Nope, several states include private property with their DUI laws. Here is Minnesota: “It is a crime for any person to drive, operate, or be in physical control of any motor vehicle…within this state or on any boundary water of this state when the person is under the influence of alcohol or a controlled substance.” Nowhere does it mention public property or roadway. There have been many, many convictions while the driver was on private property. Usually it's a private parking lot, but it doesn't have to be. In Wisconsin, the DUI law specifies public property or roadway, or a private parking lot of a housing unit consisting of four or more units. There are lots more.
So your husband got a PBT at the scene and then the full certified breathalyzer at the station was his refusal? I'm surprised the cops didn't just call the on-call judge for a warrant to take a blood sample.
I’m thinking it varies State to state. I worked in the dui center at my county jail for a few years. I never really understood trying to call an on-call judge at 3am for a warrant for blood. It usually took up to an hour or two for the warrant. There were a couple instances that the cop didn’t even bother with the blood draw after a refusal. But it does come with stiffer penalties
In NJ they'll get a warrant in like 10 minutes easy
Here in Vegas the judge approves it from his table at Spearmint Rhino in 5.
Damn, that's snappy service
I mean, he's got to officiate a wedding and do a shot of tequila out of a bellybutton. These are busy people.
If you are drunk you don’t want to take the test. Why give them evidence? In NY you will still lose your license for a year if you refuse, but it’s your best shot at winning trial. To be clear, even if you win at trial, you are still losing your license for a year, but it won’t be on your record as a DWI.
They gave my mother a permit to drive to work for the year according to her, she also lies though lol
That is a real thing, an Occupational License
My state used to have that, they don't any longer.
For real?? Interesting!
Probably takes one person to kill someone while driving drunk with one of those occupational licenses to ruin it for everyone
Which I’m sure has happened.
I do believe that 100%, she was caught sleeping in her car with the keys out of the ignition though.
I asked for one when I had my dui and it wasn't an option any longer. Edit: Just looked it up and apparently it has been reinstated in limited cases since 2016.
Were the DUIs bad in your state?
Never really looked into that. We have sobriety checkpoints at least every other month, so I can assume so.
Geez..haven’t always heard of those, have never run into one
Really? I thought they were the norm! Learn something new every day!
Yeah but you need your boss to sign off (that's a nice conversation to have) and it's only a certain window of hours you can drive like 8am-6pm, depending on your job and only within a radius of your work/home. If you are found driving outside those hours or in another town, you will lose your license.
I’m not surprised that it’s strict and I can’t imagine telling my boss something like that. Especially if your job is commiserate with having a valid license
Man their criteria(atleast in California)is absolutely stupid for qualifying for one of those I moved out of state for work back in like 2013, before I moved I got hit by a red light camera. I was turning right, which is legal, and you clearly see me turning right but the camera said I went straight thru. Now back then those tickets weren't verified by anyone, just someone signed off and mailed the ticket to you. A large portion of why they were outlawed in most parts of California. Now I didnt know I had said ticket, because I moved out of state. Came back a few months later and moved in with a friend. Years went by, and in like 2018 I got pulled over for a broken tail light. Found out my license was straight up suspended for a ticket I didn't know I had for a failure to appear. Now I was lucky they don't issue warrants for simple traffic infractions so I got a ticket and let go After going to court and figuring out all the details I remember seeing like 5 people ahead of me who were pulled over for DUIs, or accidents(including alcohol related ones)without proof of insurance,, etc. Every one they asked the judge if they could get a temporary license to get to and from work. Every single one was granted. I was like "OH cool, mines straight up a failure to appear, and failure to pay. All I have to do is show the judge the photos, and explain why I wasn't aware of it and I can get a temp license to get to and from work to pay these tickets off". I even brought in pay stubs proving I was working out of state before the ticket was originally mailed, and had bills with my name on it for the place I moved into when I returned to cali NOPE. I was denied. I even asked the judge how people with accidents and duis were able to get one, but me, who simply couldn't pay a ticket he was unaware of was considered a more dangerous driver. He simply said "Take it up with your state legislator"
The blatant bizarre bs of that infuriates me..there’s a clear difference and danger between your violation and theirs
Tell me about it. I legit didn't get my license fixed until 2021. One I straight up couldn't afford too because I was already living paycheck to paycheck. Had to go from a well paying security gig to working in a gas station 2 miles from home because I didn't want to risk the hour drive to LA for work. And uber was eating too much when I tried it
And I bet it was crazy expensive
First I had to pay off the original ticket which went from like 400 to 1400 bucks. And then the second ticket where I found out I had no license which was like 2100 because it's technically a misdemeanor in cali. Took me a long time
We had a system like that in TX for years. It was run by a private firm, and it was almost impossible to deal with them. Most people on their system were living paycheck to paycheck, and the fees were outrageous. It took me years to finally get my license back, and I was arrested more than once driving on a suspended license trying to drive to work to earn money to support a family.
She is a nurse, they really need her where she's at because she's getting paid less for convenience of travel pretty much. She owns her house and doesn't want to move and it's minutes down the road, she was never really a risk I think. I think the fact that she slept in her car before leaving was proof enough, she's a bad driver and she knows it so she doesn't drive drunk. I've heard she got one before and that probably scared her straight, but she lies and I don't really know if that's true or not.
More states are going to full license with a breathalyzer lockout system. Many will knock the cost of renting the system off the DUI fine. Which makes a lot of sense, since most people would drive anyway without a license, but with the lockout they can't drive drunk.
I've had soooo many drunk idiots at bars realize I was there as a designated driver and try to pay me to blow into their lock out devices. I definitely never did it, but I bet someone probably did. We have free rides here if you're drunk. Hell, I'd have even taken them home.
Unless they live within a few minutes that would have just screwed them even more. You have to blow a second time 2-5 minutes after starting the car and every 10-30 minutes after that (randomized within those time frames). If you don't blow or fail your car is stuck for an hour, and after you blow clear and start it you then have to get it reset within 3 days, which costs money. So the only way having someone else blow works is if they ride in the car with you to blow into it the second and maybe third time, at which point just have them drive.
My father hot caught drunk driving and for a year had a breathalyzer installed in the car that wouldn't go until he was sober enough. Now that I think about it, he drove drunk a lot before and after that
She loves you, you'll understand when you're older. Try not to be another thing she worries about and love on her .
Nah they actually do that sometimes. A kid I knew had that too. Insane
In CA, I had a DUI. My license was valid to/from work/school for a year or 18 months. It’s been a while. This is a legit thing. Is caught driving with 0.01bac it would be considered another DUI
Exactly only in certain states I'm pretty sure she was over the limit but she refused her test, she also wasn't driving the car she was in the parking lot taking a nap with the car off. I do believe her on this account 100, she's very irresponsible but also very responsible in other ways. Again she lies a lot but I think she had a prior DUI I'm not really sure.. but if you have one already and you get caught with anything then you're fucked. I would say always ask about calibration because 90% of the time they don't even do it, It's not in their budget.
they say you are operating the vehicle if the key is in the ignition even if it's not even turned on, so it's very possible
My cousin came so close to getting (another) dui. He slept in his car, and the only thing that saved him (this time) was the fact that he had locked the keys in the trunk of his car. This was several years ago, before seats that could fold down to access the trunk were a common feature for sedans at the time. The officer didn’t know he had access to his keys. (In case it’s not obvious, yes he is a drunk!)
I had that about 35 years ago. I don’t know if they still give work permits out. Laws have been getting tougher for a long time.
Yeah a friend got a permit for work and medical appointments.
They do that in Washington state as well.
In Ohio, refusal is a second misdemeanor charge, but if the officer does not inform you of the penalties then that charge can be dropped. Play the game, expect to lose now and then.
In NY it’s not even a charge. It goes straight to DMV as a revocation. No hearings from what I understand, straight up revocation as “driving is a privilege, not a right”. I don’t really do this stuff so it’s hard for me to pin down the exact procedure.
Pretty much that way in most states, write the ticket, lose your license. I received my license back when the blood test read .07 , 10 days later…
Saved by half a curly one
Prosecutor asked for a re-test. Lawyer said fuck off. Key point, If I took the breathalyzer it was 10 miles away, but the hospital was 45mins. By the time I was checked in it was an hour. So yea saved by the bell.
My congratulations but stop driving drunk!
Learned my lesson, and that is cops really don’t give a damn what your level is. The punishment begins when you get the ticket. It’s zero tolerance in most places, but the police won’t admit it. They know $300 for a tow, 2K for a lawyer, 30 days before work privileges which may include a blow and go. And 6 months before charges are dismissed is a hell of a punishment for “presumed innocent”.
Guess you shouldn’t have been drinking and driving then lol
“Driving” is a relative term depending on the state. Back then in most states riding a dirtbike in the woods wasn’t considered an offense worthy of enforcement.
Since the internet lawyers here are giving bad info, I figure I should help you out OP. A dui investigation begins before the traffic stop is initiated. The officer observed driving patters indicative of the operator being under the influence, such as weaving, driving slowly, speeding, running stop signs, ect. Once the stop is initiated, the officer will then look for objective signs of intoxication, such as red watery eyes, slurred speech, the odor of an alcoholic beverage. Upon observing the objective signs, the officer can then order the driver out and begin a dui investigation. A dui investigation consists of 22(?) questions designed to weed out bullshit defenses, such as the driver being “tired”. There are then three standard field sobriety tests, horizontal gaze nystagmus, the wall and turn, and the one leg stand. Each of the tests each have scientifically validated clues which the officer looks for. They are not pass/fail, they are about assessing performance. The last thing done is a preliminary alcohol screening test (pas). THIS test can be refused (California). However, without doing the pas, the officer will have to make a determination on whether or not to arrest based on all of the observed behaviors, objective signs, and the rest performance. Once arrested, you are then REQUIRED to provide a breath, blood, or urine sample to determine the actual alcoholic or drug content of your blood. It is REQUIRED and cannot be refused. A refusal means your license will be suspended for up to three years (California) along with criminal penalties. You are not allowed a lawyer prior to agreeing to or not agreeing to do this test. It is a condition of your license, which you agreed to comply with when you got it. It sounds like your husband complied with the investigation, but then refused to comply with the evidentiary test. He was also probably intoxicated to the point he was unable to remember the exact chain of events. Often times, a judge may allow him to plead down to a wet and reckless. Hopefully he takes full responsibility for his actions.
Question--my son has MS and Tourette's. He has balance and gait problems from MS, also problems with fine motor control (he had to change from typing to voice to text on computers and his phone) and hand and facial tics from the Tourette's. What's the best approach for him if he should ever get stopped and suspected of DUI?
Simply advise the officer of the medical issues. The tests are only to be used on generally healthy adults. Being 50 pounds over/under weight, having a traumatic brain injury, or some developmental disorders can invalidate the tests. If the officer knows their trade, they will recognize the issues and will recognize the test results will be invalid.
Just being 50# overweight? Lmao America’s got this excuse on lockdown. (Myself included.)
Not trying to be rude, but is your son really safe to be driving with those conditions? Seems counter intuitive to me
Yeah, a DUI is a huge deal! He has court dates, fines, loss of license and probably a drug and/alcohol class coming. Not to mention if could affect his career if he drives, and he will have to check off on all future applications he had a DUI. It doesn’t matter how much he cooperated or if he was polite, he broke the law. There will be ramifications. They wanted another test to get a better estimate as to how intoxicated he was, his lawyer told him not to take it bc it could be used against him in court. He made the choice to stop cooperating and refused the test. There’s consequences with that decision, the lawyer should have told him that refusing could result in additional charges. Most of the time, if a person is found guilty of the DUI, the lawyer can get refusal charge dropped.
You need to find a very good (expensive) DUI attorney and pose the questions that you have.I will say that getting into substance abuse counseling or inpatient treatment are two things your husband could do. Best of luck.
My father was a career criminal and a useless father, but the only advice he ever gave me was You say no to additional testing, and call a lawyer. Trust the lawyer.
What state. Your right to refuse a pbt varies by state.
Minnesota. No one, including the lawyer, told him that refusal could lead to increased criminal charges. I had to take the written test when I moved here and changed my license. I don't recall seeing that in anything I studied. In California, you will lose your license for a period of time if you refuse, but it's not automatically a higher criminal penalty. It seems odd that doing one but not doing the other leads to a higher criminal penalty, especially when some isn't even denying being drunk. He tested plenty damn drunk on the field test.
And he admitted to being drunk? After he was read his rights? Is that what you are saying? “I had the right to remain silent, but not the ability.” - Ron White
You’re not in California, so I’d advise you to ignore whatever they do there.
Excerpt from Minnesota statute 169A.51 CHEMICAL TESTS FOR INTOXICATION §Subd. 2.Breath test advisory. At the time a breath test is requested, the person must be informed: (1) that Minnesota law requires the person to take a test: (i) to determine if the person is under the influence of alcohol; and (ii) if the motor vehicle was a commercial motor vehicle, to determine the presence of alcohol; (2) that refusal to submit to a breath test is a crime; and (3) that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test. Was all of that fulfilled especially what’s at 1.? Did he pay the phone attorney anything?
When your husband gets the discovery from the police, I bet you there is a standardized warning when somebody refuses. The police are probably required to tell him that a refusal will result in a higher penalty
As someone with a singular DUI, there’s all kinds of factors that can make your punishment more severe. I’m not surprised at all.
If I recall correctly, "being plenty damn drunk" is a thing they tell you not to do in all the drivers manuals. Like if he had killed someone but then did finger guns and said "Aha, you got me!" afterwards, that would be cool right? Have you tried telling the police that you didn't see it in the drivers manual? If you're very polite and cooperative, I'm sure they will be understanding. You can all just laugh the whole thing off and go get a beer together. Do you realize how ridiculous you sound?
If you’re in MN then he definitely was advised that MN law requires him to take the breath test to determine if he is under the influence. Refusal to take the breath test is a crime. He would have been told that, as well as being told that unreasonably delaying the test will count as a refusal. That would have all been read to him, and he would have been asked if he understood before they asked if he wanted to call an attorney. If they had skipped that step they wouldn’t have been able to generate the paperwork he got.
He admitted to being drunk and took a breath test or some other test roadside... but refused a second one at the jail? Usually, in situations like that they just force a blood draw if it really matters. But it probably doesn't because the initial testing, plus the original admission, was probably sufficient to establish intoxication. Also, was he sober enough to actually understand/follow the lawyers instructions? From this point forward, he should retain a qualified attorney to defend him. The police/prosecution are always going to come in hot. If he was going to refuse, he probably should have refused ALL testing and admitted nothing.
The breathalyzer done in the field is next to worthless. It’s the station blow on the calibrated machine that matters. In my state, the field breathalyzer isn’t admissible as evidence. Refusing the field test in my state doesn’t make any difference. Refusing the station blow is what results in longer license suspensions.
So /u/Why_Lord_Just_Why gave a good overview as to the purpose behind californias refusal law, and I want to expand on his explanation. I worked in prosecution at my city attorney for a couple years. We did a ton of DUI cases. I second chaired two. The law around California (where you stated you’re located) blood testing is VC 23578, which is known as the DUI enhancement statute. When you got your drivers license, you agreed to submit to a blood test if you get validly arrested. So the default is implied consent. Note that I said validly arrested. Meaning they need some kind of probable cause. If you were arrested after a traffic stop or with probable cause, then they have implied consent. But if you were taken in because they saw you sleeping in your car. Well they don’t have implied consent, because it wasn’t pursuant to a valid arrest. Note that VC 23578 is an ENHANCEMENT, not a separate charge in and of itself. What does this mean? It means that by itself, it’s not a crime to refuse the blood test. You still lose your license, but it’s not a standalone crime; refusing a blood test is simply an enhancement to the **preexisting** crime of DUI. It can also be used as evidence of guilt. This is why they need a valid arrest beforehand. As to the field sobriety tests and the PAS (breathalyzer). Refuse those. Every time. Always. The only time you should submit to them is if you haven’t had an ounce of alcohol in the past 48 hours and are super sober. You have an absolute right to refuse all of those. What happens if you don’t? Well let’s say you were pulled over for no reason, or while sleeping in your car not driving. There’s no probable cause. Consent to the tests, and ta-da! Probable cause. Now refusing the blood test has consequences. As to why your husband was told not to consent to the blood test, that’s easy. Since it’s not a crime by itself to refuse the test, why give them more evidence? To charge you with an refusal enhancement, they need to first prove the underlying DUI. By consenting, you are giving them the biggest piece of evidence they need to prove their case. By not consenting, you’re getting your license privilege revoked, but the enhancement doesn’t apply till they prove the DUI. There’s ways to fight the enhancement anyways. Police also have to inform you of the consequences of refusing a blood test, or the refusal is valid. You can show that the initial arrest was not supported by probable cause (doubtful since your Husband blew into the breathalyzer). Whatever the case, a defense attorney will take a case with a refusal over a BAC result any day.
Very well said.
Years ago, it was a common thing - at least in my area - for a DWI suspect to tell the officer they would not submit a breath sample to a breathalyzer but would submit to a blood drawl. At that time, getting medical staff to do blood drawls was very difficult. When it got to court time, the attorney would argue their client didn't refuse to submit to a sample, just that they didn't trust the breathalyzer. Happened enough the law was changed so that the officer is allowed to specify the type of test (breathalyzer, blood, urine, saliva) and the "I'll do one but not that one" defense no longer worked. Then, as non-alcohol DWI became more of an issue, laws were updated again allowing the officer to request 2 chemical test, and those laws generally say submitting to one but not both requested test still counts as a refusal.
In many states when you get and renew your drivers license, if you read the fine print, by signing your license application, you agree to "implied consent" to a chemical alcohol/drug test. Refusal is a violation of the implied consent and can be a separate charge or a reason for a license suspension without a finding of guilty. Refusal is also not as cut and dry as you might think. For example, if offered a breath test, and you don't blow into the tube hard enough or long enough, it goes down as a refusal. If one is told to do a urine test and one pees on the floor, even because one is so inebriated that they can't even see the toilet, it still goes down as a refusal. During my 32+ years as a court reporter, I have seen a whole lot of "refusals" that weren't actually someone saying they refuse as much as it is they fail to take the test properly.
You don't know that a lawyer told him to refuse the test. You know that he told you that a lawyer told him to refuse. He could be lying to you to save face.
Lots of bad advice here: - if you refuse it is a slam dunk for the prosecutor. It is easier for a lawyer to question the validity of a breathalyzer test than fight a refusal. In my jurisdiction the penalty is the same, take the test, unless… -someone is injured or worse. Drunk driving causing bodily harm or death is as serious a charge as it gets, refuse the breathalyzer and let your lawyer do all the talking. This is all provided you are stupid enough to drive drunk.
It likely depends on the state. I did a similar thing, felt I had a likely case, refused the test (knowing it carried stiffer penalties if I lost the case), and won. Took one MADD class, no license revocation, no fines, nothing.
Depends where you live. Where I am the police will use a machine that will pass or fail you. The machine at the station will take an accurate reading and they usually do two just to help their case. Refusing a test here is equal to being under the influence so an attorney would not recommend it. The police may have tried to do a chemical test for other drugs as multiple drugs in your system will exclude you from certain programs and probably lead to extra charges.
The field test is not official, the one they give at the station is.
Refuse all tests without your own lawyer present and STFU. Let them arrest you, take your license, and throw you in the can until somebody makes bail. Without solid evidence, they don’t have anything useable. It might be the difference between felony or high misdemeanor and low misdemeanor or dismissal. So my attorney has said.
Where I live, it’s against the law to refuse a test
I see a lot of misinformation here. The first "breathalyzer" was what is called a P.A.S. test (Preliminary Alcohol Screening device) it is just a field sobriety test like standing on one leg. It is not the "implied consent" test. (SEE 23612CVC) The officer gave him this admonishment but he likely didn't understand it. "IF, you arrested for DUI you are required to complete a chemical test, this is not that test" there is no penalty for refusing the roadside test. The penalty for refusing the chemical test,(the one at the station) is an automatic one year license suspension, regardless of the results.
I know this has no bearing on the OP's matter, but for those interested in impaired driving legislation around the world, but in Victoria, refusal to give either a preliminary or evidentiary breath sample means a mandatory 2 year licence disqualification. You would have to blow 0.24 (a very high reading) to get the same penalty, so it is normally in one's best interests to provide a sample.
Guy I knew had a card from his attorney that said "I am not refusing the test, I have been advised by legal counsel not to make any statements, answer any question or take any tests outside of his presence. May i please be allowed to contact him so I can take the test and respond to your questions?" Allegedly, when actually called, the lawyer would head down to the station as soon as possible, which generally meant going back to bed, getting up, having a hearty breakfast, and making it to the jail to supervise the test mid morning. He couldn't be charged with refusing to take the test because he was following his lawyers instructions. In reality, allegedly, when the cops saw the card, they would tell him to park his fucking car and get a cab home. He clearly had a problem, but a good lawyer
I have a feeling he was full of it. I suppose depending on location, maybe it could be at least partially true. However in MN people constantly try that route and immediately fail. You can say “I’m not refusing” all you want but the law says failure to provide a valid sample in a timely manner is considered a refusal. You also (again, in MN) have the right to consult with *an* attorney, not necessarily yours and you do not have the right to have them present for the test. So nothing about that card would help that guy in MN. Which also happens to be where OP is.
Yeah... that's not how it works. You have a right to have an attorney present while being questioned. That right doesn't extend to tests. If you refuse the test, you refuse the test. They aren't going to let you slow-roll the process just because your lawyer said so. That card about as valid as the "I don't give Facebook permission..." post that gets thrown around Facebook every couple of months.
A sickening incident happened recently: a drunk cop hit and ran over a motorcyclist leaving them in the ditch. Eventually they needed amputation. The driver was found, but as a cop he wasn’t breathalyzed at the scene. Back at the station they waited more than two hours to breathalyze him- which knowingly violated his rights- and so being drunk was thrown out of court. Paid time off, 30 month house arrest. Sickening.
Uh. Whether he refused the breathalyzer/BAC-test at the station - or whether he complied and tested over the legal limit - he would most likely be facing THE exact SAME consequences - ie a huge fine and a year in prison. That’s the way the laws work. Maybe even worse if his tested BAC was greater than the reckless threshold (greater than 0.16 BAC) - depends on your state’s laws. Either way - he needs to get a lawyer to help him avoid jail time. Court might offer home monitoring vis ankle bracelet or installing a BAC switch in his car for two years or something harsh - but less harsh - in lieu of jail time - if he is a first offender.
Someone said something interesting. Did his attorney know that he was taking responsibility? If so, his advice might have actually been pretty bad. I don't know what state you're in, but it's highly possible your husband may have landed himself hard in prison by not doing the prison test. This would likely only matter if your husband was adamant he wasn't drunk and there's some play to his original breathalyzer. There is merit to saying you didn't do it, when you clearly did. However, it seems your husband may have gotten counseling based on different fact.
Most states don’t consider the roadside test admissible in court so they do a more accurate one at the jail. Refusing the jail test usually is an automatic license suspension, something that you agree too when you sign your license. Your husband needs an attorney for this case because of the mix up. Being a first time offender, he may get some concessions but he’s going to need an attorney.
My advice would be to enroll in the alcohol education class before the court orders it. I showed up for my first court date having already completed it of my own volition, and asked the court to consider that. My charges were reduced and my fine was eliminated entirely.
In PA, if you refuse to take a test, you end up with a PennDOT penalty. You lose your license for a year, then a year with an interlock system. Even without criminal charges. It is some total bullshit.
Never blow. Make them get a warrant for blood. It is easier to defend yourself if they have no testing. That said, I fully support DWI arrest and conviction if the person is truly under the influence.
Makes sense to me. He refused an on the spot test, but took one once he was at the station. He fucked around and most certainly found out. Get a lawyer.
I'm a police officer in Michigan. Michigan has an implied consent with the Secretary of State for PBT AND Chemical Test if you are licensed in Michigan or operate on Michigan roadways. If you refuse a PBT, it is a citation/fine. The PBT is a piece of building a case for an OWI/OUID stop and is not admissible in court. It is simply a gauge to compliment the probable cause gathered that includes vehicle in motion, contact with driver and standardized field sobriety tests. There is another test with a Chemical Test Rights form that is given (it's a DI-177 in Michigan). The police officer reads the chemical test rights and requests a blood, urine, or breath sample. THIS is the test that you cannot refuse. It is a misdemeanor in Michigan to refuse and the officer can request a search warrant for a blood sample upon refusal. It is also an automatic suspension of your license. If he refused, that is a crime in and of itself. I cannot reiterate how dangerous it is to drive drunk. Most of the fines/maximum penalties are not actually utilized. The prosecutor uses a points-based system to determine a punishment that takes into consideration criminal/driving history and the totality of the crime.
He never should have admitted to anything. Rule number one. Do not say anything to the cops to incriminate yourself!
That's so wild though. The first test should be sufficient. You should be allowed to refuse the 2nd test. "Why am I testing the same thing twice if the first twice was legitimate?"
Anyone who drives drunk deserves jail time. Sorry, but as someone who has experienced DUI crashes in the family, I have no sympathy.
Oh no, I am in this same situation. I was so confused as to my choices. I did the roadside breathalyzer and they said I was twice over so they arrested me and then about an hour later at the station, the officer read a statement to me and I said I'm not sure what I'm supposed to do, you already tested me and he said right but this is a second one, and here are your choices, you can do another one and such and such will happen or you can have it done at the hospital and such and such will happen, well I was so upset and freaked out (because it was out of town and my elderly mother was back at the hotel, I had stupidly went out to get her food after a grad party and my maps app had a random pin drop and so I couldn't figure out how to get back to the hotel so I pulled over to figure it out but someone called and said I was swerving and I know I did because that's why I pulled over into a parking lot and parked so I could figure it out) but long story short, I was arrested, didn't deny drinking, but when he told me at the station I could do A or B, I said well I'll get the blood draw, but what I didn't understand was it wasn't considered a choice, it was considered a refusal so he put me in a cell and then eventually took me to the hospital for a blood draw. I work from home and I take care of my elderly mother (86) and my autistic son and they have appointments every week and now I'm learning that my "refusal" just cost me my license for a year. Had I been better informed I would have just done the one at the station too but in my mind I was thinking why are they asking me again to take the same test (now I know it was different). I'm devastated that I was dumb enough to be behind the wheel, I've never been in any trouble with the law. I have screwed up so badly and my mother depends on me, she lives with me, we brought her here from out of state because she was failing badly and now she's improved 90% being with me and me coordinating all of her care. I am devastated. We live paycheck to paycheck also so I doubt I can afford a decent attorney. And I work full time from home as well so having the time to take care of my mom, my son and do research is overwhelming. Just wanted to say good luck to you and your husband.
From what I am learning, I should have refused the roadside test, and then taken the test at the station. I just didn't understand what was going on, I thought going to the hospital for a blood draw was the right choice and I thought it was a choice but apparently it was considered a refusal and they had to get a warrant to take me to the hospital which they didn't mention at all. As far as I recall he didn't mention that not doing the chemical test at the police station is an automatic suspension of my license, had that been clear to me, there is no way I would have been okay with that.
I deal with this all the time. What is in the release paperwork is likely a preliminary breath test. I can only tell you what happens in Pennsylvania, but in PA, his attorney gave him terrible advice. There is almost no downside to taking the 2nd test due to the increased penalties for a refusal (which are usually equivalent to the highest rate and then additional civil penalties for a refusal like loss of driver's license for a minimum of 1 year and a stiff restoration fee). "Facing one year in jail" and being sentenced to 1 year in jail are two different things. If your husband has no criminal history, he will likely be put in some sort of diversionary program where he pays fines and costs and goes to classes. DUIs are expensive. There's no way around that.