[ARCHIVED THREAD] - Refusal of DUI test (Page 1 of 5)
Posted: 12/15/2011 11:23:19 AM EDT
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I know that laws vary from state to state but in general can you now be legally obligated to submit to a blood or breath test...It is my understanding in some sates you can now be detained while a warrant is obtained and then blood samples can be taken from you...I am not debating the moral obligation to not drink and drive I am questioning the methods of obtaining sample and right of refusal that apparently is now gone...
No refusal BAC testing "No refusal means that drivers suspected of DUI are required to submit to either a breath test to determine their blood-alcohol content or a warrant for a blood draw will be issued. In Columbus, two local judges were on call to sign the warrants for those refusing breath tests. Anyone who decided not to take a breath test was taken to the hospital to wait for the warrant and have a nurse forcibly draw a blood sample, according to the Columbus Dispatch" |
| In [insert colorful phrase] Illinois, a judge can issue a warrant for your blood and you can be forcibly held down and have your blood drawn if you do not voluntarily submit. I believe it takes a case-by-case warrant by the judge, and yes, the cops have been bringing along judges or keeping them on hot standby. HTH. |
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If you don't want to agree to give breath samples, then dont take the license..as for the blood?? I think most places have gone full retard on that issue. We can't get a warrant for blood unless there's a fatality or major injury, and we have caselaw that says we xant forcefully take blood. Posted Via AR15.Com Mobile |
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I think the term "no refusal" isn't really correctly applied here. It's not a forced sample being taken in this case.
But, "Consent to the test or refuse and if there's PC to obtain a search warrant for your blood, breath, or urine we'll do so" isn't as snappy of a slogan. Funny thing about search warrants when probable cause exists. That silly fourth amendment... |
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They only times I've ever seen them do a forced test here was with a major accident with fatalities, then they'll get a warrant for blood. By statute we can do forced tests with fatalities or serious injuries without a warrant. We'll usually still get one. Makes the lawyers happier. Get the judge on the phone and have it knocked out in no time, submit a paper warrant as soon as practical. |
| in OK if you refuse to take the breathalizer it's goes down as chemical refusal which results in the same as a dui; you can ask for a blood test but from my understanding it results in a high blood alcohol reading which makes it harder for your attorney to get any plea deal or lessening of charges. |
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If you don't want to agree to give breath samples, then dont take the license..as for the blood?? I think most places have gone full retard on that issue. We can't get a warrant for blood unless there's a fatality or major injury, and we have caselaw that says we xant forcefully take blood. Posted Via AR15.Com Mobile Pretty interesting point. Driving without a license is a fairly minor offense compared to a refusal. It's not like driving a suspended license or anything like that. ETA –– I think many states closed that loophole many years ago though, by making it a law that the act of driving on a public roadway gives your implied consent. |
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I know that laws vary from state to state but in general can you now be legally obligated to submit to a blood or breath test...It is my understanding in some sates you can now be detained while a warrant is obtained and then blood samples can be taken from you...I am not debating the moral obligation to not drink and drive I am questioning the methods of obtaining sample and right of refusal that apparently is now gone... No refusal BAC testing "No refusal means that drivers suspected of DUI are required to submit to either a breath test to determine their blood-alcohol content or a warrant for a blood draw will be issued. In Columbus, two local judges were on call to sign the warrants for those refusing breath tests. Anyone who decided not to take a breath test was taken to the hospital to wait for the warrant and have a nurse forcibly draw a blood sample, according to the Columbus Dispatch" No. Those ARRESTED not those suspected. |
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I think the term "no refusal" isn't really correctly applied here. It's not a forced sample being taken in this case. But, "Consent to the test or refuse and if there's PC to obtain a search warrant for your blood, breath, or urine we'll do so" isn't as snappy of a slogan. Funny thing about search warrants when probable cause exists. That silly fourth amendment... Yep. The article makes it sounds like the cops are drawing blood from anyone who drives after a couple beers. That's not whats happening, |
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Quoted: You are already under arrest for DUI. Yep. Here in NY, you get two charges normally with a DWI. Driving While Intoxicated, meaning driving while intoxicated by ANY drug or alcohol, and a more specific charge of Driving with a Blood Alcohol Content of .08 or Greater. If you refuse a test, you will still be charged with the first crime, even though you can't be charged with the second. The officer's observations about odor of alcohol, bloodshot eyes, slurred speech, field sobriety tests, etc, will generally be enough to convict. But here's the rub - you generally will get the same deal from the DA whether you are charged with one or both, so you don't gain anything by refusing. As a matter of course, pretty much all first time DWIs of .15 or less in my county, assuming no accident, get reduced to DWAI, which is a violation, not a misdemeanor, and comes with a 90 day license suspension. If you refuse, your license will be suspended for one year by the DMV - and there's pretty much nothing your lawyer can do about it. So not only do you end up with the same plea deal, but you get a longer license suspension. In other words, you're MUCH worse off refusing a test in NY, which is why I always tell people to take the test. |
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While I recognise that legally, driving is considered a privilege and not a right, as a lover of liberty, I find this idea troubling.
Frankly, the idea of drivers licensure in and of itself is a bit questionable. I understand the need for competence when operating a motor vehicle, but is it the governments role to be the judge of competence? I dont have a problem at all with the police making a traffic stop based on probable cause...someone swerving, or in general, operating their vehicle in a dangerous manner is cause enough for me to justify a cop making the stop. The concept of checkpoints for 'random' screening just seems a bit Orwellian to me. Put yourself in the position of someone who is being detained for simply refusing to cooperate with a given line of questioning....the police (in some places) have the ability to get a warrant to ORDER YOU to provide a sample of your blood for 'testing' purposes. Seriously...I get that the Bill of Rights doesnt explicitly grant us the right to free travel, but I will offer that maybe that is because at the time of its creation, the idea that our government would restrict the ability for citizens to travel freely was so far beyond rational thought that it simply wasnt considered...and was taken for granted that free men could travel as they please, without impedance from the government. Along similar lines, I have major issues with the state department telling me where I can and cannot travel to, but that is a topic for a different thread. Yes...I have a problem with the active and intrusive nature of requiring submission to testing at checkpoints. Few people are as staunchly against DUI as I am....I really hate (yes, I actually hate) people that risk innocent citizens because they greedily take it as their right to drive while blitzed on alcohol or drugs....that said, I dont conceed the right to travel freely just to stop them from doing so. No different than adopting gun control to mitigate shootings. |
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You are already under arrest for DUI. What about DUI checkpoints where there's no other reason for the stop? My understanding is that the PBT administered at roadside IS NOT the breath test referred to in the law. The one to which all drivers give implied consent when accepting a driver's license. My understanding is that an actual breathalyzer/chem test is performed by a different machine, usually at the station under controlled conditions. Is that true? I was always taught not to participate in any of the roadside prancing/alphabet games because all you can do is incriminate yourself. |
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They only times I've ever seen them do a forced test here was with a major accident with fatalities, then they'll get a warrant for blood. This. I wouldn't know without looking whether the law allows forced blood draws for lesser incidents here, but this seems to be the only situation where they do it in reality. If you're just stopped for a busted headlight or swerving, with no accident, and you refuse - then they just charge you with refusal in addition to the DUI. |
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what happens if there is a forced blood draw and you come back at 0.0 BAC? Questions like this one show that inspite our best efforts over the years people are still confused about this topic. mcantu's question implies that he believes the blood test is to determine the drivers BAC when it fact it is to prove the prisoners intoxication. Its post arrest evidence gathering not pre arrest investigation. |
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DUI and you will have a blood draw if you refuse a urine / breath test. No warrant, no judge just a trip to the blood draw room (SDPD) or at the jail. Refuse and you lose your license. The cop takes it on the spot. I have never seen a successful refusal for a blood draw despite all of the shit talking and posturing. In the end, the drunk is poked and the blood is sent to the lab. |
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You are already under arrest for DUI. Yep. Here in NY, you get two charges normally with a DWI. Driving While Intoxicated, meaning driving while intoxicated by ANY drug or alcohol, and a more specific charge of Driving with a Blood Alcohol Content of .08 or Greater. If you refuse a test, you will still be charged with the first crime, even though you can't be charged with the second. The officer's observations about odor of alcohol, bloodshot eyes, slurred speech, field sobriety tests, etc, will generally be enough to convict. But here's the rub - you generally will get the same deal from the DA whether you are charged with one or both, so you don't gain anything by refusing. As a matter of course, pretty much all first time DWIs of .15 or less in my county, assuming no accident, get reduced to DWAI, which is a violation, not a misdemeanor, and comes with a 90 day license suspension. If you refuse, your license will be suspended for one year by the DMV - and there's pretty much nothing your lawyer can do about it. So not only do you end up with the same plea deal, but you get a longer license suspension. In other words, you're MUCH worse off refusing a test in NY, which is why I always tell people to take the test. Bushboar, are you a lawyer? Please see my post above and the link below. I'd like to hear your input on this: http://www.owidefenselaw.com/breath/refusal.html A PBT and a breathalyzer are 2 different things. Have you ever heard that before? I don't think we NYers are under any obligation to blow into that portable device the cops use at roadside. My understanding is that refusing a PBT in NY is a ticketable offense only (for obstruction or something). Refusing the chemical breath tester at the station is the one that results in license suspension. |
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A lot of states have implie consent. One of the conditions of you being issued a drivers lisence is that you wi submit to PBT/blood, breath or urine. Yup. Don't want to submit to the tests then don't drive and don't drink. To answer your question if you don't want to submit then we will get a warrant, there is no right of refusal.... "No refusal means that drivers suspected of DUI are required to submit to either a breath test to determine their blood-alcohol content or a warrant for a blood draw will be issued. In Columbus, two local judges were on call to sign the warrants for those refusing breath tests. Anyone who decided not to take a breath test was taken to the hospital to wait for the warrant and have a nurse forcibly draw a blood sample, according to the Columbus Dispatch" |
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You are already under arrest for DUI. Yep. Here in NY, you get two charges normally with a DWI. Driving While Intoxicated, meaning driving while intoxicated by ANY drug or alcohol, and a more specific charge of Driving with a Blood Alcohol Content of .08 or Greater. If you refuse a test, you will still be charged with the first crime, even though you can't be charged with the second. The officer's observations about odor of alcohol, bloodshot eyes, slurred speech, field sobriety tests, etc, will generally be enough to convict. But here's the rub - you generally will get the same deal from the DA whether you are charged with one or both, so you don't gain anything by refusing. As a matter of course, pretty much all first time DWIs of .15 or less in my county, assuming no accident, get reduced to DWAI, which is a violation, not a misdemeanor, and comes with a 90 day license suspension. If you refuse, your license will be suspended for one year by the DMV - and there's pretty much nothing your lawyer can do about it. So not only do you end up with the same plea deal, but you get a longer license suspension. In other words, you're MUCH worse off refusing a test in NY, which is why I always tell people to take the test. You forgot to mention that the administrative law judge at the refusal hearing could suspend the offenders license for up to 18 months. I'm not sure if thats in addition to what local the court decides or not. But I have seen the offender get suspended for 18 months before their first court appearance ( after arraignment). |
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Quoted: Quoted: what happens if there is a forced blood draw and you come back at 0.0 BAC? Questions like this one show that inspite our best efforts over the years people are still confused about this topic. mcantu's question implies that he believes the blood test is to determine the drivers BAC when it fact it is to prove the prisoners intoxication. Its post arrest evidence gathering not pre arrest investigation. let me rephrase then...'what happens if the results of the forced blood test show no intoxicating substances?' |
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I refused and they were nice enough to give me a bed to sleep in that night. Released the next morning, Easter Sunday, after the step dad called the judge. No, I wasn't drunk, nor had I been drinking. This is exactly why I started the thread.... Driving down the road and come upon a DUI checkpoint.....Officer right or wrong chooses to detain...the judge is called and blood is now forcibly being drawn...no right of refusal...its not an option to refuse and simply suspend driving privileges until it is adjudicated... |
| It's bullshit. They don't do it here, and if they start, I will no longer live here. CO is a pretty free state, but not free enough for me on a lot of things. I'm planning my exodus from anywhere near fucking Boulder or Kali immigrants. CO is apparently too warm for them, time to move to MT. |
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If you don't want to agree to give breath samples, then dont take the license..as for the blood?? I think most places have gone full retard on that issue. We can't get a warrant for blood unless there's a fatality or major injury, and we have caselaw that says we xant forcefully take blood. Posted Via AR15.Com Mobile Pretty interesting point. Driving without a license is a fairly minor offense compared to a refusal. It's not like driving a suspended license or anything like that. ETA –– I think many states closed that loophole many years ago though, by making it a law that the act of driving on a public roadway gives your implied consent. Only works once here though if you have no DL I generate a number for you, which then gets suspended as a penalty of the driving without a license as well as the DUI..can't speak as to how other states do it however. of course you COULD do what our umm "Undocumented Workers" do, and just give a different name and info every time and get new DL numbers generated..until of course you run into someone who's had you before...Been there done that, the little Guatemalan dude forgot about me..but I didnt forget about HIM 
Posted Via AR15.Com Mobile |
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Sat on a jury for this in KY. The whole question was whether the defendant refused or not. The Judge instructed us that the act of refusal was to be treated as guilt by law. So as I understood it, there was no need to force a test, refusing was equivalent to guilt anyway. The kid was claiming that he never refused, he just asked what his test options were.
The kid got off, the test administrator at the station gave testimony that conflicted with records (showing he processed 2-3 people in the same span of time that he testified to only process the kid himself with full concentration). He was the only one available who could have verified that the kid refused the test, so it was documented mistake vs. claim of the defendant. It was pretty interesting. Most of the jurors couldn't even read the Judge's instruction on points of law and what we were to determine, or that the arresting officer only did a field sobriety test and would have no knowledge of whether the kid refused back at the station... they kept insisting that they "heard what he drank and he was prolly DUI" or "that little rich white boy just trying to get away with it" or "I can't believe we're just going to ignore the testimony of the arresting officer." They even tried to ignore the instruction that we first determine guilt or innocence before any sentence would be considered... there were people suggesting that we could somehow compromise and say guilty but time already served. All of this with simple instructions from the Judge right in front of us. Amazing. They absolutely did not comprehend innocent until proven guilty beyond a reasonable doubt. |
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what happens if there is a forced blood draw and you come back at 0.0 BAC? Questions like this one show that inspite our best efforts over the years people are still confused about this topic. mcantu's question implies that he believes the blood test is to determine the drivers BAC when it fact it is to prove the prisoners intoxication. Its post arrest evidence gathering not pre arrest investigation. let me rephrase then...'what happens if the results of the forced blood test show no intoxicating substances?' Then the cops scrwed up big time, so did his supervisors and the judge. The arrestee has a good false arrest civil suit on his hads AFTER he gets checked out for whatever bizarre medical condition caused everyone to believe he was impaired by drugs and alcohol. I've had the occasional prisoner swear they were not under the influence. I always tell them. "then you need to get straight to a hopsital as soon as you get out of jail because you have some new disease that mirrors intoxication" |
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Quoted: Then the cops scrwed up big time, so did his supervisors and the judge. The arrestee has a good false arrest civil suit on his hads AFTER he gets checked out for whatever bizarre medical condition caused everyone to believe he was impaired by drugs and alcohol. I've had the occasional prisoner swear they were not under the influence. I always tell them. "then you need to get straight to a hopsital as soon as you get out of jail because you have some new disease that mirrors intoxication" No kidding. I've witnessed a few DUI arrests, and the one thing that was the same about all of them was that there were multiple methods that the arresting officers used, always under supervision and observation of other officers, that left no doubt that they were arresting someone under the influence of ... something. That made me laugh. I suppose that there might be some people who just suck at driving, walking, talking and standing up so much that they appear drunk, but not probable.
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That made me laugh. I suppose that there might be some people who just suck at driving, walking, talking and standing up so much that they appear drunk, but not probable. ...and makes their breath smell like booze, their eyes bloodshot and watery, causes horizantle gaze nystagmus and makes them terrible at basic divided attention tasks. "It might be a tumor" |
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Quoted: Quoted: That made me laugh. I suppose that there might be some people who just suck at driving, walking, talking and standing up so much that they appear drunk, but not probable. ...and makes their breath smell like booze, their eyes bloodshot and watery, causes horizantle gaze nystagmus and makes them terrible at basic divided attention tasks. "It might be a tumor" Heh... |
| Here I believe it is implied consent when you get your license. Refuse, you loose your license. It will also look suspect when you go to court and the nice officer tells the jury how you where slurring your speech, stunk of liquor, and refused to take a sobriety test. |
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Here I believe it is implied consent when you get your license. Refuse, you loose your license. It will also look suspect when you go to court and the nice officer tells the jury how you where slurring your speech, stunk of liquor, and refused to take a sobriety test. I'm sure there will be some Herp and Derp over what i say here..but im used to it. When I do someone for DUI, their arrest is based SOLELY on MY OWN Observations. the actions that led to the stop, any odor of alcoholic beverages, operators speach, hand movements when i ask for paperwork. All of those lead up to my decision to pull him out of the car or not for Field Sobriety Tests. i use 4 tests, Alphabet, a backwards count from 87 to 52, the Walk-and-turn, and a leg-lift. The Breath test once we get inside is ONLY to determine their BAC, I can, and have gone to court and testified based only on my observations and won....however i ALSO have a reputation for not playing stupid games, or dragging every poor schmuck who had had the proverbial "2 Beers'. I've had Breath test readings thrown out because of machine malfunctions...I've had refusals. and i have a solid 90% or so conviction rate. I think the Lowest i've ever done (of an adult) was a .07, and that girl was about 4'3 85# and almost head-oned me going the wrong way on a one-way street, and ven with the low BAC she was FUUUUUUUCKED up. |
