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Posted: 3/16/2006 12:40:55 PM EDT
[Last Edit: 3/16/2006 1:04:50 PM EDT by highdraglowspeed]
So you are taking a Bio Break at your local stop and rob. You see some Barely 21 girls come staggering in drunk for munchies. You say Hi. They are decent and say Hi back. They proceed to get into cars at the pumps as you watch. One in the drivers side and the other in the passenger side of the other car.

You make contact with the drunk driver. She agrees to call someone to come get her. She won't let the driver of the other car that the second drunk gets into move her car because she said that driver was at the same party and is drunk too.

You make contact with the other driver and she is not blotto but has HGN 6 clues not counting vertical. You explain that she needs to call some one. She starts hanging crap on you.

2 Friends show up and agree to take care of said girls. And you leave.

If those girls were to climb back behind the wheel and not let the friends handle it and then take out someone or themselves. Would you have any liability? Your job, or civil?

What say you?
Link Posted: 3/16/2006 1:42:22 PM EDT
I think it would be iffy.
Department may or may not help you out depending on policy. It's getting to the point that you almost have to arrest for DUI because of things like this. However, if you think about it the individual can be bailed out within hours and driving again anyway. That is what makes me think that you might be okay, especially being that you got sober people there to drive them. Really either way you are just slowing them down if they choose to drive intoxicated again later that night.

Just a thought. Anymore they'll tag you for liability no matter what you do, pretty sad.
Link Posted: 3/16/2006 5:50:23 PM EDT
[Last Edit: 3/16/2006 5:52:34 PM EDT by mef223]
What else could you have done? You couldn't make the arrest, just based on them wakling into the store. Sure, they drove to the store, but your narrative did not say anything about you seeing them drive. That's not a fileable DUI in my juris. Maybe on the second driver for being behind the wheel, but it depends.

It's arguable that you would face additional liability for letting them drive, even for a short distance, just to do the stop. What if she crashes and kills someone? Are you not a party to negligence?

Of course, in civil court, some lawyer probably could argue that you would be liable. BUt that's lawyers.

You might have saved somone's life that night.
Link Posted: 3/16/2006 9:40:29 PM EDT
A lot might depend on the state you were in and what kind of qualified immunity you have in that state. It also depends if you could have arrested them in that state for public intoxication or some similar charge. If you had no lawful charge to arrest them, it would be harder to make you responsible.

Although there might not be a good civil case against you, you can bet that some lawyer will try to make a case. He would probably be hoping it settles out of court because the city does not wish to pay the money that it will take to win the case. I have seen that a lot in my area. The city knows that they will be out more money just taking depositions and winning than they will if they just offer a lesser amount to settle out of court. The plaintiff's attorney knows he has no case and recommends the settlement to his client. The officer is not out any money since he did not violate any law or policy and the city's insurance picks up the tab. It is just the way things work.

As for my opinion, I would say that if you allowed the two friends to take them home and those friends were not drunk, you would likely be okay. That is assuming that you were not required by state law or policy to make an arrest and you found them a ride. Would this situation be any different than seeing a drunk come out of a bar with a designated driver?
Link Posted: 3/17/2006 7:15:54 AM EDT

Originally Posted By jeager001:
I think it would be iffy.
Department may or may not help you out depending on policy. It's getting to the point that you almost have to arrest for DUI because of things like this. However, if you think about it the individual can be bailed out within hours and driving again anyway. That is what makes me think that you might be okay, especially being that you got sober people there to drive them. Really either way you are just slowing them down if they choose to drive intoxicated again later that night.

Just a thought. Anymore they'll tag you for liability no matter what you do, pretty sad.


A sad symptom of the disease. Whatever happened to personal responsibility. (note: that's not exactly phrased in the form of a question.)
Link Posted: 3/17/2006 7:18:52 AM EDT

Originally Posted By tvc184:
A lot might depend on the state you were in and what kind of qualified immunity you have in that state. It also depends if you could have arrested them in that state for public intoxication or some similar charge. If you had no lawful charge to arrest them, it would be harder to make you responsible.

Although there might not be a good civil case against you, you can bet that some lawyer will try to make a case. He would probably be hoping it settles out of court because the city does not wish to pay the money that it will take to win the case. I have seen that a lot in my area. The city knows that they will be out more money just taking depositions and winning than they will if they just offer a lesser amount to settle out of court. The plaintiff's attorney knows he has no case and recommends the settlement to his client. The officer is not out any money since he did not violate any law or policy and the city's insurance picks up the tab. It is just the way things work.

As for my opinion, I would say that if you allowed the two friends to take them home and those friends were not drunk, you would likely be okay. That is assuming that you were not required by state law or policy to make an arrest and you found them a ride. Would this situation be any different than seeing a drunk come out of a bar with a designated driver?


Aside from the PI issue (which you already mentioned), that's a great point.
Link Posted: 3/17/2006 8:40:40 PM EDT
In Washington we have a "Physical Control" law that covers someone drunk being in the drivers seat. Everything is the same as a DUI except you don't have driving, just behind the wheel. I have arrested several people for it.
Link Posted: 3/18/2006 9:34:40 AM EDT
[Last Edit: 3/18/2006 9:38:03 AM EDT by cloak-n-carbine]

Originally Posted By hausy:
In Washington we have a "Physical Control" law that covers someone drunk being in the drivers seat. Everything is the same as a DUI except you don't have driving, just behind the wheel. I have arrested several people for it.



Similarly, in MA, you need the "operation" element to effect an OUI arrest......."operation" in MA has, as it's minimum requirement, inserting the key into the ignition while in the driver's seat (this sets in motion the sequence of events that allow operation to occur...according to MA criminal law code). If you do not have this (operation) than an arrest was not possible.

The second thing which could have been done (not saying that it should have been done by ANY means, just adding another possibility) is a PC (Protective Custody), which is done for those who are under the influence of alcohol only (oddly enough, in MA those high on drugs and a danger to self/others cannot be PC'd technically....other avenues have to be sought), and a danger to themselves or others (which would have to be cogently articulated by facts and circumstances, as I'm sure you know).

The third, and probably only other thing, which could be done (at least in MA) is towing the vehicles (or having the registered owners secure them). The towing could be done under the case law that does not require stores, or their owners (despite it being a public lot which grants the public, as licensees and invitees, access to same) to bear the burden of securing a car owner's vehicle indefinitely, due to the possibility of the car being stolen, vandalized, or otherwise damaged. Now, if the owner of the store and property gives a definitive "OK", then that's another story. I know it sounds strange, but dem's da fax in MA.

I'm pretty much reiterating what jeager001 stated in one of his posts....which is pretty much right on the money. Again, in MA LEO's are granted reasonable discretion (often true that it's the better part of valor) in arresting. In fact, the only thing that MA cops are MANDATED to arrest for is violation of a 209A (restraining order), and an arrest warrant when contacting the person who the warrant is for ("the court hereby COMMANDS you" is the part I consider the mandate ). Sounds like the officer in your hypothetical made a good call in light of the above, and the circumstances.
Link Posted: 3/19/2006 5:31:20 AM EDT
Of course, does the fact that the incident initiates on private property factor in?

It's not like they were observed DUI on the road and pulled in; the initial contact was on private property and there has been no attempt at operation of the vehicle after contact.

Just throwin' in...
Link Posted: 3/19/2006 8:06:35 AM EDT

Originally Posted By Tango7:
Of course, does the fact that the incident initiates on private property factor in?

It's not like they were observed DUI on the road and pulled in; the initial contact was on private property and there has been no attempt at operation of the vehicle after contact.



As with every legal question posted, each state is different in its' laws.

In Washington you can be arrested for DUI or Physical Control regardless of private property or public street. Just last week I made a Physical Control arrest where the person had just gotten into their vehicle in the driveway. We were there for a DV call and she was starting the vehicle, trying to leave, as I arrived. No driving, on private property, key in the ignition, she blew a .169. Glad I stopped her from making it to the street as she had 2 kids in the car under the age of 5 and no one had a seat belt on. The toddler was in her lap. Her starting the car was just a bonus. I would have arrested her even if she hadn't started the vehicle, the difference between keys in hand and keys in ignition is just a matter of where they are in the process of starting the car. She was drunk and in control of the car. Had she put the car in gear and was on her way out of the driveway I would have also charged her with Reckless Endangerment because of her condition and the kids not being in car seats. I would rather have the person argue it in court than kill someone and my not having done anything.
Link Posted: 3/19/2006 8:38:37 PM EDT
Same in MI. Person behind the wheel, Vehicle running and private property is a OWI.
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