[ARCHIVED THREAD] - DWI Question ... (Page 1 of 2)
Posted: 5/26/2015 11:02:04 PM EDT
|
I've never been arrested - question stems from a post in GD.
If you fail a Roadside Field Sobriety Test in Texas, will you be offered a: breathalyzer or blood test AFTER you have been arrested? thx - |
|
Thanks,
I know of a couple of guys that failed FST and were NOT given breath or blood tests. Both were prosecuted. Also, I sat on a jury selection ( I was not selected ) that was to determine a 3rd time offender - He also was NOT given a BAT after plowing into a tree. I was under the impression that a BAT was not mandatory, but optional at the discretion of the officer or agency involved. |
| Do not think that you have been told the facts of the case just because you sat through jury selection. Testimony cannot be given during jury selection. Even during the trial there is often evidence against the defendant that the jury will never hear because it has been ruled inadmissible. Inadmissible does not mean it was false evidence either. There could have been a blood test that showed them at 0.240, three times the limit, but if the lab tech is unavailable to testify the jury would never know. |
|
Quoted:
Thanks, I know of a couple of guys that failed FST and were NOT given breath or blood tests. Both were prosecuted. Quoted:
Thanks, I know of a couple of guys that failed FST and were NOT given breath or blood tests. Both were prosecuted. Also, I sat on a jury selection ( I was not selected ) that was to determine a 3rd time offender - He also was NOT given a BAT after plowing into a tree.
I was under the impression that a BAT was not mandatory, but optional at the discretion of the officer or agency involved. Without knowing any facts of the case it is impossible to say... |
|
Quoted: perhaps they refused? Rest assured they were offered. Quoted: Quoted: Thanks, I know of a couple of guys that failed FST and were NOT given breath or blood tests. Both were prosecuted. How can you be so sure? |
|
Quoted: Thanks, I know of a couple of guys that failed FST and were NOT given breath or blood tests. Both were prosecuted. Also, I sat on a jury selection ( I was not selected ) that was to determine a 3rd time offender - He also was NOT given a BAT after plowing into a tree. I was under the impression that a BAT was not mandatory, but optional at the discretion of the officer or agency involved. Sometimes the test is mandatory by statute, sometimes it's not and we go get a warrant from a judge. Getting the warrant depends on where you are. Some counties will do it, some wont. My last DWI was a refusal when I asked via written DIC form. I drove to the county jail, secured a warrant from the onduty Judge and blood was obtained on-site from a RN at the jail. |
Where did I say I was sure of anything? |
Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest.
Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. |
|
Quoted:
Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL |
|
Quoted: note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL Quoted: Quoted: Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night.  You shouldn't be giving legal advice in an open forum. |
|
Quoted:
I've never been arrested - question stems from a post in GD. If you fail a Roadside Field Sobriety Test in Texas, will you be offered a: breathalyzer or blood test AFTER you have been arrested? thx - A buddy recently arrested for DWI performed the FST, nine steps heel to toe, stand on one foot and count to 18, both of which he did. He then was told to blow in the tube and like a dumbass, instead of unzipping his pants and telling the cop he'd blow on it only if he blew on this first, he complied. He blew over the legal limit and was arrested for DWI. The cop checked every box on the form from being confused to disheveled and they stole confiscated his truck gun. So to answer your original question, they did the FST, the BAC test at roadside and based on that result, arrested him in that order. |
|
Quoted: A buddy recently arrested for DWI performed the FST, nine steps heel to toe, stand on one foot and count to 18, both of which he did. He then was told to blow in the tube and like a dumbass, instead of unzipping his pants and telling the cop he'd blow on it only if he blew on this first, he complied. He blew over the legal limit and was arrested for DWI. The cop checked every box on the form from being confused to disheveled and they stole confiscated his truck gun. So to answer your original question, they did the FST, the BAC test at roadside and based on that result, arrested him in that order. Yeah, that wouldn't have gotten him arrested.  |
|
Quoted:
Yeah, that wouldn't have gotten him arrested. Quoted:
Quoted:
A buddy recently arrested for DWI performed the FST, nine steps heel to toe, stand on one foot and count to 18, both of which he did. He then was told to blow in the tube and like a dumbass, instead of unzipping his pants and telling the cop he'd blow on it only if he blew on this first, he complied. He blew over the legal limit and was arrested for DWI. The cop checked every box on the form from being confused to disheveled and they stole confiscated his truck gun. So to answer your original question, they did the FST, the BAC test at roadside and based on that result, arrested him in that order. Yeah, that wouldn't have gotten him arrested. or this is the case where you fall down on accident... twice .... |
|
Quoted:
or this is the case where you fall down on accident... twice .... Quoted:
Quoted:
Quoted:
A buddy recently arrested for DWI performed the FST, nine steps heel to toe, stand on one foot and count to 18, both of which he did. He then was told to blow in the tube and like a dumbass, instead of unzipping his pants and telling the cop he'd blow on it only if he blew on this first, he complied. He blew over the legal limit and was arrested for DWI. The cop checked every box on the form from being confused to disheveled and they stole confiscated his truck gun. So to answer your original question, they did the FST, the BAC test at roadside and based on that result, arrested him in that order. Yeah, that wouldn't have gotten him arrested. or this is the case where you fall down on accident... twice .... YMMV. But this guy wouldn't suffer being assaulted by some thug hiding behind a badge. |
|
Quoted:
YMMV. But this guy wouldn't suffer being assaulted by some thug hiding behind a badge. Quoted:
Quoted:
Quoted:
Quoted:
A buddy recently arrested for DWI performed the FST, nine steps heel to toe, stand on one foot and count to 18, both of which he did. He then was told to blow in the tube and like a dumbass, instead of unzipping his pants and telling the cop he'd blow on it only if he blew on this first, he complied. He blew over the legal limit and was arrested for DWI. The cop checked every box on the form from being confused to disheveled and they stole confiscated his truck gun. So to answer your original question, they did the FST, the BAC test at roadside and based on that result, arrested him in that order. Yeah, that wouldn't have gotten him arrested. or this is the case where you fall down on accident... twice .... YMMV. But this guy wouldn't suffer being assaulted by some thug hiding behind a badge. who said anything about a thug... all I was referring to is that some drunks loose their ballance very easily ... especially when their mouth is moving ... on a side note i do know a guy that said something very simmilar to that. he said he went face down with 2 officers yelling stop resisting... he had the road rash on his face to prove it. |
|
Quoted:
You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night.
You shouldn't be giving legal advice in an open forum. Quoted:
Quoted:
Quoted:
Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night.
You shouldn't be giving legal advice in an open forum. Any good attorney would kick your butt in court with no evidence. I'll stick to my original statement as true. I'd rather a prosecutor have to prove and explain the observations than have the evidence right there in a hand basket and gift wrapped. Any defense attorney worth the money would prefer no evidence or just a BAC taken hours later than video and/or BAC. You can't tell me I'm wrong. I'd take my chances with a prosecutor who will probably be pretty fresh out of law school vs a very experienced defense attorney any day. You say you prosecuted successfully many, but how many did you lose with no BAC or just BAC? And no lying. |
|
Quoted:
You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night.
You shouldn't be giving legal advice in an open forum. Quoted:
Quoted:
Quoted:
Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night.
You shouldn't be giving legal advice in an open forum. That's funny I have heard the same advice from several lawyers? |
|
Quoted: Any good attorney would kick your butt in court with no evidence. I'll stick to my original statement as true. I'd rather a prosecutor have to prove and explain the observations than have the evidence right there in a hand basket and gift wrapped. Any defense attorney worth the money would prefer no evidence or just a BAC taken hours later than video and/or BAC. You can't tell me I'm wrong. I'd take my chances with a prosecutor who will probably be pretty fresh out of law school vs a very experienced defense attorney any day. You say you prosecuted successfully many, but how many did you lose with no BAC or just BAC? And no lying. Quoted: Quoted: Quoted: Quoted: Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night. You shouldn't be giving legal advice in an open forum. Any good attorney would kick your butt in court with no evidence. I'll stick to my original statement as true. I'd rather a prosecutor have to prove and explain the observations than have the evidence right there in a hand basket and gift wrapped. Any defense attorney worth the money would prefer no evidence or just a BAC taken hours later than video and/or BAC. You can't tell me I'm wrong. I'd take my chances with a prosecutor who will probably be pretty fresh out of law school vs a very experienced defense attorney any day. You say you prosecuted successfully many, but how many did you lose with no BAC or just BAC? And no lying. My butt is just fine, so your wrong there. I've hooked up some people who are Faaaaaaar from poor. And by prosecute I mean as the officer. I've never had a case dismissed under the circumstances you've described. And, I've never made an arrest of DWI with " no evidence ". What I see, smell and record via VIDEO with body cameras and patrol car video is very clear. Besides, if you refuse, I get a search warrant and I've been right 100% of the time so far. IF any of those were dismissed, I Wasn't told. I've never taken a sample 'hours' afterward, either. |
|
Quoted: That's funny I have heard the same advice from several lawyers? Quoted: Quoted: Quoted: Quoted: Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night. You shouldn't be giving legal advice in an open forum. That's funny I have heard the same advice from several lawyers? I've got some legal advice then. Dont drive drunk and it's nothing you have to worry about. |
|
Quoted:
That's funny I have heard the same advice from several lawyers? Quoted:
Quoted:
Quoted:
Quoted:
Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL You couldn't be more wrong. I've prosecuted, successfully, many cases of DWI where there was no blood/ breath or SFST. Now, when people take your advice and they choose to drink and drive and who refuse everything, a judge will sign a search warrant for the collection of such blood. Of course, I have to explain my observations, including why I believe with rather certainty that said person is intoxicated somehow, including the fact that you did refuse, which is admissible in court, I've never had any trouble with a warrant securing blood, and so far every one I've applied for and secured a DWI blood draw warrant for, have returned at well over the .08 BAC for DWI. I sleep pretty well at night.
You shouldn't be giving legal advice in an open forum. That's funny I have heard the same advice from several lawyers? Because they make money correcting the fuckup they told you to do. A refusal is more trips to court. , 
|
|
Quoted: Some agencies may ask you to give a breath specimen into a PBT before arrest, but the exact results are not admissible. We do not do this though. |
|
Quoted: If I'm an uncoordinated dummy, and am sober (I don't drink), can I speed up the process by requesting to skip the FST and just go to a breathylizer? Is that something you guys carry in the car, or do you have to go to a station for it? Quoted: Quoted: Some agencies may ask you to give a breath specimen into a PBT before arrest, but the exact results are not admissible. We do not do this though. Its not about coordination. It's a divided attention test. Remembering simple instructions is the part drunks have trouble with. THough I have skipped the walk/turn and leg stand when someone indicates an injury. |
|
Couple of things....
Three ways to be driving while intoxicated (alcohol and/or drugs= same charge) in Texas= (1) loss of normal use of mental faculties, (2) loss of normal use of physical faculties, (3) BAC at or above 0.08 at the time of driving. PBT (portable breath tests) results as inadmissible in Texas courts. DWI checkpoints/roadblocks are illegal. The DIC-24 is read (aka implied consent) and specimen or breath and/or blood is requested AFTER arrest. This does not violate a anybody's rights (per case law). Case law is rapidly changing regarding mandatory blood draws (accident with incapacitation/serious bodily injury or death, DWI 3rd), expect a warrant to always be required in both cases, despite prior rulings. Warrants can be requested after a refusal. A warrant is generally for blood only because the breath test requires a lot of lung capacity and it's hard to force someone to take one vs a blood draw. Note that blood, urine, and breath tests (not the portable kind) are admissible only IF a proper "predicate" (aka chain of custody and reliability in test methods) is established. In most trials the jury won't hear the number until a lot of testimony establishes reliability with methods of testing and custody of the sample and number. A regular DWI with a BAC less than 0.15 is a class B= 0-180 days jail or probation up to TWO years and up to $2000 fine. A DWI with a open container is a class B= 6-180 days jail or probation up to TWO years and up to $2000 fine. A DWI >0.15 is a class A= 0-365 days in jail or up to TWO years probation and up to $4000 fine. Typically requires interlock for probation. A DWI 2nd is a class A= 30-365 days in jail or up to TWO years probation and up to $4000 fine. Typically requires interlock for probation. People on probation must do 5-30 days jail as a condition of probation. DWI 3rd or more is a 3rd degree felony= 2-10 years, up to $10,000, or probation period of < 10 years. Intoxication assault= See above Intoxication manslaughter= 2nd degree felony=2-20 years, up to $10,000, or probation period of < 10 years. 3 standardized tests= HGN (eye test), Walk-and-turn (walk a straight line heel-to-toe, turn come back), One leg stand (raise one leg, count to 30). Can also use dexterity test (finger touching), alphabet (forwards NOT backwards like you hear about), counting. Biggest issues I face as a prosecutor in DWI= trying to prove a specific BAC AT THE TIME OF DRIVING, trying to prove loss of normal use of mental/physical facilities with a person that has a high tolerance and is used to functioning under the "influence" (intoxicated). Also, people with a illegal, but low number like 0.08-0.10 who have an open container in a car can make the "I was drinking, but my BAC was going up AFTER my arrest" argument. |
|
Quoted:
This would mean that you can be prosecuted on a FST alone. Quoted:
Quoted:
So, you fail a field sobriety test - be arrested for DWI, and NO - blood alcohol test is required. Am I correct? This would mean that you can be prosecuted on a FST alone. We call these a "refusal" case. A person's refusal after being read the DIC-24 form IS evidence of guilty (or at least can be considered by a jury). In my jurisdiction about 90% of the refusals end up with blood draws after the officers get a warrant. I recently tried a guy that was pulled over for speeding. Odor of alcohol on breath, "failed" all three tests, refused, no blood or breath given. No warrant. Convicted. It isn't hard to win a case without a number if you can prove they lost the normal use of mental/physical faculties. |
|
Quoted: Its not about coordination. It's a divided attention test. Remembering simple instructions is the part drunks have trouble with. THough I have skipped the walk/turn and leg stand when someone indicates an injury. Quoted: Quoted: Quoted: Some agencies may ask you to give a breath specimen into a PBT before arrest, but the exact results are not admissible. We do not do this though. Its not about coordination. It's a divided attention test. Remembering simple instructions is the part drunks have trouble with. THough I have skipped the walk/turn and leg stand when someone indicates an injury. |
|
Quoted: LEOs- What are typical wait times to get a Breath/Blood after arrest? MIL was arrested it was a 2+ hour wait in Dallas, she blew .00. She doesn't drink so whole arrest was bogus but she is old and drives like a drunk.... How is that possible? I read on this very forum that if you don't drink and drive you don't have to worry about it. |
|
Quoted:
So if you fail the FST and get arrested, can you request a breath test/blood test and if so what happens if you are under the limit? Just curious. Don't drink and drive personally. 0.08 is just one way to prove intoxication. A coworker won a 0.06 yesterday. Google retrograde extrapolation. |
|
Quoted:
O.K., here's a question for LEOs... Do you have a 100% conviction rate for everyone arrested for DUI? If not, why are some charges dismissed or for what reasons does the defendant prevail at trial? Wheeling can be an issue. Example, officer comes upon a man outside of a car that drove off the road and hit a tree. Guy is visually intoxicated (speech, smell, open beer/empty beer in car, stumbling, etc)... if I can't get a witness OR at least admission to driving PLUS 'something' (example, warm to the touch hood, keys in guys hand ) i'll lose. |
|
Quoted:
So if you fail the FST and get arrested, can you request a breath test/blood test and if so what happens if you are under the limit? Just curious. Don't drink and drive personally. There is no "limit". At .08 a defendant is assumed intoxicated. Blowing < .08 doesn't mean that a defendant will not be prosecuted. People can be and have been convicted of DUI even though they blew 0.00 and there was no blood draw to prove any other drugs or even where a blood draw showed no drugs present which were tested for. If the arresting officer testifies that the person appeared intoxicated even if the defendant does not blow an automatic intoxicated level, refuses the SFSTs and exercises their right to remain silent so there is no evidence that is apparently still enough to get a conviction. There really is not much if any way for a defendant to prove their innocence once arrested. Even though it should not be admissible that a defendant exercised their right to not incriminate themselves, as has been said already by an LEO in this thread the courts here will consider that refusal to be an admission of guilt. |
|
Quoted:
There is no "limit". At .08 a defendant is assumed intoxicated. Blowing < .08 doesn't mean that a defendant will not be prosecuted. People can be and have been convicted of DUI even though they blew 0.00 and there was no blood draw to prove any other drugs or even where a blood draw showed no drugs present which were tested for. If the arresting officer testifies that the person appeared intoxicated even if the defendant does not blow an automatic intoxicated level, refuses the SFSTs and exercises their right to remain silent so there is no evidence that is apparently still enough to get a conviction. There really is not much if any way for a defendant to prove their innocence once arrested. Even though it should not be admissible that a defendant exercised their right to not incriminate themselves, as has been said already by an LEO in this thread the courts here will consider that refusal to be an admission of guilt. Quoted:
Quoted:
So if you fail the FST and get arrested, can you request a breath test/blood test and if so what happens if you are under the limit? Just curious. Don't drink and drive personally. There is no "limit". At .08 a defendant is assumed intoxicated. Blowing < .08 doesn't mean that a defendant will not be prosecuted. People can be and have been convicted of DUI even though they blew 0.00 and there was no blood draw to prove any other drugs or even where a blood draw showed no drugs present which were tested for. If the arresting officer testifies that the person appeared intoxicated even if the defendant does not blow an automatic intoxicated level, refuses the SFSTs and exercises their right to remain silent so there is no evidence that is apparently still enough to get a conviction. There really is not much if any way for a defendant to prove their innocence once arrested. Even though it should not be admissible that a defendant exercised their right to not incriminate themselves, as has been said already by an LEO in this thread the courts here will consider that refusal to be an admission of guilt. So basically what you're saying is, that you get pulled over and officer states that you failed FST( let's say you didn't really, he just caught you banging his wife last week and he didn't find it amusing) and you blow a .00 you can still get a DUI because he said you were intoxicated? Am I understanding that correctly? I'm sure it rarely if ever would happen that way (most people that appear fucked up usually are) but let's pretend it did. That's what I am trying to figure out here... I understand that you can be under the influence of drugs other than alcohol so let's say you want to submit to a blood test to prove you have no intoxicating substances in your system. If it comes back clean you don't get released? You can still be charged if the cop is willing to testify against your ability to pass a FST? |
|
Quoted:
note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL Quoted:
Quoted:
Keep in mind, the BAC is evidence collection. You have AREADY fullfilled all the crime elements and been arrested for the offense. Not any different really than taking the fingerprints or shoes of a burglary arrest. Now, there are several reasons not to do a BAC at the jail. No licensed intox operator available, injuries in an accident, something other than alcohol is suspected, or the hospital results for your ER visit are used instead. The breathalyzer is not a make or break kind of deal. note "evidence collection".... always say no...nope...hell no to tests. These aren't for LEO to make sure you're sober enough to drive, these are for evidence for the prosecutor to use against you in trial. Wanna take a FST? Nope...take my arse to jail. Breathalyzer or blood sample? Nope. Case is given to a prosecutor, case file with no evidence + you hire good, well connected attorney = plea out or go to trial and let your attorney kick their arses. GL 
I love refusals since we get a warrant for blood. |
|
Quoted:
I'm a prosecutor that does almost exclusively DWI, DWI 2nd, DWI >0.15% and family violence cases. Feel free to ask (almost) anything, other than legal advice about what to do in a situation. Buddy was coming home from a party I talked him into going since he turned into a recluse after his divorce. Buddy hardly drinks, at all, either at home and never 'goes out drinking.' He doesn't even like beer and never has any in the fridge when we stop by. His doctor asked him in the course of routine questions and it's documented how much alcohol does he normally consume and he told him one beer every two weeks, maybe. He only said that because he didn't want to sound like a complete bore. One every two, three months on average would be more accurate. He was driving through a construction zone that had a temporary lane at 4:00 a.m after the party and got pulled over. The first thing the officer said was he failed to maintain lanes and 'almost hit that barrel back there.' I drive the same route to and from work every day and 'that barrel' is one that sticks out at the end in a line of staggered barrels. He has a bad knee and was recently to the doctor about it and it's in the doctor's notes that when he exits his truck it hurts to put weight on it and it will buckle until it loosens up. It buckled when he got out of the truck. He did the nine step heel to toe with no problem but when he was told to stand and lift his right foot he did but his knee buckled again causing him to drop his foot. He was then told to blow into the tube which he did and blew over the limit and was arrested for DWI. In the report the officer said he observed him drive over the white line on the right (like everyone does in that curving, temporary lane including myself) and also observed him cross the yellow line to the left which was a lie. If he had 'observed' him crossing into oncoming traffic he would have lit him up right then and that would have been the first thing out of the cop's mouth, that he almost had a head-on collision instead of him almost hitting a barrel that everyone has to pass close to. The officer also checked every box he could, including, 'confused, slurred speech and even disheveled appearance'. I talked to my buddy when he left and he was not confused or 'disheveled' and was, I'm sure, more presentable (he was looking for a new girlfriend) than the slovenly cop. He's not a drinker normally, doesn't like alcohol, only has three tickets on his record, the last one was in '97 and none were moving violations. He was fined $3,000,00 for the DWI + $5,000.00 for a UCW because he had a 1911 truck gun in his console which of course the cops confiscated. Bad stop? Probation? Jail? Loss of DL? |
|
Quoted:
I have a question about drugs, that is hydrocodone. If a person uses daily and gets stopped, he will always show intoxication if the blood was sent for the proper testing. Or does the blood always get tested for drugs in addition to alcohol? All TX DPS labs (where all blood goes) list the amounts of drugs in the blood. You can then look up therapeutic ranges and get an expert to talk about it. |
|
Quoted:
Buddy was coming home from a party I talked him into going since he turned into a recluse after his divorce. Buddy hardly drinks, at all, either at home and never 'goes out drinking.' He doesn't even like beer and never has any in the fridge when we stop by. His doctor asked him in the course of routine questions and it's documented how much alcohol does he normally consume and he told him one beer every two weeks, maybe. He only said that because he didn't want to sound like a complete bore. One every two, three months on average would be more accurate. ( likely inadmissible at a trial) He was driving through a construction zone that had a temporary lane at 4:00 a.m after the party and got pulled over. The first thing the officer said was he failed to maintain lanes and 'almost hit that barrel back there(.'Look up community caretaking. I'll also add that FMSL (failure to maintain a single lane of traffic) is a common violation consistent with DWI ) I drive the same route to and from work every day and 'that barrel' is one that sticks out at the end in a line of staggered barrels. He has a bad knee(Did he tell the officer about this? They typically ask about injuries...also research NHTSA guidelines for the WAT and OLS test. and was recently to the doctor about it and it's in the doctor's notes that when he exits his truck it hurts to put weight on it and it will buckle until it loosens up. It buckled when he got out of the truck. He did the nine step heel to toe with no problem but when he was told to stand and lift his right foot he did but his knee buckled again causing him to drop his foot. He was then (like on the road right there? the PBT test CANNOT come in as evidence... are you sure you don't mean he was transported to jail, where he blew into an intoxilizer 5000?told to blow into the tube which he did and blew over the limit and was arrested for DWI. In the report the officer said he observed him drive over the white line on the right (like everyone does in that curving, temporary lane including myself) and also observed him cross the yellow line to the left which was a lie. If he had 'observed' him crossing into oncoming traffic he would have lit him up right then and that would have been the first thing out of the cop's mouth, that he almost had a head-on collision instead of him almost hitting a barrel that everyone has to pass close to.Does your county/city law enforcement not have in-car cameras?? The officer also checked every box he could, including, 'confused, slurred speech and even disheveled appearance'. I talked to my buddy when he left and he was not confused or 'disheveled' and was, I'm sure, more presentable (he was looking for a new girlfriend) than the slovenly cop. He's not a drinker normally, doesn't like alcohol, only has three tickets on his record, the last one was in '97 and none were moving violations. He was fined $3,000,00 for the DWI + $5,000.00 for a UCW because he had a 1911 truck gun in his console which of course the cops confiscated. --> To be clear, a class B misdemeanor carries a MAXIMUM of $2000. The UCW is Class A, which is 4000 MAXIMUM Bad stop? Probation? Jail? Loss of DL? Quoted:
Quoted:
I'm a prosecutor that does almost exclusively DWI, DWI 2nd, DWI >0.15% and family violence cases. Feel free to ask (almost) anything, other than legal advice about what to do in a situation. Buddy was coming home from a party I talked him into going since he turned into a recluse after his divorce. Buddy hardly drinks, at all, either at home and never 'goes out drinking.' He doesn't even like beer and never has any in the fridge when we stop by. His doctor asked him in the course of routine questions and it's documented how much alcohol does he normally consume and he told him one beer every two weeks, maybe. He only said that because he didn't want to sound like a complete bore. One every two, three months on average would be more accurate. ( likely inadmissible at a trial) He was driving through a construction zone that had a temporary lane at 4:00 a.m after the party and got pulled over. The first thing the officer said was he failed to maintain lanes and 'almost hit that barrel back there(.'Look up community caretaking. I'll also add that FMSL (failure to maintain a single lane of traffic) is a common violation consistent with DWI ) I drive the same route to and from work every day and 'that barrel' is one that sticks out at the end in a line of staggered barrels. He has a bad knee(Did he tell the officer about this? They typically ask about injuries...also research NHTSA guidelines for the WAT and OLS test. and was recently to the doctor about it and it's in the doctor's notes that when he exits his truck it hurts to put weight on it and it will buckle until it loosens up. It buckled when he got out of the truck. He did the nine step heel to toe with no problem but when he was told to stand and lift his right foot he did but his knee buckled again causing him to drop his foot. He was then (like on the road right there? the PBT test CANNOT come in as evidence... are you sure you don't mean he was transported to jail, where he blew into an intoxilizer 5000?told to blow into the tube which he did and blew over the limit and was arrested for DWI. In the report the officer said he observed him drive over the white line on the right (like everyone does in that curving, temporary lane including myself) and also observed him cross the yellow line to the left which was a lie. If he had 'observed' him crossing into oncoming traffic he would have lit him up right then and that would have been the first thing out of the cop's mouth, that he almost had a head-on collision instead of him almost hitting a barrel that everyone has to pass close to.Does your county/city law enforcement not have in-car cameras?? The officer also checked every box he could, including, 'confused, slurred speech and even disheveled appearance'. I talked to my buddy when he left and he was not confused or 'disheveled' and was, I'm sure, more presentable (he was looking for a new girlfriend) than the slovenly cop. He's not a drinker normally, doesn't like alcohol, only has three tickets on his record, the last one was in '97 and none were moving violations. He was fined $3,000,00 for the DWI + $5,000.00 for a UCW because he had a 1911 truck gun in his console which of course the cops confiscated. --> To be clear, a class B misdemeanor carries a MAXIMUM of $2000. The UCW is Class A, which is 4000 MAXIMUM Bad stop? Probation? Jail? Loss of DL? Ok, see the above comments in red. I can't really give legal advice, but I've highlighted some stuff in red that is a bit "off"... I threw in a few terms that may help you have a better understanding if you google them. |
|
Quoted:
Ok, see the above comments in red. I can't really give legal advice, but I've highlighted some stuff in red that is a bit "off"... I threw in a few terms that may help you have a better understanding if you google them. Quoted:
Quoted:
Quoted:
I'm a prosecutor that does almost exclusively DWI, DWI 2nd, DWI >0.15% and family violence cases. Feel free to ask (almost) anything, other than legal advice about what to do in a situation. Buddy was coming home from a party I talked him into going since he turned into a recluse after his divorce. Buddy hardly drinks, at all, either at home and never 'goes out drinking.' He doesn't even like beer and never has any in the fridge when we stop by. His doctor asked him in the course of routine questions and it's documented how much alcohol does he normally consume and he told him one beer every two weeks, maybe. He only said that because he didn't want to sound like a complete bore. One every two, three months on average would be more accurate. ( likely inadmissible at a trial) He was driving through a construction zone that had a temporary lane at 4:00 a.m after the party and got pulled over. The first thing the officer said was he failed to maintain lanes and 'almost hit that barrel back there(.'Look up community caretaking. I'll also add that FMSL (failure to maintain a single lane of traffic) is a common violation consistent with DWI ) I drive the same route to and from work every day and 'that barrel' is one that sticks out at the end in a line of staggered barrels. He has a bad knee(Did he tell the officer about this? They typically ask about injuries...also research NHTSA guidelines for the WAT and OLS test. and was recently to the doctor about it and it's in the doctor's notes that when he exits his truck it hurts to put weight on it and it will buckle until it loosens up. It buckled when he got out of the truck. He did the nine step heel to toeit is 8 down, series of small steps to turn around, and 8 back in all 50 states with no problem but when he was told to stand and lift his right foot he did but his knee buckled again causing him to drop his foot. He was then (like on the road right there? the PBT test CANNOT come in as evidence... are you sure you don't mean he was transported to jail, where he blew into an intoxilizer 5000?told to blow into the tube which he did and blew over the limit and was arrested for DWI. In the report the officer said he observed him drive over the white line on the right (like everyone does in that curving, temporary lane including myself) and also observed him cross the yellow line to the left which was a lie. If he had 'observed' him crossing into oncoming traffic he would have lit him up right then and that would have been the first thing out of the cop's mouth, that he almost had a head-on collision instead of him almost hitting a barrel that everyone has to pass close to.Does your county/city law enforcement not have in-car cameras?? The officer also checked every box he could, including, 'confused, slurred speech and even disheveled appearance'. I talked to my buddy when he left and he was not confused or 'disheveled' and was, I'm sure, more presentable (he was looking for a new girlfriend) than the slovenly cop. He's not a drinker normally, doesn't like alcohol, only has three tickets on his record, the last one was in '97 and none were moving violations. He was fined $3,000,00 for the DWI + $5,000.00 for a UCW because he had a 1911 truck gun in his console which of course the cops confiscated. --> To be clear, a class B misdemeanor carries a MAXIMUM of $2000. The UCW is Class A, which is 4000 MAXIMUM Bad stop? Probation? Jail? Loss of DL? Ok, see the above comments in red. I can't really give legal advice, but I've highlighted some stuff in red that is a bit "off"... I threw in a few terms that may help you have a better understanding if you google them. Yeah, he blew in the tube on side of the road he said immediately after he dropped his foot. The cop never asked him about prior injuries. Once in jail, he said he was called up to the desk and a very belligerent (woman?) told him what he was being charged with. He declared to the cops a gun was concealed in his truck thinking the cops would hold it for him so it wouldn't get stolen in the impound yard and instead the (woman?) behind the desk told him he was also being charged with UCW. He asked her if she knew the law and that it wasn't illegal to have a handgun in his vehicle and she ordered him to go sit back down. When he went before the judge the next day he was told $3,000.00 for the DWI and $5,000.00 for the gun. Without asking why, the judge immediately explained why the gun was illegal as it was "used" during a crime. The bulldyke behind the counter must have footnoted he had an attitude and it cost him a few thousands more. |
|
Quoted: Thanks. I do not drink...gave it up for health reasons...but I'd just assume save us both some time...of course, I bet yo guys can tell pretty quickly who is drunk and is not. Quoted: Quoted: Quoted: Quoted: Some agencies may ask you to give a breath specimen into a PBT before arrest, but the exact results are not admissible. We do not do this though. Its not about coordination. It's a divided attention test. Remembering simple instructions is the part drunks have trouble with. THough I have skipped the walk/turn and leg stand when someone indicates an injury. Its not hard to make a pretty good judgemet call. Drunk drivers are very common these days to be double the .08. |
|
Quoted: How is that possible? I read on this very forum that if you don't drink and drive you don't have to worry about it. Quoted: Quoted: LEOs- What are typical wait times to get a Breath/Blood after arrest? MIL was arrested it was a 2+ hour wait in Dallas, she blew .00. She doesn't drink so whole arrest was bogus but she is old and drives like a drunk.... How is that possible? I read on this very forum that if you don't drink and drive you don't have to worry about it. The perfect utopia world you are looking for does not exist. |
|
DWI has become a huge money maker, made off people with money. Stand in line at any convenience store and look at all the beer thats being sold and whose buying it. Beer is as much of the illegal Hispanic diet as frijoles and they're not afraid to ask for a little brown bag so they can get drunk while driving. I mean fuck all the laws, not just immigration laws. And yet they are the ones most responsible for the new hit and run plague America faces.
And yet thats the group that is rarely stopped. Why? It will most likely involve fake documentation or even more likely no documentation, DL, insurance and a drunk driver. This involves lots of paper work on the LEO part and politics on the agencies part. Plus they know the defendant won't stick around to pay off his thousands of dollar fines and possible jail time. How many illegals have you ever seen in orange jumpsuits picking up trash along the highway? If the courts and LE were so determined to crack down on DWI's for the sake of public safety instead of using it as it's largest money maker, one would think they would go after the most likely offender instead of having a hands-off policy. |
|
Quoted:
So basically what you're saying is, that you get pulled over and officer states that you failed FST( let's say you didn't really, he just caught you banging his wife last week and he didn't find it amusing) and you blow a .00 you can still get a DUI because he said you were intoxicated? Am I understanding that correctly? I'm sure it rarely if ever would happen that way (most people that appear fucked up usually are) but let's pretend it did. That's what I am trying to figure out here... I understand that you can be under the influence of drugs other than alcohol so let's say you want to submit to a blood test to prove you have no intoxicating substances in your system. If it comes back clean you don't get released? You can still be charged if the cop is willing to testify against your ability to pass a FST? Quoted:
Quoted:
Quoted:
So if you fail the FST and get arrested, can you request a breath test/blood test and if so what happens if you are under the limit? Just curious. Don't drink and drive personally. There is no "limit". At .08 a defendant is assumed intoxicated. Blowing < .08 doesn't mean that a defendant will not be prosecuted. People can be and have been convicted of DUI even though they blew 0.00 and there was no blood draw to prove any other drugs or even where a blood draw showed no drugs present which were tested for. If the arresting officer testifies that the person appeared intoxicated even if the defendant does not blow an automatic intoxicated level, refuses the SFSTs and exercises their right to remain silent so there is no evidence that is apparently still enough to get a conviction. There really is not much if any way for a defendant to prove their innocence once arrested. Even though it should not be admissible that a defendant exercised their right to not incriminate themselves, as has been said already by an LEO in this thread the courts here will consider that refusal to be an admission of guilt. So basically what you're saying is, that you get pulled over and officer states that you failed FST( let's say you didn't really, he just caught you banging his wife last week and he didn't find it amusing) and you blow a .00 you can still get a DUI because he said you were intoxicated? Am I understanding that correctly? I'm sure it rarely if ever would happen that way (most people that appear fucked up usually are) but let's pretend it did. That's what I am trying to figure out here... I understand that you can be under the influence of drugs other than alcohol so let's say you want to submit to a blood test to prove you have no intoxicating substances in your system. If it comes back clean you don't get released? You can still be charged if the cop is willing to testify against your ability to pass a FST? That's what I'm saying, other than the wife bit. Rare, yes, but impossible no. They don't HAVE to give you a blood test because you ASK for one so you can "prove" you aren't intoxicated. That's not how it works, there is nothing in it for them. It does not help them get a conviction to allow tests which won't show intoxication. Even if a test comes back totally clean they can still claim you must have been on something the test didn't cover. There is basically no way to disprove that. Despite the fact that there are a lot of people who can't pass a FST stone cold sober, that's all it takes. The way the law is written you don't even have to BE intoxicated, you can be found guilty if you just APPEAR to be. If there is no video evidence then hearsay testimony will convict. |