Cop Repellant

[Mark Jones]

I have to say, using such a device would not be what i would consider polite. LEOs shouldn't be harasing people, but even if you've had a 'couple' you can still talk to the LEO if pulled over.

As opposed to those nifty new flashlights that double as breathalyzers, so you can do a breath test secretly while shining a light on someone. I don't consider that kind of thing polite either.

If these little items became wide spread, we'll think our "Us vs. Them" problems in the past didn't exist.

I think they're a _response_ the "us v. them" problem, myself. As is the growing tendency I see for people to assume the very worst in any encounter with the police.

[Pepperbox]

If memory serves me, sans being under arrest or criminal investigation, the only way a cop can question you OR DETAIN you is if you agree (voluntary)...

[Elizabeth Petersen]

(Warning: Emotionally-based response ahead.)

Vicimless crime?

Sure it is. FOR THE DRUNK DRIVER.

I sure as shoot wish the woman who'd chosen to exercise her right to drive her car on a public road while BAD* hadn't also driven it at 65 mph into the driver's side of my little subaru. If she hadn't, I wouldn't have had to answer the cringe-inducing question, "WHAT THE HECK HAPPENED TO YOUR LEGS?" everytime I wear shorts.

Nothing like being trapped in a mangled car getting your legs all burned to Hell while the BAD* driver is stumbling around outside, unscathed, screaming "I swear to GOD I only had one beer!"

That was my first experience with a BAD* driver. The second time, I was in the jump seat of an ambulance. Rear-ended by a BAD* driver coming off a freeway exit. Flipped the rig on it's side. Thank god there was no patient in the back. I ended up with 275 lbs of Partner on top of me (oof!), but other than that we were all right. The BAD* driver didn't have a scratch.

Seriously though, I see what Dean is trying to say. There are no victims of drunk driving until that same drunk driver, through actions directly related to the drunk driving, causes injury and/or property damage.

My problem here is that the chance of that happening is very very high. And, if that ain't bad enough, it's usually not the BAD* driver who gets hurt. It's the poor schmoe who was sober, driving down the road and minding their own business.

Regarding the lawyer and his cute little scheme? Anyone who is dumb enough to shell out $100 bucks for a gizmo to keep them from getting a DUI ticket could save themselves some serious bucks by simply choosing NOT to drink and drive.

DOH.

*BAD: Blind Ass Drunk

[WYO]

Jimpeel, there's a lot more to it than that. There is driving behavior which is indicative of DUI, to give one example. Also note that a lot of times the car interiors reek of alcohol, so sliding over in lieu of exiting isn't necessarily going to be a help.

[Jeff White]

No one gets stopped for suspicion of DUI. Even if there is a broadcast made, the officer must establish his own probable cause for the stop. Improper lane usage, speeding, equipment violations...any violation of the vehicle code is sufficient reason to stop a suspected drunk driver.

The driver who cracked his/her window and handed me this "cop repellent" kit would most likely find themselves under arrest for obstruction of justice. Obstruction of justice is a felony and therefore a custodial arrest. Hmmm...the statement says will only exit the vehicle if under arrest...guess that's covered.

In Illinois the officer could also make a custodial arrest for the traffic violation that was the reason for the stop and transport the driver to jail, where he/she can make bond. Making bond at the side of the road with your Drivers License, cash or bond card is a courtesy, not a right.

Looks to me that this is a cheap attempt to keep the officer from having enough evidence to file a DUI charge. With the proliferation of squad car mounted video systems, this will not work as you can record erratic driving before the suspect is pulled over. The video will also record the refusal of the suspect to cooperate, proving the obstruction charge.

Many attorneys advise their clients not to take the breathalyzer test because that is what provides the evidence of BAC. DUI CAN be proven without verified BAC. It's especially easy to prove on video tape.

This is the same type of rip off as the burn fat while you sleep pills that they sell on the radio. Only it's more sinister as it's possesion encourages people to engage in dangerous, illegal behavior.

The interesting thing to me is that a lawyer is selling these. If Phillip Morris is responsible because people use their legallly sold substance have health problems, and courts can rule that firearms manufacturers can be held responsible for the criminal misues of their products, both of these being bogus ideas totally lacking in common sense, what makes this guy think that he's in the clear when someone in possesion of his "cop repellent" injures or kills someone?

Jeff

[argo]

Weird, a automated 'up yours' to public servants. Would be easier to simply answer general questions, a resonable LEO, will then let a sober driver go with a "good evening, and enjoy your trip". DWI, DUI are not a victimless endeavor-more a contempt for the common good. However, I can see the possible need for such a device-there are places where LE will go fishing using supposed erratic driving as a pretext. As for Lawdog's 'offense of the minute tactics'-sounds more like the type of abuse of authority for
which the Mexican police are reknowned. What's the defense to this?

[MellowMikey]

Too funny. A drunken attorney with two previous DUI arrests makes a device to help other drunks beat DUI's.

Impaired drivers are the scum of the earth, they kill more than guns do and are the most irresponsible citizens we have. They deserve no quarter, other than being drawn and quartered.

Quick, the gene pool needs some more chlorine.

[Zander]

"The Constitution is not about providing you complete safety from my actions...it's about
providing me some safety from the government." -- Rich Lucibella

Bullseye!

[Zander]

"...they kill more than guns do..." -- MM

Guns don't kill.

[Rich Lucibella]

Let's try this a different way:
- Health, safety or welfare of the citizenry is the basis for every law.
- Every law, by definition, transfers some citizen freedoms or rights to the Government.

Therefore, every demand for Government controlled health, welfare or safety program results in a diminution of your rights. There simply is no way around this, people. The Founders knew it; our current CongressCritters know it.

The question on the floor is where do you draw the line? One man's drunk driver campaign is another man's campaign against possible domestic terrorism, is another man's campaign against poverty, is another man's campaign against drugs, is another man's campaign against SUV's, is another man's campaign against firearms.

Me....I'd rather stick to the letter of the Constitution (in this case the IV Amendment to the Bill of Rights) and take my chances with the dangers my fellow citizens' stupidity presents.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Rich

[Nightcrawler]

...if you refuse to take the breathalyzer, the police have the right to arrest you and haul you down to the station until they can determine your alcohol level.

It's more convienient, I've found, to simply not drink. Having been nearly killed in a car accident by a drunk driver when I was five, and watching my dad kill himself with whiskey and vodka has really turned me off to the whole idea of drinking.

[DCR]

Jeff White:

The driver who cracked his/her window and handed me this "cop repellent" kit would most likely find themselves under arrest for obstruction of justice. Obstruction of justice is a felony and therefore a custodial arrest.

WOW, I'm glad that I live in a state where exercising your constitutional rights (remaining silent pursuant to the fifth amendment, refusing to speak to the officer outside the presence of my attorney pursuant to the sixth amendment) won't get me arrested for obstruction (occasionally referred to as "failing the attitude test").

We had an obstruction case here that brought up an interesting point: a defendant had allegedly lied to officers when they arrived to serve a search warrant at his office. Our state supreme court found that giving an untruthful response to an officer's question is not any more obstructive to the discharge of that officer's lawful duties than refusing to answer. Note: the defendant was an attorney. State v. Brandstetter, if you are interested. Further, the exercise of your right to remain silent also cannot be held against you in court - that's a long-standing legal principle - so I don't think you're going to get as much evidence admitted as you believe you can, if the defendant's attorney is competent. However, as you well know, things like "The subject was un-cooperative" always make it into the police report and sometimes "accidentally" slip out while on the witness stand....

But you are absolutely correct that a driver (or passenger, for that matter) would be subject to arrest for refusing to exit the car when the officer requested it; that is obstruction just about everywhere (see the Pennsylvania v Mimms and Maryland v Wilson cases posted by Coronach; both are US Supreme Court decisions; however, many courts have declined to follow those cases, probably due to different fact situations).

The bottom line: this thing probably won't work everywhere. Any user will likely be arrested (for refusing to get out of the car), charged with obstruction and DUI and anything else applicable at the time, will be subject to an administrative driver's license suspension on top of that, have their car towed and impounded unless there is a sober, legally licensed driver and the car has the proper registration,insurance and emissions test, have to pay to bond out, and pay a lawyer ANYWAY. I'm passing on this toy and staying sober if I'm driving - it's cheaper.

Good thread, everybody!!

[Jeff White]

DCR,

That's an interesting case you cited. Lying about your identity or other aspects of a case has always held up as obstruction here. As you stated, remaining silent isn't obstruction.

In the situation I described where I walked up on the car and was handed the "cop repellent" through a window lowered just a crack would be considered obstruction. At this point I'm not about to ask any questions concerning a crime, I'm trying to establish the identity of the driver of the vehicle. The "cop repellent" ruse is an attempt to conceal evidence of a crime (the smell of alcohol on the driver) and thwart further investgation. Courts here have ruled that it's not a 5th amendment violation to ask for the identity of the driver or in some cases, even the passengers in a vehicle. I'll look it up to be certain, but I believe there is a SCOTUS decision on this.

Now once I had established that I suspected the driver of having a blood alcohol level above the legal limit and began asking questions like; "How much did you have to drink tonight?" the 5th and 6th amendment protections kick in and I should read the driver his rights before asking questions like that. I think under your intepretation, we would have to begin every traffic stop with the Miranda warning, instead of; "I'm officer White of the ________ police dept. and may I see your license and proof of insurance please?"

How do officers in your home state deal with drivers and other subjects who refuse to provide ID or answer if they are the person the license belongs to? I'm curious as to how that would be handled.

Do you think that the seller of the "cop repellent" could be found civilly liable if a user was involved in an accident?

Jeff

[USP45]

Unless i've misread the story, the "Cop Repellant" device states that the holder, "will only be getting out of the car for the officers safety or if under arrest."

Does this constitute refusing an officer's orders? Doesn't seem that way to me. If the officer feels the need to invite the driver to the side of the road, the officer still may. It is interesting that it doesn't change anything, except to remind the holder of the only two reasons they should be outside of their car during a traffic stop.

Failure to properly perform the field sobriety test is grounds for arrest. Sitting in your car is one way to fail a field sobriety test.

Personally, i never drive if i've had too many, so for me it makes the decision really easy. If pulled over and the officer wants me to perform a field sobriety test, then i'll simply refuse politely and submit to arrest and win in court. I know i'm sober, and if the officer disagrees with me, then i know something is up. A good friend of mine "failed" a field sobriety test though he was clearly not under the influence of any substance, and the record of the socalled failed sobriety test on the side of the road just looked bad for him. (Case was eventually thrown out of court because the officers evidence didn't add up under cross examination.)

~USP

[Jhp147]

I think this thread is kind of wandering a bit, which is okay since folks were getting a bit angry. Just want to throw in a general comment about rights and all that. Don't I have the RIGHT to drive down the road minding my own business without some drunk running into me and and killing me or my family, or burning my legs, or whatever? I too, have seen MANY results of DUI accidents (Got any pictures of dead children? Wanna buy some?) We all have the RIGHT to scream "FIRE!," but it must be coupled with the RESPONSIBILITY that it not be done somewhere/some way that results in harm to others. Same with alcohol, I think it is great that we have the right to get as totally sloshed as we want. But we have the responsibility to keep it off the public road where your intoxication can affect someone else. As gun owners, we have the right to have the weapons, and all take seriously our accompanying responsibility to not do harmful-to-others things with them. I kept thinking someone will satisfy me with a reply like this and I wouldn't have to rejoin the fray, but nobody hit exactly on this thought so here it is.

[Rich Lucibella]

JHP:

Don't I have the RIGHT to drive down the road minding my own business without some drunk running into me and and killing me or my family, or burning my legs, or whatever?

Perhaps....(I don't personally think this is a "right", so much as a reasonable expectation) but that's the nub of the question, isn't it? Because it allows the next person to say:
- "Don't I have the right to drive down the road in my Neon without worrying about some soccer Mom hitting me with her huge SUV, when she, too, could be driving a compact?"
- "Don't I have the right to know that I won't be blown up by a Tim McVeigh?"
- "Don't I have the right to know that my children are not going to be at risk from the kid next door stealing Daddy's gun?"

Be careful what you ask for, as everyone else out there has a wish list in terms of expectations of reasonable behavior from others. When I begin to demand that your behavior become my "right", I ask for government codification and intervention. This can only happen at the expense of others' real "rights, as defined in the Constitution...there simply is no way around this trade off.

Ultimately, your only defense for this position is to insist that "The world has changed since the Founding Fathers"; that "they never envisioned a world in which vehicles could travel at 100mph+". It's a familiar argument...and a dangerous one.
Rich

[deanf]

. . . if somebody approached you and said "I’m gonna kill you" and started shooting at you, would the crime be victimless as long as he missed?

Different situation. In your example, the suspect is acting in an affirmative manner to do me serious bodily injury or death. It's pre-meditated. He's decided he's going to kill me (not a crime in itself) and he's taken action to accomplish his goal (the crime.)

I doubt most DUI drivers make the concious decision to get liquored-up and go out and kill/maim people and destroy property.

I just want to make sure people understand something: I don't advocate drunk driving, and I don't do it.

Elizabeth, with all due respect, what happened to you was not a victimless crime. (I feel embarassed telling you something you know all too well.) You're comparing your apples to my oranges.

Can anyone give me the name of a person who was a victim of a DUI driver who hasn't injured or killed anyone or damaged any property?

. . . folks were getting a bit angry.

I didn't see that. I think this is going very well, considering the polarized opinions.

[Jeff White]

Rich,
I think the question here is where do we draw the line between individual freedom and public safety?

My 7th grade Social Studies teacher, Mrs. Weisenstein, always said that your rights extended out until they overlapped someone elses. So that's pretty vague, but maybe it needs to be so.

I don't think that there is anyone on the forum who is for drunk driving. The debate here is how much freedom are we willing to give up to protect ourselves from it? It's been my experience that anytime we declare something a public problem, we cannot stop with solutions that address that problem with the least infringments on our freedom. The torchbearers for the particular cause are never satisified. It doesn't matter if the issue is drunk driving, gun ownership, cell phone use or posting too much on TFL there is someone out there who won't be satisfied until we have zero tolerance for whatever "sin" they want to stop. In the war against drunk driving we started with increased penalties and stepped up enforcement. Now we have a movement to lower the BAC threshhold in all the state to .08, my question is, where do we go from there? 5 years after all 53 states and territories make .08 the law of the land, it'll be .06, then .04 till eventually .01 will land you a felony rap. But guess what, those who would drive drunk at .10 will still drive drunk at .01. But in the end freedom will have lost because responsible use and enjoyment of adult beverages will be effectively outlawed outside of ones own home.

In this thread we are discussing drunk driving. This is a good issue to discuss because everyone believes that drunk drivers are dangerous and a legitimate public concern. I don't see it as a violation of a persons rights to require him/her to identify themselves to a police officer when asked. The 5th and 6th amendment protections shouldn't take effect until the person is asked questions about a crime. A person's identity is not admission to a crime unless that person is wanted. Alcohol on their breath shouldn't be a reason not to speak to an officer. Alcohol on the breath is not enough in and of itself to make a DUI arrest. I think an obstruction arrest for the person using the "cop repellent" would stand up in most courts. On the other hand, regardless of what the Supreme Court says, I think "traffic safety roadblocks" are unconstitutional and should npot be permitted. I draw the line at detaining someone from their business without at least a reasonable suspician that they are involved in illegal activity. If they happen to drive through an intersection without breaking the law, they shouldn't be stopped or detained. If you are stopping every car or every 3d or 4th car it's wrong.

The problem here is that we no longer are a republic that is protected from the tyranny of the majority by a constitution. For the most part, our elected officials don't know what the word unconstitutional means. Add this to a population that the majority of has never really known adversity in their lifetime and you get the mess we are in today. I was very concerned about this trend in the late '80s when one of the major polling companies published data that showed a majority of Americans would give up some of their 4th amendment protections to win the war on drugs. I always thought they got these results because people had this stereotype of a drug dealer in their minds eye, and they knew they didn't fit in so they figured the surrender of rights wouldn't affect them.

Education is the key. Unfortunately we're almost two generations behind. We've got a lot of catching up to do and it won't be easy, cause a lot of people with agendas will have to give up power. Electing representatives who understand the constitution and where they fit in will also help. Can it be done? I believe so. Will it be easy or without a lot of turmoil? I'm afraid not.

Jeff

[jungleman]

There should be no standard BAC level. You should only be given a ticket or arrested of you are driving erratic etc. Everyone handles alcohol differently. I am 51 years old and yes I have seen (drunk drivers) or sleepy, or high on dope. I have seen about 5 or 6. Now lets take a look at people who tailgate, pull out in
front of you, put on makeup, talk on cell phones, eat, read, change clothes, etc, this happens EVERYDAY. You should be responsible for your actions. What is the difference if you run a child over and kill him or her or you run a child over while drinking and kill him or her. The child is dead either way. The penalty is a lot different between these two actions. I say that if you run a child over and kill him or her the penalty should be the same if you are drunk or if you are talking to a passenger in the car.

[Rich Lucibella]

Jeff-
I couldn't agree with you more.....both your historic and current political insights.

Jungleman-
I see where you're coming from but have to disagree. The law's treatment of DUI Vehicular Homicide, reflects the fact that the individual not only lapsed and caused the loss of life, but did so after the decision to drink and drive. Far more serious than the lapse alone, I think. A similar legal scenario is the different treatment of those who commit robbery and those who commit robbery with a gun...I doubt any of us would say that both sentences should be the same.

My point is this: I'm innocent until proven guilty. I should have every right to hand a cop a voice recording, a card or anything else which states:
"I am an American citizen. I do not wish to engage in conversation with you. I do not wish to be detained unnecessarily by you. I do not wish to remove myself from my vehicle unless remaining here presents a real threat to your safety....mine is my responsibility. I do not wish to jump on one leg in front of the world for you.

If I have broken a traffic law, you may write me a summons. If you suspect me of something more serious, you may arrest me."

Period; End of Statement. I don't believe I should have my drivers license revoked for this, unless arrested and found guilty of a suitable offense; I don't believe I should be arrested for obstruction for this; and I certainly don't believe fellow Americans should think "Well you must be 'hiding' something if you aren't willing to talk to the cops"......I'd rather believe I am still an American Citizen. Cooperation is one thing; subjugation is quite another.
Rich

[Coronach]

...on the exiting the vehicle. Here is the simple low-down from the nine wise souls in DC:

Pennsylvania v Mimms: A LEO can order the driver of a vehicle out of a car for the duration of a traffic stop. Period. All that is required is that the stop be legit (that is, there must be PC for the stop).

Maryland v Wilson: the above statement applies to passengers, too.

No need for PC to think the subject is intoxicated. No need to articulate a threat to safety. NOTE: state/local court decisions may place furtehr restrictions on this, so YMMV.

Now, in light of this, shoving that cop-repellant in a LEO's face is a sure-fire way to be ordered out of the vehicle. And there is no 4th amendment issue, like it or not.

Now, as to DUI/DWI being victimless...well. Hmmm. Lets see, someone engages in a specific behavior (driving) in a condition (intoxication) that places everyone around them at risk of injury or death. There need not be intent, per se. There are a HOST of crimes that hinge upon negligence or recklessness as opposed to intentionality. So don't get hung up on a lack of intent to do harm.

Simple fact of the matter- you're driving a two ton vehicle in a state where you're unable to properly control it. This places everyone around you at risk. Its a crime, and IM(NS)HO it damn well should be.*

Mike

*Yes, you can stretch this to cover cell phones as well, if you're democrat. Only left-wingers are so warped as to confuse a state of intoxication in which muscular responses, perception and judgement are all impaired with calling home to talk to the kids.

[LawDog]

As for Lawdog's 'offense of the minute tactics'-sounds more like the type of abuse of authority for
which the Mexican police are renowned. What's the defense to this?

Defense?

*sigh* Okay, fast lesson in Law and Police tactics here.

In Texas, we don't use sobriety checkpoints, so a DWI arrest is incidental to traffic violations. In other words, the traffic violation gives you the reason to pull over a vehicle.

Now, you're out on patrol, and you see a vehicle proceeding down a highway and weaving in-and-out of his lane (Failure to Maintain a Single Lane), not dimming his headlights (Fail to Dim Headlights) and anything else mentioned in my original post.

This list of traffic offenses is the reason for the stop, and you approach the driver with the intent of citing or warning the driver about his violations of the Traffic Code, but when you speak to the driver you notice a strong smell of an alcoholic beverage, glassy eyes, nystigmus, difficulty processing information, and anything else which indicates that the driver is intoxicated.

Now your vehicle stop for violating the Traffic Code has turned into a DWI investigation, and the traffic violations become lesser included offenses to the DWI.

With me so far?

Okay, now you have just pulled a vehicle over for violating the Traffic Code (the list I posted originally are the classic signs of an intoxicated driver) and the driver hands you a card which announces that he will not exit the vehicle unless it's for Officer Safety, or if he's under arrest.

Which is all well and good, because he is under arrest -- for the violations of the Traffic Code. The ticket I'm fixing to give him for the Traffic Code violations is an arrest.

Does that clear things up a bit?

LawDog

[Rich Lucibella]

Law Dog-
Your approach is quite correct in today's environment. I take no issue with it. It's today's environment I take issue with. We all know that a routine traffic stop for improper lane changes should no more result in an arrest than walking a dog without a leash. A traffic citation, yes; and arrest, no.

But in today's environment, cops can use that ability to arrest someone because they refuse to self incriminate.....and that ain't right. It results in, and feeds, an attitude that Citizens should be willing to prove their innocence or suffer the collateral consequences. Sure the trade-off seems appropriate if we distill it down to an individual case of a cop stopping a drunk driver....but isn't that how we've emasculated the IV Amendment to the "War on Drugs"?

The concept that an LEO is giving me a break for not cuffing me after failing to signal a lane change is insulting....it's also the reason why so many of us agree to an invasion of our rights during a traffic stop. We know that if we refuse to cooperate, even absent arrest, things will get much worse....that's the Law of Fear, not of Reason; it's Rule by Intimidation and Force. That same dynamic is at work in any case of "Do this, or else"....with the exception that in most other cases, the Law will support your right to refuse compliance.

Rich

[deanf]

Rich's last post puts an extremely nauseating point on the problem, in general, with law enforcement in this country.

Reading it makes me sick, even though it's all so true, and perfectly explained.

[Jhp147]

Rich, you and I may have to just agree to disagree, I can't see how your argument comparing drunk driving, SUV's, etc. relates to mine, I am still talking about behaviors. Not saying you are wrong....saying I can't connect.
To expound on Lawdog's post: Really, when you get stopped and given a ticket in lieu of arrest (physical), it means you are promising to appear before the magistrate (posting bond)using a signature. TECHNICALLY, if you are accused by an officer of any violation, you are to be taken to a judge. That means you are "arrested' and taken to see his/her honor who intercedes between you and the LEO to decide what happens next. Unfortunately, judges are tough to come by at night, so therefore you go to be HELD (in jail, as it works out, as govenment has no appropriate area to wait for judges working hours) until a magistrate is available. Stick with me here....there have been and continue to be times when officers at my agency must detain. Example: German citizen has accident due to red light violation. Obviously, he can't sign a ticket as he will NOT be here in 12 days to appear, he is en route home after dropping off the now dented rental. He is taken directly to the Judge, at least on day shift. He pleads and posts bond. If he does NOT appear for trial, the bond is forfeited. I use an extreme case here, as we have a violator compact with about half the states that allow citations to be issued instead of immediate personal appearance.
The handcuffs? Yep, degrading. Unfortunately, this has been made necessary at times, but at my agency, when people are being taken to the judge (or post a bond if she isn't in), not to JAIL, for some traffic offense, this is treated as an "escort," not an arrest unless the person gives impression that he will not see the judge willingly. That means no cuffs and usually he follows you down in his own car.
The phrase "a citiation is a courtesy by the officer, issued instead of arrest" is not quite correct. It should be "a citation is a courtesy by the officer, issued instead of taking you immediately before a magistrate." I have heard of folks refusing to sign and the result being taken IMMEDIATELY before the judge. It's just that most would rather contact the court at their convenience.
SO....arrest for traffic is really a detention to allow you to be told, "hey, you gotta see the judge about that red ligh violation sometime in the next 12 days, buddy." Boy, I hope that made sense.