Cop Repellant

[Don Gwinn]

I have to admit I don't quite understand, Rich. Like you, I don't believe my rights as protected by the Fourth Amendment go away on a public roadway, even though it is publicly owned property. But I also don't see how anything Lawdog is doing violates those rights. He has already pulled you over for driving erratically and now you are giving him some kind of reason to believe you might be drunk. Therefore, it is not unreasonable for him to ask you to exit or to ask you questions, and that's what the Fourth Amendment prohibits--unreasonable searches and seizures. If you see someone walking down the road covered in blood with a bloody knife in his hand, it is not unreasonable to ask him questions related to murder. If he's carrying a television out through a window at 2 a.m., it is not unreasonable to ask question him about a burglary.

Now, maybe the guy covered in blood was just in an accident and cut himself loose, thus has done nothing wrong and is just a little dazed. Maybe the other guy is moving out and going through that window was easier than out the door (yes, I did that, it's a long story.) The point is that each man is in the right and perfectly innocent, but it does NOT violate his 4th Amendment rights to question him or even detain him because it is reasonable for the cop to suspect a crime.

I am not speaking purely theoretically here. I had an experience a lot like what we're talking about here back when I was a waiter. I was coming home about 2 in the morning and dead tired. I got pulled over in my hometown after a 45-minute drive and the first question they asked after my name and DL was "how much have you had to drink tonight?" Well, I answered him honestly. There was no alcohol on my breath and I was still in uniform; I was just tired. They said they had observed me crossing the center line. At the time I wondered but the more I drive the more I realize I can't do it tired, so it's likely they were telling the truth. The point is, I WAS tired and I probably DID drive erratically, so it was reasonable to ask me questions. It would have been reasonable to administer a roadside test, and I would have submitted to it.

With regards to drunk driving, I can only say again that it is NOT a victimless crime to point a 3-ton truck at other people, get it to cruising speed and then give up control of it. It is very nearly attempted murder. A "victimless crime" is a crime that WILL NOT hurt anyone, not a crime that MIGHT NOT hurt anyone if everything goes OK and everyone involved is lucky. Prostitution might be called a victimless crime, because no one is harmed by it. Drug sales, maybe, since the only people being harmed are choosing to be harmed in exchange for a high. Shooting at someone and missing, as has been pointed out above, is NOT a victimless crime. It's a crapshoot with bad odds.

[DCR]

Jeff White:

Yes, refusing to produce a driver's license or proper identification, or giving false identification, would be obstructing here as well. Likely, an officer who encounters such a person would continue the traffic stop or investigative detention long enough to either establish their identity through other means while giving the subject every possible chance to cough up some identification or information. If that fails, they will be arrested and taken to jail. As you correctly pointed out, establishing identity is clearly a proper police function, with an officer safety component as well, and the courts here routinely come down hard on subjects who monkey around with that, which IMO is appropriate. Thus, you wouldn't have to Mirandize a motorist at the beginning of each stop because you're performing a lawful function in asking them for identification/driver's license as part of your traffic stop. It's the stuff following the establishment of identity - asking questions so the subject's breath can be smelled and speech can be analyzed for slurring, or requesting them to perform field sobriety tests that would implicate the 5th and 6th. However, since they are not technically under arrest at that point, they need not be Mirandized. As you well know, most folks aren't aware their rights apply 24-7, not just after they get their Miranda warnings, and lots of "detainees" become "arrestees," with good cases against them because LEO's let them blab.

I may have misled you if you got the impression the obstructing case I mentioned had to do with lying about identity. In Brandstetter, the LEO's were serving a search warrant for cash believed to be the proceeds from the lawyer's client's drug dealings. IIRC, the officers handed the lawyer the search warrant and asked where the safe containing the client's cash was. The lawyer said BS, there is no safe or cash. The search turned up nothing, but after the search LEO's found an open safe in some trash in the alley. He was charged with obstructing for lying, the judge threw out the charge, the state appealed, and the Idaho Supremes agreed with the lawyer.

Could the mfr be held liable if a successful (not likely!) "cop repellent" user was later involved in a crash that injured somebody? I'd have to speculate, but I think the connection would be far too tenuous. That's not to say someone wouldn't try, costing the mfr tons of cash. Sadly, we all know of some cases where people sue mfr's for the criminal conduct of those who (mis)use their products.

[LawDog]

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.

A citation has always been an arrest in Texas. You are correct in that an arrest for an improper lane change should result in a citation, rather than jail time.

And, given no exigent circumstances, that is the way I and every other officer that I know of treat violations of the Traffic Code. Now, if during the course of the stop I find Probable Cause to believe that a more serious crime has been committed, I would be remiss if I did not investigate (within the limits of the Constitution) to ascertain for sure if that more serious crime had, in fact been commited, yes?

LawDog

[Rich Lucibella]

JHP- Hopefully this answers Ian and Don also)
Your post makes perfect sense. As for comparing SUV's to Drunk driving, I concede your point.....but only in the context of today's environment. 20 years ago, DUI was not a big deal. Due to the efforts of individuals, groups and the Media, it is today.

I'm not saying this is bad....however, unnecessary death is unnecessary death. Today it's DUI; tomorrow it's SUV's; the next day it's gun owners. The media can (and will) blur the distinctions between the individuals...easily. You had as much of a choice in purchasing that gun, SUV (or swimming pool) as did the driver who chose to drink first; you knew the dangers inherent in that object/behavior; yada, yada, yada.

While these examples will never compare to the offense of DUI, who would have believed 20 years ago that a landlord could have his building confiscated because a tenant used it to sell crack? That is the cost of insisting that the government keep us safe from others.

Regarding the process of a traffic citation, I understand. I have no problem with the officer who arrests "because he can". My argument is that the ability to do so should not even be on the books. If I failed to use a turn signal, give me a ticket. If you believe I'm intoxicated, arrest me. Just don't use the threat of arrest on the first count to get me to do a public clown act to prove my innocence on the second.

LawDog-
As I said, I have no problem with your approach or your criteria. Perhaps what am getting at is this: Traffic stops, and the laws that control them, are governed by the concept that driving is a "privilege" as opposed to a "right". As a result, we allow far too much leeway for the officer to ignore rights that, in other circumstances, would be inviolate. We do that with the threat that we can arrest you and revoke your driving privileges if you refuse to self incriminate.

I know this as it happened to me on the 4th of July, 2001 on a lake in NC. As it was raining on and off, there were about 4 boats on the lake...and twice that number of Nat'l Wildlife and Forest Service boats. I got stopped because I was running white lights that "obscured" my running lights; next was the paperwork lookover; then the lifejacket count; then the throw-pillow check; then the fire extinguisher check....finally got around to asking me to blow into the little tube....I told these gentlemen that I'd hit a .03....I blew less than that.

Welcome to Independence Day in America, 2001. These guys then proceeded to stop literally every boat that came out of the marina for one reason or another. Exceptional case? Most certainly. Unacceptable, nonetheless.


Rich

[USP45]

If I failed to use a turn signal, give me a ticket. If you believe I'm intoxicated, arrest me.

I can see Lawdog shaking his head...

In the first sentance, replace "ticket" with "arrest". Because a ticket is an arrest.

In the second sentance replace "arrest" with "custodial arrest". Because what the general public considers an arrest is actually, "being taken into custody".

I believe this is what Lawdog was saying.

~USP

[LawDog]

Regarding the process of a traffic citation, I understand. I have no problem with the officer who arrests "because he can". My argument is that the ability to do so should not even be on the books. If I failed to use a turn signal, give me a ticket.

Emphasis mine.

It has remained on the books mainly for those people who refuse to sign the tickets.

If an officer can't put someone in jail for a traffic offense, what does the officer do if the person refuses to sign the ticket?

LawDog

[Rich Lucibella]

Ian-
You were posting while I was editing.
Now we're tallking about a whole different matter. Of course a traffic infraction should result in an arrest if the subject refuses to promise to appear. But I don't see the point, in relation to the issue of unconstitutional detention at the roadside.

USP-
I understand that a ticket is an arrest and being cuffed is a custodial arrest. That's my whole point. There should be no ability to effect a custodial arrest for a rolling stop at a stop sign. If I take the summons and sign it I should be free to go. If you suspect me of another crime, I should have the right to refuse to talk with you, without being subject to custodial arrest on the first count. Ever had a cop ask you if you were carrying "large sums of money"? I have...more than once. Yet, I couldn't answer "None of your business", because of the potential consequences under current unconstitutional law. So I lied. I wouldn't think of leaving the state without a fair amount of cash on me....yesterday, that was considered "eccentric". Today, it's considered "suspicious".
Rich

[Ipecac]

Here's a website with some interesting statistics on drunk driving. http://www.duigulag.com/facts.htm These stats were pulled from NHTSA and the CDC. Read an interesting article on the true nature of drunk driving accidents rates at: http://www.reasononastick.com/

At the altar of safety we are sacrificing necessary freedoms, as Rich has pointed out. Mandatory stops (aka sobriety checkpoints) warrantless searches, etc,are to my reckoning, worse than the remote possibility I will be involved in an accident with a truly impaired driver.

The drivers that really scare me are old folks behind the wheel of large RVs. Let's talk about impaired for a bit.

[Rob Pincus]

Okay..... let's see.....


Deanf,

I guess it has been pointed out that just because "no one was hurt and there was no property damage" does not make something a "non-crime".... eg- shooting a gun at someone walking down the street. But your specific question was

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?

Well, I can't release names, but what about the wife of the person arrested? or his kids? or maybe his employer/business? Say your #1 truck driver guy gets arrested for DUI and can't drive for you for 7 days with approximately 10 minutes notice. That would screw up your business. Make you a victim? Yeah, I think so. Getting drunk and driving is stupid, it leaves trails of victims in many different ways, some less serious than others, much like drug abuse.

Others,

In VA, any traffic infraction is treated precisely the same as any misdemenaor crime for arrest purposes (VA code Sect 46.2-937 if anyone wants to read it). But, the code also demands that the driver be given the opportunity to sign a summons and promise to appear (or prepay if applicable). In fact, if an officer refuses to this, the code provides for his removal from office on grounds of misconduct. If the driver refuses to sign, he will be taken before a magistrate. Personally, I've never had to do that, but I know officers who have.

As for me, I make a lot of DUI arrests and I've given a lot of warnings to drunk drivers. I know that many people disagree, but attitude has a lot do to with the final disposition in my book. Some would suggest that it is wrong for an LEO to have that kind of discretion.. that the rules should be hard and fast, .08 and up get arrested, everyone else rolls on. The fact is that it is difficult to determin on the street (particularly with someone who is uncooperative or has a bad attitude) waht someone's BAC is. I was once put into a position of having to arrest someone who was a .05 % BAC when he took the test (appox 1 hr after arrest). This was simply because not only did he refuse to take any roadside tests, but he also refused to park his car and take a cab home unless I paid for it. There was PC (he admitted drinking, beer in car, driving on wrong side of road, blew stop sign, etc...) for a DUI arrest, so I made it, rather than risk letting this guy go off and get into an accident. At the end of the day, he had a 6 month suspension and a $1000 fine as I recall.. when he could've had a $10 cab ride.
All the .08% (or .1%) rule means is that the judge must presume that you are intoxicated if you are at that level according to a states approved testing procedure. If there is no test (refusal) or if the test is lower, the defense can introduce it as evidence, but driving behavior and other indicators can still prove you guilty.

There are examples at the other end of the spectrum where high BAC drivers have gone home in a cab based on their behavior during the stop.

Rich's point, as I understand it, is that the problem isn't with individual officers trying to do their job the way it needs to be done, the problem is the job we are given to do and the way we have to do it. You can't investigate a DUI without turning a traffic stop into a more than slight inconvenience, that's the bottom line. My advice to those who are sober (or even close) is to always be cooperative and take the tests. Be respectful and, if the tests aren't going well, maybe even apologetic. Of course, as soon as you say "I guess I've had too much..." you can bet that the statement will be used in court, so watch yourself. Hopefully, you are under the limit, or at least right at the limit. Maybe you get a cab ride, or maybe you get charged then you plead down to reckless driving.. or maybe you will turn out to be actually be drunk and you have to face the consequences... but at least you won't be turning a mountain into a molehill by giving crap to the guy with (like or not) most of the cards in his favor.

In NJ it is illegal to have hollowpoint bullets under most circumstances. That doesn't mean that LEOs are out there looking for HP bullets.. it simply means that if someone uses a gun in a crime and also has HP bullets, they are going to get more charges and a stiffer penalty. Some would have DUI treated the same way, it is not a problem until you hit/hurt somone or something. As noted above, individuals and the media have built enough of a consesus in the country to keep that from being the case, as I suspect it basically was 20 or more years ago.....

As for this gizmo, I can assure that it would not only be seen as contemptuous on the street, but I can't imagine our judges thinking too highly of it either. Asserting your rights is one thing, carrying around some radio-shack-rebellion device just in case you get in the car with booze on your breath is another.....

[Keith Rogan]

>>>>>How stupid, If you havn't been drinking, why pretend like you have something to hide? Open the window and politely answer the officer's questions. He will know you havn't been drinking and send you on your way<<<<<

Or he'll ask you to step out of the car so he can perform a search, find the marijuana seed left in the cushion by your daughters boyfriend, the .22 round that violates this or that ordinance, or nothing at all, but just treat you like a freaking criminal for 45 minutes while he rips your car apart.
The basic facts of the matter are that nobody should submit to a police search at any time, guilty or innocent. The police in this country have over the years stretched the 4th amendment to the breaking point. They can pull you over for anything from a dirty tail-light, to "you fit the profile of a drug trafficker (you're in a car..), and then search you and your property with impunity.

I'm not defending this "drunk-driving" kit per se, just suggesting that if EVERY citizen resisted having their civil liberties stepped on by some stooge with a badge who's "fishing" for an offense we'd all be better off.

[deanf]

Well, I can't release names, but what about the wife of the person arrested? or his kids? or maybe his employer/business? Say your #1 truck driver guy gets arrested for DUI and can't drive for you for 7 days with approximately 10 minutes notice. That would screw up your business. Make you a victim? Yeah, I think so. Getting drunk and driving is stupid, it leaves trails of victims in many different ways, some less serious than others, much like drug abuse.

Victims? Yes. Victims of a crime? No. Or are you suggesting that disloyalty to your employer and family is or should be a crime? If so, we had better build more jails, and I've got a list of people I'd like to swear out complaints against.

[Rob Pincus]

deanf,
We could play verbal hop-scotch all weekend if you're going to do that. You asked for victims of the crime of DUI outside of injuries or property damage, I gave you some examples. I was obviously not suggesting that screwing up you job, embarrasing your family, or causing your household financial strain are crimes in and of themselves.

Kieth,

I agree with your point, but getting out of the car and agreeing to a search are two very different things. The first you have to do if so instructed (right or wrong, that's the law of the land), the latter you should never do. If an LEO (myself included) has reason to search he can and will, if he (myself included) is fishing, you have the right to say "no." The key to a consent search is that you have to be free to go at that moment. If the LEO stil has your license or is still dealing with a traffic infraction, the consent search is not legitimate. The easiest way to difuse the situation is to ask (in as much of a non-smart-a** tone as you can muster) if the LEO is asking for your consent to search, when he says yes, ask him if that means you are otherwise free to go. Now you've got us, if we say, "Yes".. you go. If we say, "No," we explain our reason and search. It is possible that the officer is giving you a chance to cooperate even though he already has enough reason to search the car (pot seeds on the back floorboard in plain sight for example....), so be ready for that if your daughter date's a pothead.

[deanf]

You asked for victims of the crime of DUI outside of injuries or property damage,

I guess you misunderstood. It was a difficult concept to reduce to writing. I was looking for the names of victims not outside the scope of injury/death/or property damage, but rather the names of crime victims of a DUI driver who has not injured or killed anyone or caused any property damage. The way I've written it even now, it's difficult even for me to understand.

[Rich Lucibella]

Rob wrote:

. The easiest way to difuse the situation is to ask (in as much of a non-smart-a** tone as you can muster) if the LEO is asking for your consent to search, when he says yes, ask him if that means you are otherwise free to go. Now you've got us, if we say, "Yes".. you go. If we say, "No," we explain our reason and search.

Best advice I've had from the Law this year. Thanks Rob.
Rich

[Jeff White]

A police officer stops a vehicle for another moving violation. There is almost always another reason to stop the suspect vehicle. Improper lane useage, speeding, rolling thru a stop sign, burned out lights, etc. About the only time an officer stops a vehicle strictly on a report of possible DUI is when the person that reported it signs a complaint about the erratic driving that caused them to feel the driver was intoxicated. All other reports of suspected DUI are "make your own case" and if the suspect vehicle is located and the driver is driving legally then it isn't stopped. I can't tell you the number of times I've pulled over an erratic driver (all over the road etc.) certain they must be stone drunk only to find out that they are a: trying to pick up the cigarette they just dropped b: punching buttons on their radio or cell phone c: simply too old to see well enough to drive after dark any more d: eating e: fixing makeup/adjusting clothes. All of these things cause drivers to weave in and out of their lanes, or drive so slow that they are a hazard to the rest of traffic ( 25 in a 65 etc.) and are violations of the Illinois Vehicle code. Actually the consequences of doing them are, it's not yet illegal to do any of those things while driving. Hmmm...guess I just made the case as to why it's not necessary to make it against the law to do those things while driving, the erratic driving they cause is already illegal, imagine that

The officer stops the vehicle and asks the driver for license and proof of insurance. (In some states they ask for registration too).

The driver either reeks of alcohol the minute the window comes down or has slurred speech when replying and makes the officer suspect that the driver may be intoxicated. (at this point Rich thinks the officer should issue the citation on the original violation and then what? Mirandize the driver before proceeding? Detain the driver while you apply for an arrest warrant? End the enforcement action and let the driver continue on his way, because you don't have enough to arrest the driver for DUI? )

The officer then asks the driver to step out of the car. Often if the odor of alcohol isn't too overpowering and the driver moves and reacts well, the DUI investigation ends here. Most officers here would use the horizontal gaze nystagmis test at this point. It's not embarressing or degrading to the driver and is pretty accurate. If the nystagmis is ok, the DUI investigation stops and the enforcement action is completed on the original violation and the driver is free to go after posting bond or signing the ticket in other jurisdictions. If the nystagmis indicates the driver is probably intoxicated, the driver may be asked to blow into a PBT (portable breath test not admissible in court here except as PC to make a DUI arrest) or perform other field sobriety tests. If the driver fails these tests or the PBT indicates a BAC above the legal limit (.08 here in Illinois) the driver is placed under arrest for DUI and transported to the station. At the station the driver is Mirandized, read the Warning to Motorist (a state requirement concerning administrative suspensions after a DUI arrest) and asked to blow into the breathalyzer. Even if the driver refuses to take the breathalyzer, he/she is asked the questions from our DUI worksheet. The questions are things like; What is your name? What time is it now? Where do you live? etc. Answers if any are recorded verbatim on the form. The driver is advised that there is no requirement to answer any of these questions. At this point the investigation is over and the driver is booked for DUI. We've found that the driver's answers on the DUI worksheet go a long way in court here, especially if they refuse to blow into the breathalyzer or submit to a blood test.

These procedures are legal and upheld by the courts here. I'd like to here what constitutional concerns you have with this. To me it seems pretty well balanced between the individual's right to go about his/her business and everyone elses' right to have the public roadways be relatively free of impaired drivers.

Like Rob, I have taken impaired drivers home, or stood by while someone came to get them. Society is not always best served by an arrest for every violation of the law.


Jeff

[Byron Quick]

Lawdog,

I'm glad you clarified your initial post. Until you did clarify- it sounded as if you were talking about "creative" charges. I was the victim of that once. I don't care for it.

Personally, I would let DUI drivers go...until they hurt someone. Then I would inflict upon them the exact injuries they inflicted upon their victim(s). I've got a distant cousin who had several DUI's with the usual consequences-fines, license suspension for various amounts of time. Then he ran head-on into a motorcyclist at 70 mph in the other guy's lane. He spent several years in the pen. When he got out, I encountered him sitting in his car in a parking lot one night (drunk). He started mouthing off about how he was wronged by being imprisoned. I said,"Charlie, the guy you hit isn't getting out in a few years...he's in a hole in the ground. I'll tell you what I would have done to you. I'd have strapped you on a motorcycle fitted on rails and run you into a brick wall at 130 mph." My cousin doesn't talk to me anymore.

[Don Gwinn]

No, Rich, you can't equate actions with possessions. Just because some gun-grabber or other sort of bliss-ninny will attempt it (and you're right, they will and they are) doesn't mean we should do it first. Actions are not objects. Drunken driving is NOT comparable to gun ownership, carrying, or responsible shooting in any way. It is comparable to shooting in ways that tend to get people killed and maimed--and doing so in public places. It is a behavior which is known to kill people. Simple as that.

[LawDog]

Spartacus, I can't say that I've never wanted to start piling tickets on top of tickets during a stop (One ticket per cussword, buddy. Just keep your mouth running...), and I can run some eloquent diatribes on why I should be allowed to stack tickets I've never done it and I doubt if I ever will. (Bad conscience! Bad, bad conscience!)

The creative charges a la Porky's (*smash* Missing tailight *smash* Two missing headlights) are Official Misconduct, Abuse of Office, Intimidation and just plain morally and legally wrong. I wouldn't do something like that, and any officer I see doing that is going to be brought up on charges by Yours Truly.

I blame it on my upbringing, and my initial training under a constitutionalist/Old West sheriff.

As far as letting the DWI drivers go...well, I would rather arrest a man for DWI, than let him go and wind up arresting him for Homicide. DWI is bad, but it's a hell of a lot better on your record and on your conscience than murder.

DWI hurts you and your family. Murder hurts you, hurts your family much worse than a DWI conviction does and murder hurts the victims family far worse than anything else you could do to them. And it hurts me when I have to wake somebody to tell them that their loved one is dead.

Would I love to do to a DWI driver what he did to his dead victim? Oh, yeah -- but running the driver into the ground at 100 MPH isn't going to bring back the person that he killed.

LawDog

[Rob Pincus]

Your welcome, Rich... If I ever retire I'll give out some real nuggets .


FWIW, the procedure that Jeff describes is basically the same in VA.
Hooked a guy last night, .19 in the field, .16 at the official test (PBTs are not admissable in VA). 4 time loser, this one was a felony and he faces a mandatory year in jail if convicted. He was still suspended from DUI #2(1997) and DUI #3 comes to court in August. His first was in 1995.. makes you wonder how many times he hasn't been caught and glad that he hasn't killed someone yet that we know of....

[Jeff White]

Rob's arrest last night illustrates how far we've come with DUI enforcement. Most of who we arrest around here now are repeat offenders. My last DUI arrest was a woman who was driving on a DUI ticket (the mandatory suspension wasn't in effect yet) issued by a state trooper a week and a half earlier. She had had two previous DUIs in Texas. (maybe Lawdog wrote one of them? )

But here's the problem. The great strides we've made in keeping impaired drivers off the road is not enough for the people who are now making their living from this issue. There is a move afoot to lower the threshold BAC level from .10 to .08 nationwide. Many states have already jumped on board. But IMHO we've already reached the point where we are about to give up more personal freedom then is necessary to keep ourselves reasonably safe from drunk drivers. After the national standard is .08 and we still have drunk drivers, we always will as long as we have alcohol and motor vehicles, the cry will be for more laws, stepped up enforcement, and more loss of personal freedom. We will hear the same arguements that the antis use against us, things like; "If it saves one life it's worth it". In another 15 years, responsible use of adult bevereges outside of one's own home will be effectively banned. We'll have prohibition without the Volstead Act. But guess what, we'll still have tragic accidents in which innocent people are killed and maimed by impaired drivers. There will be a big cultural shift in how we entertain ourselves, the politicians and trial lawyers will sue the brewers and distillers for the "damages" to society that their legal products cause. Liberal politicians will use the money from the suits to create more agencies to control and regulate us. TFL members will post long diatribes on how the evil police officers are out to enslave them, and sad posts about how life used to be will accompany the anti police posts.

WE NEED TO AWAKEN OUR FRIENDS AND NEIGHBORS TO WHAT"S HAPPENING AROUND US!!

Our freedom and our way of life is being chipped away at on so many fronts. Seemingly harmless laws can have serious unintended consequences. No one here thinks that drunk driving is a good thing and it's very easy to not speak up when these tighter restrictions are imposed. Who wants to be seen as pro-drunk driving? I'd bet no TFL member wants to be seen that way. So we don't speak up now. We'd better speak up in the future or resign ourselves to live without some of the freedoms we have now. It's not just about guns, it's about our culture and way of life.

Like it or not, the police will work within the laws and guidelines they are given. If you don't like the way the courts are ruling, have the laws changed, that's the way it's supposed to work.

Jeff

[Jhp147]

Going from cute lawyer tricks to civil liberties to practice and policy to drunk driving in general, now going back to civil liberties with the last post. Which has a point I agree with by the way. My general feeling is that the .10 to .08 was a "feel good" measure, like a lot of gun control laws. I have never consumed alcohol and taken an Intoxylizer, but the guys who have as part of their class to certify to use the instrument say that they were way past "drunk" and into "walking comatose" at .10. I don't think going from that to a bit less drunk means anything, especially when prosecutors and juries in Texas, at least, are not bound to convict at any level. The way to really take them off the road is to make it easier for officers to process the DUI arrest. Locally, a DUI arrest will consume,easily, 3-5 hours of a shift. You are stuck listening to a drunk for a lot of that time, plus report writing. I know we are paid to do it, but when you know that you are in for a major hassle, you get a bit picky about arrests. I know this is anecdotal, but I think this is why most BACs show above .18-.20, usually into the mid .20s when they blew. I'm sort of removed from night shift now, so that may not be as accurate as it was in years past.

[Rich Lucibella]

I guess I'm still not getting thru. I am uncomfortable with a process that punishes someone for refusal to self incriminate. The current license "privilege", traffic stop "custodial arrest" scheme does exactly that.

If you are suspected of a crime (DUI) you will either self incriminate or suffer a loss of your rights. This, to me, is a Constitutional absurdity. In no way does it differ from a law which would allow officers to insist on a snippet of everyones hair at a crime scene for DNA testing/banking; subject to loss of driving rights or "custodial arrest"....or a sample bullet from every firearm within a two block radius of a shooting.

It simply reeks of invasion of privacy and lack of due process. The concept that, in DUI's, the person is already "under arrest" for a traffic violation makes it no more palatable, given the fact that virtually every driver/auto on the road can be pulled over for any one of a number of infractions.
Rich

[Jhp147]

Rich, I don't know if this helps or not, but FWIW, if a person were to refuse to answer my queries except for what is required for a traffic stop, that is okay. If he refuses the field sobriety tests, that is okay, especially if he explains that he is indeed doing that to avoid self-incrimination. Folks do it all the time, and don't even have to hand out the cheesy card the shyster is hawking. I will make my judgement on what info I have available...if all I have are LEGITIMATE MOVING violations that make me think the guy is DUI, not just DWHUA, coupled with indicators of alcohol consumption that I can observe without the drivers consent/permission, I will make my judgement based on that, and either arrest the guy for DUI (we DO NOT issue citations to folks for DUI) or cite and release. If a guy hands me his lawyer card that brought this whole thing up, I might think....Hmmm, he is hiding something. If, on the other hand, he politely declines specific interaction and tells me he is doing so due to his awareness of 5A rights, that is fine. That is not to say some troops won't take it personally, I'm just saying I won't. I'm not sure Constitutional Law is really taught with the proper emphasis in police academies. Hell, they don't even teach it in public school. I'm not sure if we are even talking about the same thing. If we are, and we disagree, that is okay by me, too. I'm glad to have a place to do it, BTW.

[Keith Rogan]

Rob,

Thanks for clarifying the "law of the land". A couple of points though, firstly I don't see any reason for a citizen stopped on a routine traffic violation to get out of his car, in effect submitting to a search because the the first thing the cop is going to do is pat him down.
I will grant that if the violation is one associated with drunk driving (swerving, reckless, etc), or the citizen has alcohol on his breath or whatever, fine - probable cause.
But being pulled over for speeding or having a cracked tail-light and then being asked to exit your vehicle is nothing but a fishing expedition, a shakedown.
I'm sure that MOST cops take advantage of these rules and send the citizen on his way none the worse for wear, but that's hardly the point. I don't think citizens should be bound to "obey the orders of a policeman" or to submit to a search unless they are committing a crime and the policeman has REAL reason to suspect that. If you give people power to abuse, some people will abuse it.
And I don't give a damn if a few criminals slip away because police powers are limited. It is infinitely more important that the rights of the rest of us are left intact. If we have to infringe our own rights to fight crime, we've lost anyway.

[[email protected]]

I fail to see what the hubbub is. You get behind the wheels, loaded, and you are guilty of wanton endangerment.

It's not a "victimless crime" just because you didn't kill someone, any more than driving a truck bomb into a school playground wouldn't be a crime if the bomd didn't go off. You willfully and voluntarily decide to operate a piece of heavy machinery while impaired, at the risk of injuring / maiming / killing others.

I guess I'm just too black and white, but that's how I see it.