Officer charged with DUI refused breathalyzer

[Judi Lynn]

July 22, 2006

Officer charged with DUI refused breathalyzer

By JIM HAUG
Staff Writer

PORT ORANGE -- Several local police officers charged with drunken driving in recent years share something else in common, as well.

They all refused to take a breathalyzer, thus depriving prosecutors of a blood-alcohol reading that could be used against them in court.

"If you have been drinking, refusing the breathalyzer is the only way to go," said Brian Toung, a Daytona Beach defense lawyer.

"The police, or anybody who understands the system, knows they're better off without it."
(snip/...)

http://www.news-journalonline.com/NewsJournalOnline/News/Local/newEAST01072206.htm

[Warpy]

1. Refusing a breathalyzer is an automatic license suspension here

so most take the breathalyzer and hope they can beat it.

Anyone who has failed a breathalyzer test needs to get a serum alcohol level drawn ASAP. If you've been drinking and are trying to game the system, it will convict you. If the breathalyzer is out of calibration, it can save you a conviction.

Cops are refusing the breathalyzers because they know they're not calibrated often enough.

[reichstag911]

2. I suspect...

...they're refusing the breathalyzers because they know they're drunk, not because the machines are not properly calibrated.

[sgxnk]

11. you are correct

breathalyzers are RIDICULOUSLY accurate

[Gman]

5. I don't agree

Texas has legislated some harsh laws regarding refusing a breathalyzer including immediate license suspension. Nevertheless, if you're not convicted, you're not convicted, period its over. You have no felony on your record. The short term penalties are much better than the long term implications. I've never been stopped but I guarantee you I will never take a breathalyzer.

[sgxnk]

12. felony?

um.. generally speaking, in most jurisdictions (save exdceptionally aggravating circ's) DUI is a misdemeanor.

in hawaii, it's a petty misdemeanor, for example

[Gman]

17. I was referring to DWI

I think these guys were probably charged with DUI instead of DWI because of no breathalyzer results.

[sgxnk]

21. UM

there is no distinction

every state varies

some states refer to it as DUI, others DWI, some OUI (operating under the influence, etc.)

my point is that in nearly every jurisdiction, garden variety 'drivin' drunk' to use the layman's term is a

MISDEMEANOR

in some jurisdictions it becomes a felony when there is

1) accident with injuries
2) multiple prior convitctions within a certain timeframe)

etc.

but generally speaking DUI/DWI/OUI etc. is a MISDEMEANOR

spoken as somebody who has MADE over 200 dui arrests

[SensibleAmerican]

24. Our breathalizer laws in TX are more lax than most

Namely, it is not a criminal offence not to submit a test, just an administrative offence.

[msmcghee]

31. Better yet . . .

. . stay off the damned road if you've been drinking.

They usually don't ask you take a breathalizer test if they don't have a good reason to think you'd fail it. Usually, they just try to get a whiff of the air in the car when you roll down the window. It's obvious if you know what to smell for.

The breathalizer has saved countless thousands of lives by keeping assholes who shouldn't be driving off the roads. Some lucky few even end up in jail for a while where they belong.

[fishnfla]

6. The breathalyzer is the prosecuters best evidence

without it, there is a greater likehood your case, and the automatic suspension for refusing the test, will be tossed out.

I was told that if you are perhaps borderline DUI, refuse the breathalyzer and say you want a blood test instead. Its more accurate. You have to state you will pay for the cost of the test. By the time you get to the hospital for that test, your BAC will have most likely gone down below the legal limit.

On a side note: why is my hometown always in the news? For DUI Port Orange FL was ranked the highest arrest rate per capita in the nation. The corner of 421 and US 1 the #1 spot in the entire nation. Just about everyone I know has been stopped, myself included. Nobody goes out around here anymore at night.

[reichstag911]

19. In Illinois,...

...you get an automatic 6-month statutory summary suspension for refusing the breathalyzer. Regardless of the criminal DUI proceedings, if you wish to have that automatic suspension overturned, you must file a Petition to Rescind, which creates an unrelated civil proceeding.

I had a situation where I was pulled over in a black neighborhood (for being white, because I'd committed no other infractions) and objected strenuously to the stop -- I can be a nasty prick when douchebag cops stop me for nothing -- demanding to be told the probable cause for the stop. Well, in Chicago, the cops hate anyone who's actually slightly familiar with the law, so they piled on the ticketss, including a DUI. The "criminal" part of the case was dismissed because the cop was such an idiot, he couldn't keep his lies straight in court but, unbeknownst to me at the time -- because I used a public defender and pretty much guided him through the trial -- that automatic suspension was not automatically rescinded by an acquittal in the "criminal" case.

Here's the catch, though: Because I used a PD on the DUI, he could not, by law, advise me on the parallel civil matter that I needed to initiate to get my license reinstated. And the statutory period during which I could file the Petition to Rescind had passed, with no warning or notification in any of the paperwork I'd been given.

Long story short(er), this went on for a couple years because I got stopped a couple times while my license was thus suspended, and charged with driving on a suspended license, until ultimately, I filed a pro se appellate brief to have the time limit during which I could have a hearing on my PTR -- because of the lack of notice -- disregarded. The State's Attorney, who almost never concedes, I've been told by lawyer friends, opted not to file a reply brief in the matter, instead filing what's called a Confession of Error" by the trial court judge. I fought the law, and I won.

:bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce::bounce:

[msmcghee]

32. If you're borderline drunk, stay the *uck off . .

. . the road.

[BrokenBeyondRepair]

28. isn't DUI automatic license suspension anyways?

if i were a drinker and driver i.e. moron, i'd take my chances and refuse..

[Lefty48197]

3. Blowing the breathalyzer is like signing a confession

for those that are above the legal limit.

[TankLV]

4. Cops are held to higher standards.

If we're going to grant them all sorts of benefits - such as increased penalties for shooting a cop, taking the officer's word over the accused, etc., they ought to be held to almost PERFECT standards.

If they violate those standards, they're off the force. Period. No if ands or buts.

These officers, every single one of them, should be kicked off the force and prevented from joining any other jurisdiction's force.

[sgxnk]

13. generally,

since alcoholism is a 'disease' cops are not fired for a dui, even if guilty

generally speaking, they get suspensions and mandatory AA classes, etc.

[reichstag911]

20. I'm with you.

The generally unaccountable bastards should face consequences for the crimes and rights violations they regularly commit, and for the professional perjury that their "testilying" amounts to.

[Little Star]

7. I'd like to hear of one cop who ever took a breathalyzer.

None would ever be so dumb. Short term loss of license is much better than a long time record.

[sgxnk]

14. i personally know

two cops who took a breathalyzer after being arrested for DUI

personally

[sgxnk]

22. i know 2

i know 4 PERSONALLY who took a BT

out of 4 arrested

laws vary from state. in my jurisdiction, about the only people who don't take the BTest are those who already have a suspended/revoked license for previous DUI's

your claim that cops would never take the BT is soundly trumped by n=4

[spindrifter]

8. Please check your own state laws re penalties

for refusing the breath test. There is the issue of the 1-year license suspension, for example. The other issue people forget is that impairment may be provable without the breath test. In some states the "value" may be in not qualifying for a greater punishment if the penalties are related to increasing alcohol-breath levels.
You should be able to talk to a lawyer--either private or public defender--before you make the decision--do it!

[crankybubba]

9. you milage may vary

You should be able to talk to a lawyer--either private or public defender--before you make the decision--do it!

in my state you are NOT entitled to speak with an attorney prior to making a decision weather to take the states test.

[teryang]

18. Right, you agree to breathe, blood or urine test with license

That is why a refusal results in a DL suspension. That is the law in Florida anyway. You don't have the right to consult with an attorney first.

Did you know that taking prescription meds can result in DUI? Some people think that because the prescription is legal, it's okay to drive. Wrong! DUI standards apply. After a negative breathe test, usually given in response to field sobriety exercise outcomes, the urine test for drugs is next. Doesn't matter if you have a script unless you are also being charged with illegal possession of controlled substance.

[sgxnk]

25. correct

in some states, you DO have the right to consult with an attorney prior to the BT. in others you don't

in some states, your refusal to take a BT cannot be used against you (or even mentioned) in court.

in others it can

the BT is "direct evidence" not testimonial. states differ on whether the right to consult with an attorney prior to BT administration exists, and of course that's often dependant on their state constitution

[TX-RAT]

30. have the right to consult with an attorney prior to the BT.

You have a link to that one?

[sgxnk]

15. depends on the jurisdiction

in some states, you do not have the right to speak to an attorney before taking the Breathalyzer (hawaii used to be like that), for example

the BT is direct, not testimonial evidence, btw. so, it is not required under miranda v. arizona by some reckonings (and HI is a good example)

[AlecBGreen]

10. hmm

If you refuse a breathalyzer and instead opt for the blood serum test, you may actually record a HIGHER BAC. This came up in Virginia because a local judge was dismissing all DUIs regardless of BAC. Here's the reason - when you drink, it takes a while for the alcohol to soak into your blood. Lets say you down a 6 pack in 10 minutes (anybody here go to college? ;) ) and immediately get in your car. If you are pulled over, you could still be sober enough to drive, but as time progresses and you wait for a blood test, your BAC goes up as the alcohol enters your system. So...waiting is not always the best idea. Still, if cops are refusing...

[sgxnk]

16. um,

if cops are refusing (and most Cop dui cases i know they took the breathalyzer), the state has no more right to REQUIRE them to take it, than they do of ANY other citizen

there is this pesky thing called the rule of law

fwiw, you are correct that the blood test will almost always read higher than the breath test

the reason is that the breath test formula is designed to calculate the correlated blood alcohol level based on the particles in the breath. it HAS to err on the side of caution or it would be inadmissable. so, it errs below the actual blood level by DESIGN

this is basic BT stuff. any cop that has taken a class in BT administration knows this

[SensibleAmerican]

23. Breathalyzer refusal is an automatic licence suspension in TX, with the ..

caveat that if you go to trial and win (an acquittal) the licence suspension is voided and removed from your record. A dismissal will not accomplish expungment, however.

[Xithras]

27. California doesn't have that caveat

Here, a refusal to submit to testing is an automatic suspension...period. If later testing proves that you had no alcohol in your system, you cannot get your license back. The legal mindset is basically "If you're sober, take the test and get it over with". When you get a license in this state, you actually have to sign a form acknowledging the states right to revoke your license without recourse if you fail to submit to any sobriety test. It's been fought, but the state has won every time.

[sgxnk]

29. yes

it holds for a few reasons

1) license suspensions are administrative actions, NOT criminal
2) driving is a "privilege" not a right

[Lochloosa]

26. I wonder if the shurb refused to take one?

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