No refusal" DUI checkpoints could be coming to Tampa

[c6dino 2]

Florida is among several states now holding what are called "no refusal" checkpoints.

It means that if you refuse a breath test during a traffic stop, a judge is on site, and will issue a warrant that allows the police to perform a mandatory blood test on the spot.

 

What is more interesting is the last sentence of the article: "U.S. Transportation Secretary Ray LaHood has recently said he wants to see more states hold similar programs."FLA No Refusal

 

Texas also

 

Don't get me wrong, I am not in favor of Drunk Drivers, I think that they all should be put in jail, this just seems to be a way to fast track non-compliance and disregard a persons civil right to a fair trial and to have proper representation in court. I don't drink and drive so I am not concerned, but what if you are stopped and a mistake is made, ie handling of the evidence what legal recourse would you have?

[Regulator72 80]

NJ already has something like this;

 

In New Jersey if you get arrested for a DUI, you must take a Breathalyzer test. When you get your license in New Jersey, you give consent for this test, known as "implied consent." If you refuse to take a Breathalyzer test, you will be detained and brought to a hospital where hospital staff may draw blood.

 

If you refuse a Breathalyzer test, you will face the same loss of driving privileges as a DUI offense.

[civictuner04 6]

i thought if you decline a brethalyzer test your automatically pleading guilty to the dui but im probabbly wrong

[Anselmo 87]

The issue I read was regarding multiple DUIs. That people on their 3rd or more DUI would face much stiffer penalty for DUI than for refusal and law enforcement needed a way to close that loophole.

[vladtepes 1,060]

refuse the breathalyzer automatic DUI guilty is fine with me...refuse the breathalyzer be forced to submit to a blood test.. that is ridiculous IMO..

[Malsua 1,422]

refuse the breathalyzer be forced to submit to a blood test.. that is ridiculous IMO..

 

 

Strikes me as a 4th and/or 5th amendment violation.

[vladtepes 1,060]

Strikes me as a 4th and/or 5th amendment violation.

 

 

just seems grossly unethical.. as a blood test could yield all sorts of information you may not want to be public.. prescription drugs you might be on (legally)? just seems ridiculously intrusive.. and it seems simpler enough just to say "you refused the breathalyzer that is an admittance of guilt"

[Malsua 1,422]

just seems grossly unethical.. as a blood test could yield all sorts of information you may not want to be public.. prescription drugs you might be on (legally)? just seems ridiculously intrusive.. and it seems simpler enough just to say "you refused the breathalyzer that is an admittance of guilt"

 

The issue is that refusal of the Breath test had penalties that were different than a true DUI. Yes, you lose your license but a lawyer can later argue that you were scared that you were being entrapped and get you a lighter sentence. Also, the amount of time it took to get the blood test allowed your system to purge some alcohol, potentially getting you below the limit. The reality is, if you're drunk, there is no advantage to taking the breath test and every advantage for not taking it.

 

I have issues with this on a rights issue, not because I'm for drinking and driving. I don't drink so it's really academic for me.

[BRaptor 68]

A judge is going to issue an order to draw blood on the spot at a checkpoint? I smell a 4A/14A violation. Drawing blood against a suspect's will has been held to be acceptable by the Supreme Court, but that was after establishing probable cause (suspect was in a car accident, officers smelled alcohol on his breath and he showed other signs of intoxication). Suspect refused breathalyzer and police ordered a doctor to draw blood. So, the Supreme Court only said the police had probable cause and implicitly said there were exigent circumstances (loss of blood alcohol content) to waive the warrant requirement.

 

The Supreme Court NEVER said that there was no Probable Cause requirement. So, the on-site judge better find probable cause or he may be committing a 4A/14A violation and opening himself and the police to a civil suit.

 

If I were the judge, I would Order (as in Court Order) the driver to take the breathalyzer (which is much less intrusive and more likely to be permissible with less than probable cause). Then, when the driver refuses, find him in contempt of court and order him to be locked up for up to 30 days. Then, when the suspect is being arrested on the contempt charge, the police can get closer to smell alcohol, observe intoxicated behavior etc. in order to establish probable cause for DUI, then the judge can order a blood test on the information obtained during the arrest. If there is no smell of alcohol or other factors to establish probable cause, the contempt conviction can add more penalty to the penalty for refusing the breathalyzer and make it much less desirable to refuse.

 

It might seem academic or just symantics, but there are very real requirements for ordering so much intrusion as a blood test. Just going from check-point to blood drawing is taking too many liberties with our Constitution in my opinion.

[Anselmo 87]

I think the police need probable cause to order the breathalyzer. The probable cause is established by the roadside sobriety test, bloodshot eyes, involuntary eye movements, etc. The police can't require everyone/anyone at the checkpoint to take a breathalyzer without probable cause.

[joejaxx 38]

I think the police need probable cause to order the breathalyzer. The probable cause is established by the roadside sobriety test, bloodshot eyes, involuntary eye movements, etc. The police can't require everyone/anyone at the checkpoint to take a breathalyzer without probable cause.

 

Here is your answer guys ^^^^^^^^^

[vjf915 456]

Don't get me wrong, I am not in favor of Drunk Drivers, I think that they all should be put in jail, this just seems to be a way to fast track non-compliance and disregard a persons civil right to a fair trial and to have proper representation in court.

No offense but....what the hell does a checkpoint have to do with a fair trial and proper representation? I am really interested in the answer to this question.

 

My opinion depends on how this is played out. If they use this every once in a while, and there is no major wait....I am fine with blowing in a machine in order to make it easier for them to catch some scumbag who could continue on to run over a child, or cause an MVA that kills others. If it severely impedes my way of travel, then I would have a problem with it.

[halbautomatisch 60]

This is what's going to happen with this.

 

The police are going to arrest someone on suspected DUI.

That person is going to refuse a Breathalyzer.

The judge is going to sign a warrant to order blood to be drawn.

The test results will come up with a BAC of 0.0.

The suspect will sue for violation of their civil rights (drunk driving is a misdemeanor after all).

 

After several lawsuits and payouts, they will stop ordering blood drawn on simple refusals, and reserve it for more egregious crimes.

 

Any cop who has been working long enough can tell you that occasionally people do get brought in on suspected DUI and they end up blowing a 0.0.

[67gtonut 847]

We all do understand that unlike firearm ownership, that is a Constitutional Right...

 

a Driver's License is a privilege.....

 

IMHO..... I have zero tolerance for driving after drinking...... zero. .08 is still too high for some people, I think it should be lower still.

 

/flame suit on

[vladtepes 1,060]

We all do understand that unlike firearm ownership, that is a Constitutional Right...

 

a Driver's License is a privilege.....

 

IMHO..... I have zero tolerance for driving after drinking...... zero. .08 is still too high for some people, I think it should be lower still.

 

/flame suit on

 

the problem with BAC level is it takes absolutely no consideration for an individuals tolerance to alcohol.. for some.. .08 might be too high.. .08 might be nothing for others.. it would really be different from one person to the other.. the ability for an individual to function from one person to another would vary greatly even at the same BAC level..

[Jon 264]

the problem with BAC level is it takes absolutely no consideration for an individuals tolerance to alcohol.. for some.. .08 might be too high.. .08 might be nothing for others.. it would really be different from one person to the other.. the ability for an individual to function from one person to another would vary greatly even at the same BAC level..

 

This is one reason why LEOs must show probable cause utilizing field sobriety tests prior to collecting breath samples.

 

If you fail the field sobriety tests you should not be driving, regardless of BAC. This is also how you can be charged with "Driving Under the Influence" instead of "Driving While Intoxicated" even if you are under the legal limit of BAC.

[vjf915 456]

the problem with BAC level is it takes absolutely no consideration for an individuals tolerance to alcohol.. for some.. .08 might be too high.. .08 might be nothing for others.. it would really be different from one person to the other.. the ability for an individual to function from one person to another would vary greatly even at the same BAC level..

I agree with you, I don't like the levels either. That's why I think it should be illegal to drive under the influence of ANY substance, regardless of the amount in the persons system.

[Babaganoosh 192]

I agree with you, I don't like the levels either. That's why I think it should be illegal to drive under the influence of ANY substance, regardless of the amount in the persons system.

 

Good luck with that. Know how many people are walking around pumped full of drugs like Xanax these days?

[vladtepes 1,060]

Good luck with that. Know haw many people are walking around pumped full of drugs like Xanax these days?

THIS..

 

and besides that.. is it really fair to say I can not drink a single beer with dinner and then drive home.. that is pretty ridiculous...

 

the problem is the same as the whole cell phone thing.. instead of demonizing the action (being so drunk that you can't focus on driving correctly.. being so distracted talking on the phone.. texting.. changing the radio station.. that you are not focused).. we demonize the item and make arbitrary rulings, like BAC level which is useless because it does not address varying degrees of tolerance.. or banning cell use altogether.. I am fairly confident.. that while cruising.. at a reasonable speed with next to no traffic I could take a 20 second phone call.. but no.. we just make it all illegal or require a hands free.. that does NOT address the problem.. the problem is not paying attention.. talking on the phone for 45 minutes completely devoted to the conversation is not any safer on a hands free device.. you are STILL not paying attention.. we should just address the core problem.. driving a vehicle with disregard to the safety of others.. if you are drunk... if you are on drugs.. if you are texting.. nothing of it would really matter because you are still addressing the core problem.. which is driving with disregard to the safety of others..

[vjf915 456]

Good luck with that. Know how many people are walking around pumped full of drugs like Xanax these days?

How does that make it acceptable though? I understand your point, and it is a valid point.....but that doesn't mean we should let it slide.

THIS..

 

and besides that.. is it really fair to say I can not drink a single beer with dinner and then drive home.. that is pretty ridiculous...

 

the problem is the same as the whole cell phone thing.. instead of demonizing the action (being so drunk that you can't focus on driving correctly.. being so distracted talking on the phone.. texting.. changing the radio station.. that you are not focused).. we demonize the item and make arbitrary rulings, like BAC level which is useless because it does not address varying degrees of tolerance.. or banning cell use altogether.. I am fairly confident.. that while cruising.. at a reasonable speed with next to no traffic I could take a 20 second phone call.. but no.. we just make it all illegal or require a hands free.. that does NOT address the problem.. the problem is not paying attention.. talking on the phone for 45 minutes completely devoted to the conversation is not any safer on a hands free device.. you are STILL not paying attention.. we should just address the core problem.. driving a vehicle with disregard to the safety of others.. if you are drunk... if you are on drugs.. if you are texting.. nothing of it would really matter because you are still addressing the core problem.. which is driving with disregard to the safety of others..

If you let it get to the point that someone is driving with the disregard to the safety of others, then someone is already in harms way. The point is to STOP people from driving under the influence....not have something to charge them with after they already run someone over. And again, I understand where you are coming from....but what you are suggesting would require the laws to be left up to so much interpretation and so much discretion of the officer, that it would be way too easy to challenge in court. Laws that are clear cut, yes and no, good and bad, black and white.....those are the laws that are hard to fight. Here is an example:

 

George is driving down the street with a BAC of .15. He is clearly intoxicated, and it is obvious that his intoxication is inhibiting his ability to safely operate his vehicle. Officer Smith witnesses this, and pulls George over.

 

Scenario A: George blows a .15 into the breathalyzer, gets arrested. During trial, evidence is shown that George blew a .15, and he is convicted.

 

Scenario B: The officer performs various tests on George to determine whether George has a high enough tolerance to safely operate his vehicle. There are two things that can be done, Officer Smith can either arrest George, or let him go.

1) If Officer Smith lets George go, and later that night George injures someone with his vehicle due to his intoxication, Officer Smith will get sued by the individual or family of the individual who was injured because he should have arrested George.

2) If Officer Smith does arrest George, then George's defense attorney will immediately go straight to questioning Officer Smith's credibility, and what training he has to determine whether George was actually intoxicated or not.

 

In a perfect world, your idea would work. We are FAR from a perfect world, and I am sorry.....it would not work. With having a legal limit, it is as close to cut and dry as possible.

[vladtepes 1,060]

How does that make it acceptable though? I understand your point, and it is a valid point.....but that doesn't mean we should let it slide.

 

 

the point is ANY medication, drugs, alcohol, etc.. could alter you in some way..

 

if you are legally prescribed xanax and not a walking zombie because you are used to the effects.. why the hell should you be denied the ability to drive.. further.. most of that stuff can only be screened through testing.. and can stay in the system after the effects are worn off.. so you would run into a really hard time establishing when the person was on the drug and when they were not..

[vjf915 456]

I was referring more to alcohol and illegal drugs, but let's not get into that discussion again :thsmiley_deadhorse:

 

In case you didn't see, I edited that post to include a response to your post.

[JackDaWack 2,895]

Don't forget in NJ i believe a year or two ago they recognize driving "drowzy" or sleepy to be just as bad as driving under the influence. Don't ever use the excuse im tired!

 

Vlad makes some very good points i cant help but support. Medications in particular effect individuals differently on many different levels. I've seen people smoke a little weed and freak out, and i've seen people take down boat loads of smoke and be just fine. That's just a small example, but again two people being prescribed xanax...one could operate a vehicle and be fine, while the other can't stand up, sometimes its just the effect the drug has on you in particular and doesn't even have to do with tolerance.

 

Now the problem is the way you determine if some one can operate a vehicle... If you can pass a field sobriety test then that should be the end of any questioning....but rarely is it. The sobriety test should focus on your ability to operate a car...and they have a good method in place already. I don't see the need to go anywhere near blood testing. If you fail the sobriety test, breath test away, if refused it's an automatic fail and you go to jail. I dont know if you guys know this but a blood test is extremely expensive, your looking at over $1k for one test.

 

This country is really set on the whole drug war money pit that's been in place for so long. I'm more for cops actually making sure people are OK to drive then wasting money on what exactly there "on". If you can't drive safely then you should be fined/locked up/license revoked/ what ever! but to waste moeny just trying to figure out what exactly there on seems pretty redundant, you know they can't drive, cite them, arrest them, move on.

[vladtepes 1,060]

Don't forget in NJ i believe a year or two ago they recognize driving "drowzy" or sleepy to be just as bad as driving under the influence. Don't ever use the excuse im tired!

excellent point.. I recall reading about that..

 

Now the problem is the way you determine if some one can operate a vehicle... If you can pass a field sobriety test then that should be the end of any questioning....but rarely is it. The sobriety test should focus on your ability to operate a car...and they have a good method in place already. I don't see the need to go anywhere near blood testing. If you fail the sobriety test, breath test away, if refused it's an automatic fail and you go to jail. I dont know if you guys know this but a blood test is extremely expensive, your looking at over $1k for one test.

 

+1 could not agree more!

 

This country is really set on the whole drug war money pit that's been in place for so long. I'm more for cops actually making sure people are OK to drive then wasting money on what exactly there "on". If you can't drive safely then you should be fined/locked up/license revoked/ what ever! but to waste moeny just trying to figure out what exactly there on seems pretty redundant, you know they can't drive, cite them, arrest them, move on.

 

again you hit it right on the head.. great post!

[KpdPipes 388]

Some of the MISinformation here is scary...

 

#1 "Implied Consent" is the law in EVERY SINGLE STATE, Not just NJ. By Accepting a Driver's license you are Consenting to providing Samples of your Breath for the purpose of determining the content of Alcohol in your Blood. This is NOTHING New it has been in place for Decades.

#2 Refusing the Breath test is a Separate Charge, INDEPENDANT of the DUI Charge, and has NO BEARING on the DUI charge.

#3 DUI arrests are made on the basis of the Arresting Officer's Observations on the scene, of the Driver's Impairment, operation of the Vehicle, and the Impairment being due to the Use of alcohol and/or Drugs

#4 "Driving Drowsy".... It is ONLY chargeable if it can be proven that the driver had not slept in the past 24 hours, and if there was a Fatality involved.... ANYONE who says that you will be given a ticket for "Being Tired" is FOS.

#5 There is caselaw in Nj that states Blood or Urine cannot be taken by force, although with the appropriate Court order, in an EXTREME Case (Multiple fatalities) this is subject to case-by case review.

#6 NJ at this time DOES NOT HAVE ANY INTENTION of making Blood Draws mandatory..in fact EVERY MEMBER of the NJSP Breath Test Unit, who oversees Training, record keeping, and court assistance thinks these "No Refusla" Programs are idiotic at best.

#7 Pentalties for Refusal Mirror those of the DUI Itself..... you MIGHT beat the Stop, or the test..if you REFUSE to give samples, you are screwing yourself.

[JackDaWack 2,895]

Some of the MISinformation here is scary...

 

#4 "Driving Drowsy".... It is ONLY chargeable if it can be proven that the driver had not slept in the past 24 hours, and if there was a Fatality involved.... ANYONE who says that you will be given a ticket for "Being Tired" is FOS.

 

As far as i know you can be given a ticket for careless driving or even reckless driving at the discretion of the officer, you don't necessarily have to be given a ticket for driving drowzy under maggie's law to get caught up in a legal battle.

I was once given a careless driving ticket for changing lanes too quickly at an intersection...It was a clean lane change well under the speed limit, yet he thought it was extremely dangerous. So if you were driving erratically and got pulled over told the officer you were tired, he could very well cite you for careless or reckless driving. Heck, half the dui's i read about in the police blotter are accompanied by careless or reckless driving, as if a dui didnt imply that already.

 

Also, i have had friends refuse sobriety tests, breath tests and blood test, a good lawyer will have any drunk/intoxicated charges dropped based on a no evidence factor rarely will a court ever rely solely on testimony as they don't want there officers being scrutinized. and at most you loose your license for the 3 months and pay some fines for the refusal. Much better then having a dui on you record. Of course im talking about your typical i'm fine to drive drinker, not your other typical plastered driver.

 

Do i agree with said above? no not really. We live in a system of check and balances, sometimes it works out for the cops, sometimes the drunk driver gets away.

[KpdPipes 388]

As far as i know you can be given a ticket for careless driving or even reckless driving at the discretion of the officer, you don't necessarily have to be given a ticket for driving drowzy under maggie's law to get caught up in a legal battle.

I was once given a careless driving ticket for changing lanes too quickly at an intersection...It was a clean lane change well under the speed limit, yet he thought it was extremely dangerous. So if you were driving erratically and got pulled over told the officer you were tired, he could very well cite you for careless or reckless driving. Heck, half the dui's i read about in the police blotter are accompanied by careless or reckless driving, as if a dui didnt imply that already.

 

Also, i have had friends refuse sobriety tests, breath tests and blood test, a good lawyer will have any drunk/intoxicated charges dropped based on a no evidence factor rarely will a court ever rely solely on testimony as they don't want there officers being scrutinized. and at most you loose your license for the 3 months and pay some fines for the refusal. Much better then having a dui on you record. Of course im talking about your typical i'm fine to drive drinker, not your other typical plastered driver.

 

Do i agree with said above? no not really. We live in a system of check and balances, sometimes it works out for the cops, sometimes the drunk driver gets away.

 

Well hell i guess i've been doing it wrong for the past 23 years..i'll have to let the Court know they need to overturn the DUI convictions i have based on observation when there was a problem with the machine, or a Refusal. Probably 90% of the time I go to trial with a Refusal I get convictions on BOTH the 4-50 and the 4-50.2 When I arrest you you dont see the box for the better part of an HOUR. My Arrest is ALWAYS based on observation, the Brethalyzer/Alcotest readings are just a check on my onservations NOT Probable Cause for the arrest. I've gone up against some of the BEST DUi attorneys in the state, with and without Former NJSP "Experts" and with and without readings, and i have a pretty damned high conviction rate.

[JackDaWack 2,895]

Well hell i guess i've been doing it wrong for the past 23 years..i'll have to let the Court know they need to overturn the DUI convictions i have based on observation when there was a problem with the machine, or a Refusal. Probably 90% of the time I go to trial with a Refusal I get convictions on BOTH the 4-50 and the 4-50.2 When I arrest you you dont see the box for the better part of an HOUR. My Arrest is ALWAYS based on observation, the Brethalyzer/Alcotest readings are just a check on my onservations NOT Probable Cause for the arrest. I've gone up against some of the BEST DUi attorneys in the state, with and without Former NJSP "Experts" and with and without readings, and i have a pretty damned high conviction rate.

 

I wasn't implying that you or Leo's are doing something wrong, i was just implying that if you(defendant) play your cards right you can get out of it. If 10% can get away with it, that tells me these people found the loop hole and played it very well. The point i was making at the very least, the less you provide for officers to make a case, the greater your chances become. And that is very much the same for you observations. If you believe you are say .09 would you take a breath test? your chances are off the bat increased by 10% based on your conviction rates. If you pass the sobriety test, and refuse the breath test, what observations could you argue?

 

Just to get a few things strait, i'm not really a drinker, and im not saying anyone can get out of a dui if they do x, y and z. However, i've seen plenty of people weezle there way out of dui's. Just recently my car was hit by a drunk driver, both him and his passenger were plastered. Had they shown me the slightest regard of responsibility i may have let them go, based on having them actually get a real ride home. This happened in a friends driveway, and they were freinds of freinds. However, they basically didnt know which way was up, and called it in. I like others feel that i may have saved two lives that night and possibly more. I felt no remorse it was not my decision. The driver didnt have a license which wasnt reveled until the cops got there, probably why they were being so dodgy toward me, which prometed the call in the first place. Not sure how it turned out for the guy, im guessing he wont be able to get out of this one.