DUI Question

[Denny347]

Where is this legal obligation to take FST's coming from? If they are presented to a subject as involuntary, they are not going to be admissible in court most likely.

Also, the only way that a PBT is admissible in court is solely for a showing of PC.

I cannot force SFST, not sure where that is coming from. That issue has never come up in court for me. They either performed them or they didn't. I cannot force someone to comply.

 

[Denny347]

You are right, it is not admissible but it does show PC to take a person for a test on a certified machine. Also if you refuse to take any test it is a refusal and you get locked up and license suspended.

If you refuse any CERTIFIED chemical test, yes, you get your DL suspended for 1 to 2 years. Being arrested has nothing to do with the refusal. I'm honest with the driver when I read them implied consent. I tell them that they are going to jail (at that point I have PC) and do they want to go to jail and get their DL suspended for 1-2 years or 30-90 days (typical length in Marion County for a misd).

 

[level0]

Did they take your wallet?

I saw what you did there.

Did they take pictures of your butt?

 

[nra4ever]

The worst part is if you refuse you also are not eligible for specialized driving privileges for the length of the refusal suspension. Something to think about if you need to drive for work

 

[level0]

As to what crime how bout the one that kills approx 11,000 Americans each year.

I hear ya, but how many did this guy kill?

 

[Fargo]

I cannot force SFST, not sure where that is coming from. That issue has never come up in court for me. They either performed them or they didn't. I cannot force someone to comply.

AA&Es first question was whether you could legally refuse the SFSTS. The first answer was "No." hence my confusion.

 

[sdtech58]

Distinct acronym count - 12 (unless I missed some...)

I feel like I'm back at BCT, AIT and PLDC wearing my BDU's and LBE...

But you forgot Snoop DOGG from the LBC, mobbin' with DRE, being some BAMF's ready to do some GTA's...

 

[wally05]

Where is this legal obligation to take FST's coming from? If they are presented to a subject as involuntary, they are not going to be admissible in court most likely.

Also, the only way that a PBT is admissible in court is solely for a showing of PC.

There is no obligation, but if you refuse SFSTS, it will get documented as part of my PC. I can't physically force you to do the three SFSTs. And no, PBT is not used for PC at all as it's not a certified test. It helps confirm suspicions of alcohol use or if the officer should just get blood. If you refuse to blow into the wonderful certified machine, the officer will more than likely get a warrant for your blood and the refusal is documented.

 

[VUPDblue]

I had one last night along these lines. Driving behavior was awful. Answers to my questions were nonsensical and slurred. Odor of alcoholic beverages, glassy bloodshot eyes, poor dexterity, unsteady balance. Declined SFSTs and PBT. Refused chemical test. I got a warrant for his blood and arrested him.

I stopped 17 cars last night based on their driving behavior and looking for impaired drivers, I found one impaired individual. The rest got warnings or tickets, all of which were well deserved.

 

[Fargo]

And no, PBT is not used for PC at all as it's not a certified test. It helps confirm suspicions of alcohol use or if the officer should just get blood.

The above is the exact opposite of what the law has been for decades. PBTs are expressly admissible to show PC.

State v. Johnson :: 1987 :: Indiana Court of Appeals Decisions :: Indiana Case Law :: Indiana Law :: U.S. Law :: Justia

 

[wally05]

The above is the exact opposite of what the law has been for decades. PBTs are expressly admissible to show PC.

State v. Johnson :: 1987 :: Indiana Court of Appeals Decisions :: Indiana Case Law :: Indiana Law :: U.S. Law :: Justia

Okay, let me fix my words. There is more case law in Indiana, including words given in a decision in 2008 that help clear this up. You can include PBT results in your PC as it helps develop PC for an arrest, but they are NOT admissible in court as evidence. They may be admissible in a suppression hearing, but not in a trial setting. It helps confirm that the driver had alcohol in his system. PBT results alone will not stand up come trial time. You better have observations and hopefully some other test results (blood or certified breath test).

For me, PBTs confirm what I'm seeing/smelling for DUIs. Or they help show me how bad off my public intox suspect is (if he needs medical assistance or clearance at the hospital before jail). I never just whip out a PBT and say "well, he's definitely drunk, the numbers say so".

 

[Fargo]

Okay, let me fix my words. There is more case law in Indiana, including words given in a decision in 2008 that help clear this up. You can include PBT results in your PC as it helps develop PC for an arrest, but they are NOT admissible in court as evidence. They may be admissible in a suppression hearing, but not in a trial setting. It helps confirm that the driver had alcohol in his system. PBT results alone will not stand up come trial time. You better have observations and hopefully some other test results (blood or certified breath test).

For me, PBTs confirm what I'm seeing/smelling for DUIs. Or they help show me how bad off my public intox suspect is (if he needs medical assistance or clearance at the hospital before jail). I never just whip out a PBT and say "well, he's definitely drunk, the numbers say so".

What is the 2008 case and what does it "clear up"? Johnson is still good law. PBTs are admissible to show PC on OWI. No one has said anything more.

 

[OkieGirl]

I had one last night along these lines. Driving behavior was awful. Answers to my questions were nonsensical and slurred. Odor of alcoholic beverages, glassy bloodshot eyes, poor dexterity, unsteady balance. Declined SFSTs and PBT. Refused chemical test. I got a warrant for his blood and arrested him.

I stopped 17 cars last night based on their driving behavior and looking for impaired drivers, I found one impaired individual. The rest got warnings or tickets, all of which were well deserved.

Dag-nabbit! The evil rep gods will not allow me to rep you! Very much appreciate the clearing of impaired drivers!! I've had to be the DD coming home from family events up that way and I'm astounded at how many drivers can't keep it between the lines or off the shoulder!! We drive a tank and it doesn't feel strong enough in that fish bowl!!!

 

[Roadie]

Fyi, kinda not possible.... or incredibly remote, as I have never seen such a thing.

Kut (points to nystagmus)

No. Her condition should have no effect of Horizontal Gaze Nystagmus test, the first SFST administered. There are only 3 SFST's: HGN, 9 step walk and turn, and 1 leg stand. If I have driving behavior, my observations during the stop, and nothing else, I COULD have PC for implied consent. If I can add HGN, even better. If they cannot perform the 9 step and the 1 leg due to medical reasons, that's ok. I can approximate your BAC with HGN only if that is all I have. I haven't done as many DUIs as VUPDblue but I've done a couple of hundred and used to work DUI Task Force. Do enough and my observations are very close to the actual BAC.

I disagree. As someone who also has a condition that has Nystagmus as a symptom, I have to ask.. how could it NOT affect the outcome?

 

[lrahm]

If you refuse any CERTIFIED chemical test, yes, you get your DL suspended for 1 to 2 years. Being arrested has nothing to do with the refusal. I'm honest with the driver when I read them implied consent. I tell them that they are going to jail (at that point I have PC) and do they want to go to jail and get their DL suspended for 1-2 years or 30-90 days (typical length in Marion County for a misd).

My mistake. I got a little ahead of myself. Typical length is about the same here in Vanderburgh County.

 

[lrahm]

I disagree. As someone who also has a condition that has Nystagmus as a symptom, I have to ask.. how could it NOT affect the outcome?

What type of condition could there be? Besides there are other tests involved. I have yet to see a person who could not perform any test. The Nystagmus measures smooth movement from side to side and the involuntary jerking movement at the maximum end that cannot be prevented by a person under the influence. From there if the person truely has any physical conditions that would prevent them from taking an SFST (and you suspect alcohol involvement), you offer them a certified test.

One of the first things that is asked by the officer "is there anything that would prevent you from physically taking this test". PC can still be developed from the other tests.

 

[Fargo]

What type of condition could there be? Besides there are other tests involved. I have yet to see a person who could not perform any test. The Nystagmus measures smooth movement from side to side and the involuntary jerking movement at the maximum end that cannot be prevented by a person under the influence. From there if the person truely has any physical conditions that would prevent them from taking an SFST (and you suspect alcohol involvement), you offer them a certified test.

One of the first things that is asked by the officer "is there anything that would prevent you from physically taking this test". PC can still be developed from the other tests.

Off the top of my head, there are at least a dozen other causes/types of nystagmus completely unrelated to alcohol. Most are neurological or inner ear related.

 

[WestSider]

The person is asked before EACH test if there are any physical impairments that would prevent them from doing the test, and that is why multiple tests are done. If the officer decides to read the implied consent card and offer a chemical test, you can refuse if you want to lose your license for a year (or possibly 2); and chances are you are still going to jail anyway.

 

[IndyDave1776]

The person is asked before EACH test if there are any physical impairments that would prevent them from doing the test, and that is why multiple tests are done. If the officer decides to read the implied consent card and offer a chemical test, you can refuse if you want to lose your license for a year (or possibly 2); and chances are you are still going to jail anyway.

I can see a potential problem here. It is entirely possible that the individual being so questioned could understand this to be a reference to a diagnosed medical condition. In my case, I have never been diagnosed with anything, but my sense of balance just isn't worth a damn.

 

[Denny347]

Off the top of my head, there are at least a dozen other causes/types of nystagmus completely unrelated to alcohol. Most are neurological or inner ear related.

You mean outside of depressants in general? Neurological defects are relatively rare when looking for drunk drivers. That is why ONE test isolated from anything else is practically useless in determining intoxication.