DUI refusal to submit breathalyzer

[steveh_131]

I have been thinking about how to answer SteveH's question that equates improper gun storage to driving while intoxicated. The best I can come up with is that for the improper storage to be dangerous there has to be action. I live alone and keep a gun on my nightstand, loaded and ready to rock. Is that "improperly stored"? Some think so, but without action by me or someone else then it's not possible for something sinister to happen with it. Leaving a gun unsecured in a home full of people and/or children is not smart but is not "likely" to cause harm. I agree it's possible but it is not "probable". Driving impaired, and doing it poorly enough so as to attract the attention of the police, is "likely" to cause harm. Simple unsecured gun storage would be closer to suspicionless checkpoints in my opinion. Allowing a child to play with an unsecured and loaded gun would be closer to driving while impaired and doing so very poorly and dangerously.

I appreciate the thoughtful answer.

My biggest problem with this standard is the complete subjectivity. Do we really want to use terms such as 'likely' and 'probable' when we decide to start locking people in cages? This standard is what has brought us the nanny state that we have today.

What we are essentially doing is attempting to measure risk. An impossible task to be sure. Everyone has a different opinion. Am I putting others at risk if I choose not to get a flu shot? Am I putting others at risk if I drive home after working a 30 hour emergency shift?

Hitting closer to home: Am I putting others at risk if I don't keep a trigger lock on my firearm at all times?

The answer is, of course, yes. The measurement of that risk will vary from person to person.

This is why I take the same logic that I apply to gun control issues and apply it here. We can argue with the gun grabbers all day long about the statistics of gun control. I've heard pretty convincing cases that stricter gun control would make our nation safer. If we allow the measurement of risk to be our standard, then we allow the nanny state to continue expanding, including things that we care about. Like our guns.

If we focus on harsh and appropriate consequences for people who cause harm to people or property, then we can put a stop to the nanny state right here and now while still leaving the natural incentive to behave responsibly. If the risk of death isn't enough to stop someone then one more statute isn't likely to make a difference, is it?

 

[steveh_131]

I don't understand. Do you not understand the Tenth Amendment? Do you not understand state police power?

https://secure.in.gov/legislative/

 

[Kirk Freeman]

So, you do not understand the Tenth Amendment or state police power. I get it.

 

[steveh_131]

Some people who wish to drive have to follow the social contract are complaining b/c they are unwilling to submit to the basic, fairly non-physically-invasive testing (breathalyzer) and feel they don't have to, even after signing a contract with the body politic and body social that wrote and agreed upon it, b/c they feel it's an unreasonable search/intrusion upon something that is not a dictated right in the constitution, but a social contract?

A contract signed under duress is not a legitimate contract.

Let's not pretend that this process is strictly voluntary.

 

[steveh_131]

So, you do not understand the Tenth Amendment or state police power. I get it.

Life isn't an L. Neil Smith novel, Kirk. You do not have the right to a beautiful tenth amendment.

 

[VUPDblue]

Refusal is "Basically" Not an actual. Context helps here bud, I dont mind you correcting me but please dont take what I say out of context.

I did not say that the on the road breath test was an admission of guilt, I simply said you can take it there on the side of the road. I am sorry I offended you by not using the term PBT (Portable Breath Test), but it seems it worked fine and you understood my meaning
The law states first and foremost that the officer must have probable cauuse
Context is important sometimes and sometimes specific verbiage is important. In the case of OVWI law and procedures, the letter of the law trumps context. It's black and white what can or cannot be done and how or how not to do it.

probable cause; evidence of intoxication; refusal to submit to test; admissibility
(b) At any proceeding under this chapter, IC 9-30-5, or IC 9-30-9, a person's refusal to submit to a chemical test is admissible into evidence.

If you read below you will see that you only need to take the test if you wish to "Comply with the implied consent". While it does say that you must submit to each test in order to comply I have had a friend and a brother who both requested the blood test. Both times the officers were happy to administer the blood test instead of the "PBT". I mean seriously why would an officer not take advantage of a more accurate test?
There are a couple things I want to point out that are wrong with this. Please don't take this as nitpicking because it is very legally important. Implied consent does not state that you must submit to EACH test. It states that you must submit to A CHEMICAL TEST. Blood or breath are types of chemical tests and you must submit to whichever one the officer chooses, not both, and you cann't choose which one you want. There are many reasons why officers would choose blood over breath or vice-versa but at the end of the day, it doesn't really matter.
What you call the "PBT" is an instrument that I carry in my car that is used, as Denny said, to verify the presence and APPROXIMATE level of ETOH. This test is NOT admissible as evidence and is NOT required. You can refuse a PBT without consequence and without the refusal being admissible as evidence. The PBT is only part of Field Sobriety investigation, nothing more.


ec. 2. (a) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter, IC 9-30-5, or IC 9-30-9, or a violation under IC 9-30-15 shall offer the person the opportunity to submit to a chemical test.
(b) A law enforcement officer:
(1) is not required to offer a chemical test to an unconscious person; and
(2) may offer a person more than one (1) chemical test under this chapter.
(c) A test administered under this chapter must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5 or a violation under IC 9-30-15.
(d) A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.


Again I said he thinks I did not do the actual math but Im glad you would prefer to spend your time nitpicking. He had an hour and a half from the time he was pulled over to the blood test, plus an hour since or so since his last drink. You do the math.

I have been breathalyzed by 3 different officers, and not a single one of them checked inside my mouth, not a single one waited 20 minutes after pulling me over to give me the breathalyzer. I was sober so I didnt care but looks like that basic 101 doesnt always work there bud
If the test you took was roadside on a PBT then there is no requirement to wait any amount of time for that test. Again, the PBT is not admissible and is only an investigatory tool. There is no legal procedure on how to administer the PBT. The 20 minute wait/observation period only applies to the BAC Datamaster Certified Breath Test Instrument. This will also change this year when Indiana replaces the Datamaster with a new instrument, which has it's own set of procedures in place.

So lets review here... You do not have to submit to a test, you only have to submit if you wish to comply, a PBT can also be referred to a road breath test just as marijuana can be called weed, a nice request to a officer can dictate how you would like your test administered (Notice I said "Can") and last but not least, not every officer will follow 101 protocol, sometimes they are lazy, sometimes they dont care, They are human, they do make mistakes.

I did notice you said "can" but I will say that any request for a particular test, especially if that request is for the opposite test that the officer offered you, is not "likely" to be granted. Every officer that does a DUI investigation MUST follow "101 protocol" or the case will be lost at the hands of even the most green defense attorney. The procedures for OVWI investigations is codified for a reason. I'm not saying there aren't "lazy" officers out there, but there is a right way and a wrong way to conduct a DUI investigation and for as time consuming as they are, half-assing one is just plain stupid.

 

[Kirk Freeman]

Life isn't an L. Neil Smith novel, Kirk.

You wouldn't know it by reading INGO. Fantasy crap/Delusions of Wookiedom day in and day out.

You do not have the right to a beautiful tenth amendment

I sure do. I even swore an oath to protect it.

 

[HeadlessRoland]

Not everything that is "constitutional" is compatible with a free society, or voluntarism, or free markets, inter alia.

States can build up completely collectivist police states in their constitutions. Courts can call all sorts of awful things "constitutional."

That doesn't make it right.

Alcohol prohibition was once in the Federal constitution. The Federal Income tax is in the constitution. Lots of people oppose public schools, yet they are written into the Indiana constitution.

Being "constitutional" doesn't make something good, or worth supporting, or part of a free country.

Forced blood draws and suspicionless checkpoints are an abomination. I really don't care who signs a piece of paper saying its OK. Its legal rape as far as I'm concerned.

I believe the term you seek is legalized plunder.
The Law, by Frederic Bastiat

 

[XtremeVel]

Since I have been a Certified Breath Test Operator, I have only had probably 10% of suspects refuse a chemical test and only once have I opted for blood over breath.

That clears it up.... I didn't realize the vast majority of times you choose breath anyway...

You also can't say "I'll take the breath test but I refuse a blood test". It's not your choice. Refusal is refusal. Saying "I consented to one but not the other" doesn't fly. You either consent or you don't. Period.

I understand that and I wouldn't refuse either... Saying that though, still doesn't mean I wouldn't state my preference and my phobia to needles...

 

[BE Mike]

A LEO buddy came over today to detail strip his custom 1911 for cleaning. While we were working on the 1911 he was telling me about some of the specialized training he has recently undergone regarding dealing with those driving under the influence of certain drugs. He was also explaining some of the procedures and test protocol for evidence in such cases. All I can say is my hat is off to those of you who are tasked with enforcing these laws. I sure don't have the patience for dealing with all of that. Being a good LEO is a calling, not a job. You sure aren't in it for the money or accolades.

 

[Tnichols00]

I did notice you said "can" but I will say that any request for a particular test, especially if that request is for the opposite test that the officer offered you, is not "likely" to be granted. Every officer that does a DUI investigation MUST follow "101 protocol" or the case will be lost at the hands of even the most green defense attorney. The procedures for OVWI investigations is codified for a reason. I'm not saying there aren't "lazy" officers out there, but there is a right way and a wrong way to conduct a DUI investigation and for as time consuming as they are, half-assing one is just plain stupid.

All of my breathalyzers were with the PBT and I passed with flying colors that is prolly why I did not have to go get the stationary test and have my mouth checked and wait 20 min.

 

[Disposable Heart]

A contract signed under duress is not a legitimate contract.

Let's not pretend that this process is strictly voluntary.

I unfortunately don't see it as duress:
We aren't allowed or required under the constitution to drive on roadways.
We aren't required to sign said contract, duress or not, for a state ID.
We aren't required to drive, we can walk or find alternative means of transportation.

How is it duress? What social sanctions await one for not getting a driver's license? They can't drive? Okay. They drive without a license on roadways that we that HAVE submitted to the contract have paid for. They are getting a service they are not entitled to b/c they aren't following social contract and we have punitive measures for such. Again, not wishing to be argumentative, but if you wish to sway the general public, you might have to answer questions that dummies like me might be able to understand.

 

[chezuki]

Threads like this remind me that there truly are some whack jobs among us.

 

[Nmathew24]

A person who drank 2 beers may be more drunk than someone who drank 4. Someone with a blood alcohol level of .12 may be more functional than someone with a blood alcohol level of .07. It's all arbitrary.

Why not make some more arbitrary laws about how much sleep you have to get before you can drive?

At any point in time even a functioning alcoholic can lose their mental and physical mindset. Yes someone who intakes 2 beers can be more drunk then someone who drinks 4. Being awake and not having enough sleep are different thing. Right now I'm about to start a 16 hour shift after coming off a 12 hour shift with 4 hours of sleep in between. Does that mean I am to tired to provide patient care in the hospital, or in this case drive?

 

[VUPDblue]

All of my breathalyzers were with the PBT and I passed with flying colors that is prolly why I did not have to go get the stationary test and have my mouth checked and wait 20 min.

Exactly. The officers used the PBT as the investigatory tool they are menat to be and determined that there was no need to further the investigation. This is exactly why there are PBTs in the field. I have never performed a certified chemical test on someone to find that they were below the legal limit and this is owed, at least a little bit, to the fact that I have, and use, a PBT.

 

[Bunnykid68]

I unfortunately don't see it as duress:
We aren't allowed or required under the constitution to drive on roadways.
We aren't required to sign said contract, duress or not, for a state ID.
We aren't required to drive, we can walk or find alternative means of transportation.

How is it duress? What social sanctions await one for not getting a driver's license? They can't drive? Okay. They drive without a license on roadways that we that HAVE submitted to the contract have paid for. They are getting a service they are not entitled to b/c they aren't following social contract and we have punitive measures for such. Again, not wishing to be argumentative, but if you wish to sway the general public, you might have to answer questions that dummies like me might be able to understand.

Now we must accept that we do not have the right to travel unless we walk or ride a horse? How exactly would that work? I got me a horse and I am ready to travel, can I ride my horse on the streets, highways and interstates or across peoples property because now I need to take a more direct route?

Why would one need a license to collect those taxes that pay for those roads. They buy the car, pay taxes on said car, pay the yearly wheel tax and pay road taxes every time they fill up that car

Tell me when driving a car became a privilege and ceased being a right.

 

[VUPDblue]

Do we really want to use terms such as 'likely' and 'probable' when we decide to start locking people in cages? This standard is what has brought us the nanny state that we have today

But that is EXACTLY what our rules of law are based on; probable cause, reasonable suspicion, etc....

 

[Denny347]

That's what I don't understand... Maybe a higher percentage of drunks are much more uncooperative than I realize...

I just can't fathom if a suspect is fully cooperative and states they would submit to any and all breath tests, why you still might choose to draw blood over the breath when you know he/she is going to refuse the blood... If their refusal causes you more paperwork and more importantly, TIME, couldn't that greatly increase the chance of their BAC dropping below the legal limit ?

Normally we wouldn't. Breath test is the "go to" test and a blood draw is actually quite rare.

 

[steveh_131]

How is it duress?

Publicly funded roads have eliminated any possibility of Practical alternative transportation systems. The government has a monopoly on travel. The threat of Losing this ability to travel is duress.

Threads like this remind me that there truly are some whack jobs among us.

Words hurt, you know.

Is it really that crazy to question the status quo that has resulted in this ridiculous mammoth government?

At any point in time even a functioning alcoholic can lose their mental and physical mindset. Yes someone who intakes 2 beers can be more drunk then someone who drinks 4. Being awake and not having enough sleep are different thing. Right now I'm about to start a 16 hour shift after coming off a 12 hour shift with 4 hours of sleep in between. Does that mean I am to tired to provide patient care in the hospital, or in this case drive?

It does mean that if an arbitrary, zero tolerance law says it means that.

But that is EXACTLY what our rules of law are based on; probable cause, reasonable suspicion, etc....

No, law enforcement relies on it. Our legislation shouldn't. If you act irresponsibly and harm someone you pay the price. That is a more objective system than attempting to measure risk.

 

[Denny347]

Refusal is "Basically" Not an actual. Context helps here bud, I dont mind you correcting me but please dont take what I say out of context.

I did not say that the on the road breath test was an admission of guilt, I simply said you can take it there on the side of the road. I am sorry I offended you by not using the term PBT (Portable Breath Test), but it seems it worked fine and you understood my meaning
The law states first and foremost that the officer must have probable cause

probable cause; evidence of intoxication; refusal to submit to test; admissibility
(b) At any proceeding under this chapter, IC 9-30-5, or IC 9-30-9, a person's refusal to submit to a chemical test is admissible into evidence.

If you read below you will see that you only need to take the test if you wish to "Comply with the implied consent". While it does say that you must submit to each test in order to comply I have had a friend and a brother who both requested the blood test. Both times the officers were happy to administer the blood test instead of the "PBT". I mean seriously why would an officer not take advantage of a more accurate test?

ec. 2. (a) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter, IC 9-30-5, or IC 9-30-9, or a violation under IC 9-30-15 shall offer the person the opportunity to submit to a chemical test.
(b) A law enforcement officer:
(1) is not required to offer a chemical test to an unconscious person; and
(2) may offer a person more than one (1) chemical test under this chapter.
(c) A test administered under this chapter must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5 or a violation under IC 9-30-15.
(d) A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.


Again I said he thinks I did not do the actual math but Im glad you would prefer to spend your time nitpicking. He had an hour and a half from the time he was pulled over to the blood test, plus an hour since or so since his last drink. You do the math.

I have been breathalyzed by 3 different officers, and not a single one of them checked inside my mouth, not a single one waited 20 minutes after pulling me over to give me the breathalyzer. I was sober so I didnt care but looks like that basic 101 doesnt always work there bud.

So lets review here... You do not have to submit to a test, you only have to submit if you wish to comply, a PBT can also be referred to a road breath test just as marijuana can be called weed, a nice request to a officer can dictate how you would like your test administered (Notice I said "Can") and last but not least, not every officer will follow 101 protocol, sometimes they are lazy, sometimes they dont care, They are human, they do make mistakes.

A PBT is NOT a chemical test under Indiana State law. It is NOT a legally binding test. PBT results CANNOT be used in court. They are ONLY used to test the presence of ETOH. You refer to "breathalyzed" when someone offered you a PBT but that term is for a certified chemical test, of which a PBT is not. There is no 20 minute wait for a PBT since they are not "certified breath tests" and as I said earlier, not admissible in court. The ONLY certified breath test allowed in court are ones administered at a test site (usually a rollcall site) utilizing a BAC Datamaster instrument. I have yet to see an officer CHOOSE a blood draw over breath since they take more time, unless there are issues with blowing into the Datamaster. I "nitpick" because I spent years working DUI taskforce and know a few things about this subject.