DUI refusal to submit breathalyzer

[IMPD31323]

So am I to assume you are advocating a constitutional amendment allowing you to drive your 2 ton chinch of metal 60 miles per hour? If that's the case maybe you need to read up on current law. In Indiana the term intoxicated is defined as under the influence of a substance that alters your normal state of mind. Also in Indiana you are allowed to drive under the influence of an alcohol just so long as you are not over .08 BAC. So in Indiana there is a law that specifically states you are allowed to drive intoxicated, just not over .08. So it would seem they didn't forget it......

 

[steveh_131]

So am I to assume you are advocating a constitutional amendment allowing you to drive your 2 ton chinch of metal 60 miles per hour?

No. I don't believe the constitution exists to list the things we are 'allowed' to do. It exists to limit the government to a specific list of things that it is allowed to do.

If that's the case maybe you need to read up on current law. In Indiana the term intoxicated is defined as under the influence of a substance that alters your normal state of mind. Also in Indiana you are allowed to drive under the influence of an alcohol just so long as you are not over .08 BAC. So in Indiana there is a law that specifically states you are allowed to drive intoxicated, just not over .08. So it would seem they didn't forget it......

While I don't disagree with your assessment of Indiana law, I also don't see any relevance to the topic at hand.

 

[Kirk Freeman]

Based on this answer, can I assume that if the founders had left out the 2nd amendment then you would would advocate a gun ban?

I cannot wrap my head around the notion that driving while intoxicated is a fundamental constitutional right.

A federal drunk driving statute, outside of federal property, is certainly unconstitutional, but drunk driving statutes fall squarely within the police power of the states.

The states have broad power to regulate the behavior of their citizens under the Constitution for the purposes of health, safety, morals and general welfare.

How is drunk driving not squarely within the police power of the states? What fundamental constitutional right are you claiming?

No. I don't believe the constitution exists to list the things we are 'allowed' to do. It exists to limit the government to a specific list of things that it is allowed to do.

Yes, the federal government is limited but the state governments are not. There may be many issues with a particular statute (illegal burden shifting, 5th amendment concerns, unreasonable punishment, inter alia) but regulating drunken driving is not unconstitutional.

How is the state of Indiana prohibited from exercising its police powers over its highways?

 

[Kirk Freeman]

Where are the great Utopias created? . . . . Serious question

I got this:

 

[steveh_131]

I cannot wrap my head around the notion that driving while intoxicated is a fundamental constitutional right.

I never said that it was. I asked you a question that you have (predictably) dodged.

My initial question: "explain to me why endangering lives by storing your gun irresponsibly should be perfectly legal but endangering lives by driving irresponsibly should land you in prison"

Your response: "Because there is a fundamental constitutional right to access your firearms. Heller."

My followup question: "Based on this answer, can I assume that if the founders had left out the 2nd amendment then you would would advocate a gun ban?"

If your only problem with gun bans is that they are contrary to the 2nd amendment, then what if there was no 2nd amendment? Would you then be ok with gun bans?

Yes, the federal government is limited but the state governments are not. There may be many issues with a particular statute (illegal burden shifting, 5th amendment concerns, unreasonable punishment, inter alia) but regulating drunken driving is not unconstitutional.

How is the state of Indiana prohibited from exercising its police powers over its highways?

I never said the state of Indiana was prohibited from exercising its police powers over its highways. I never said anything was 'unconstitutional'. Not really sure why you're bringing it up. I did point out that I am not advocating a constitutional amendment explicitly protecting drunk driving.

 

[IMPD31323]

While I don't disagree with your assessment of Indiana law, I also don't see any relevance to the topic at hand.[/QUOTE]

Nor do I see the relevance of your argument that drunk driving laws are akin to 2a laws. I'm sorry but you General Lee'ed the topic across the proverbial river of logic and we mere mortals are unable to keep up. Sorry for putting holes in your ludicrous argument.

 

[Kirk Freeman]

If your only problem with gun bans is that they are contrary to the 2nd amendment, then what if there was no 2nd amendment? Would you then be ok with gun bans?

Again, Heller. The right to arms exists outside of the Second Amendment.

What federal constitutional right are you claiming gives one the right to drive intoxicated. In the alternate, what federal constitutional provision are you claiming that prohibits the states from exercising their police power to regulated intoxicated driving?

I never said the state of Indiana was prohibited from exercising its police powers over its highways. I never said anything was 'unconstitutional'. Not really sure why you're bringing it up. I did point out that I am not advocating a constitutional amendment explicitly protecting drunk driving.

How is the State of Indiana prohibited from regulating drunken driving?

 

[steveh_131]

Nor do I see the relevance of your argument that drunk driving laws are akin to 2a laws. I'm sorry but you General Lee'ed the topic across the proverbial river of logic and we mere mortals are unable to keep up. Sorry for putting holes in your ludicrous argument.

Fair enough, let me back up and try again.

The logic advocating gun control is as follows:

1. Possession of a firearm can be an inherent risk to yourself and those around you.
2. It is a legitimate purpose of government to criminalize behaviors that can create risk for others.
3. The government should therefore imprison people who possess firearms.

Drunk driving laws follow the same logic.

1. Driving while intoxicated can be an inherent risk to yourself and those around you.
2. It is a legitimate purpose of government to criminalize behaviors that can create risk for others.
3. The government should therefore imprison people who drive while intoxicated.

I agree with #1 in both instances. Many people are irresponsible and/or malicious with firearms, and people are harmed as a result. Many people are irresponsible and drive when they shouldn't.

I disagree with #2 in both instances. I don't think that the government should criminalize risky behaviors, nor do I believe it is effective in doing so. Therefore I must also disagree with #3.

Do you take issue with points 1, 2, or 3?

Again, Heller. The right to arms exists outside of the Second Amendment.

What? Didn't Heller just confirm the wording of the 2nd amendment?

Again, Kirk, if the 2nd amendment had never been introduced to the constitution, would you be in favor of a gun ban?

What federal constitutional right are you claiming gives one the right to drive intoxicated. In the alternate, what federal constitutional provision are you claiming that prohibits the states from exercising their police power to regulated intoxicated driving?

How is the State of Indiana prohibited from regulating drunken driving?

You keep asking me this. Why? I never said there is a federal constitutional right to drive intoxicated. I never said any federal constitutional provision prohibits the states from regulating drunken driving.

 

[Kirk Freeman]

Again, Kirk, if the 2nd amendment had never been introduced to the constitution, would you be in favor of a gun ban?

No but that has nothing to do with your argument.

[You keep asking me this. Why? I never said there is a federal constitutional right to drive intoxicated. I never said any federal constitutional provision prohibits the states from regulating drunken driving./QUOTE]

If you admit that the states can regulate driving while intoxicated, then what is your problem with drunk driving statutes?

 

[steveh_131]

No but that has nothing to do with your argument.

Yes it does. What other reason would you have to oppose a gun ban? See my points 1,2 and 3. Which do you disagree with in the absence of the 2nd amendment?

If you admit that the states can regulate driving while intoxicated, then what is your problem with drunk driving statutes?

This is a logical fallacy.

I don't think that the federal government should interfere with a state's regulation of DUI.

That doesn't mean that I think the states should regulate DUI. I can oppose a statute on the grounds of liberty and practicality without opposing it based on the federal constitution.

 

[Kirk Freeman]

That doesn't mean that I think the states should regulate DUI. I can oppose a statute on the grounds of liberty and practicality without opposing it based on the federal constitution.

Liberty? The states should not regulated intoxicated driving because one should be free to endanger others?

You have lost me here.

 

[steveh_131]

Liberty? The states should not regulated intoxicated driving because one should be free to endanger others?

Every day we make decisions that pose a risk to others.

• Talking on your cell phone while driving
• Texting while driving
• Talking to your passenger while driving
• Driving while taking benadryl
• Driving while tired
• Changing the radio station while driving
• Driving a large, heavy vehicle

How do we decide which of these risky behaviors should be criminalized?

Let's look at one example. It has been scientifically demonstrated that driving while tired is substantially more dangerous than driving while drunk. Let's say a scientist invented a device that police could used to measure your sleep deprivation. Would you support the same criminal measures against tired drivers?

 

[Tnichols00]

My brother got a DUI a few year back, he had a spirt of irresponsible partying there for a little while. During the process of helping him a learned a little bit.

In Indiana you are allowed to refuse a alcohol test, this is basically an admission of guilt from my understanding.

You can take the on the road breathalyzer

Or for a couple hundred bucks you can have your blood drawn by a physician of your choice who will do it at that hour. The blood test is the most accurate and this can buy you as little as a half hour or up to two hours. That time can hurt or help your case as your body can still by digesting the alcohol.

Basically if you have just had a beer you best bet is to tell the officer that you just had one in the last couple minutes and you would like to wait for the alcohol to clear your mouth. If you take a single sip of beer and immidiatly blow into a breathalyze you will blow well above .2 just because of the alcohol in your mouth. If you wait 20 min it will clear your mouth and only be the alcohol coming from your lungs.

If you have been drinking and stopped an hour ago or so the best bet is to ask for the blood test, that will give a little time to sober up and get the most accurate reading. ( This is what my brother did, he blew a .12 and had been drinking hard but stopped an hour or so before he drove, he thinks he woulda blown close to a .2 if he had not asked for the blood test and waited the extra time.)

If you have been drinking hard and just finished you might as well just give up.

This is not legal advice just my opinion and understand of the law and how alcohol works.

Again the best way to handle it is to NOT DRINK AND DRIVE!!

 

[Nmathew24]

Every day we make decisions that pose a risk to others.

• Talking on your cell phone while driving
• Texting while driving
• Talking to your passenger while driving
• Driving while taking benadryl
• Driving while tired
• Changing the radio station while driving
• Driving a large, heavy vehicle

How do we decide which of these risky behaviors should be criminalized?

Let's look at one example. It has been scientifically demonstrated that driving while tired is substantially more dangerous than driving while drunk. Let's say a scientist invented a device that police could used to measure your sleep deprivation. Would you support the same criminal measures against tired drivers?

I believe you can be cited for all you listed above, besides one. We have drunk driving laws to help keep the public safe. Just like any "crime" no matter how many laws you put on the books someone will break them, example texting and driving it's been on the rise for years now it's taken far to many lives, so now states and starting to tighten up laws regarding mobile devices.

 

[Kutnupe14]

My brother got a DUI a few year back, he had a spirt of irresponsible partying there for a little while. During the process of helping him a learned a little bit.

In Indiana you are allowed to refuse a alcohol test, this is basically an admission of guilt from my understanding.

You can take the on the road breathalyzer

Or for a couple hundred bucks you can have your blood drawn by a physician of your choice who will do it at that hour. The blood test is the most accurate and this can buy you as little as a half hour or up to two hours. That time can hurt or help your case as your body can still by digesting the alcohol.

Basically if you have just had a beer you best bet is to tell the officer that you just had one in the last couple minutes and you would like to wait for the alcohol to clear your mouth. If you take a single sip of beer and immidiatly blow into a breathalyze you will blow well above .2 just because of the alcohol in your mouth. If you wait 20 min it will clear your mouth and only be the alcohol coming from your lungs.

If you have been drinking and stopped an hour ago or so the best bet is to ask for the blood test, that will give a little time to sober up and get the most accurate reading. ( This is what my brother did, he blew a .12 and had been drinking hard but stopped an hour or so before he drove, he thinks he woulda blown close to a .2 if he had not asked for the blood test and waited the extra time.)

If you have been drinking hard and just finished you might as well just give up.

This is not legal advice just my opinion and understand of the law and how alcohol works.

Again the best way to handle it is to NOT DRINK AND DRIVE!!

You're right, and this is taken into account during testing.

 

[steveh_131]

I believe you can be cited for all you listed above, besides one. We have drunk driving laws to help keep the public safe. Just like any "crime" no matter how many laws you put on the books someone will break them, example texting and driving it's been on the rise for years now it's taken far to many lives, so now states and starting to tighten up laws regarding mobile devices.

So if a man works a double shift and drives home exhausted, he may represent substantially more risk to others than a man who is drunk.

We throw him in jail, right?

 

[Kirk Freeman]

How do we decide which of these risky behaviors should be criminalized?

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

 

[steveh_131]

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

I was asking more of a philosophical question, Kirk.

Believe it or not, I am aware of the workings of the legislative process. Especially since you answer every question that I ever ask with an explanation of it.

 

[Denny347]

In Indiana you are allowed to refuse a alcohol test, this is basically an admission of guilt from my understanding.

Not correct, a refusal has nothing to do with guilt/innocence.

You can take the on the road breathalyzer

Road breathalyzer? You are referring to the PBT (portable breath test). A PBT is used only to confirm that we are dealing with ETOH and not a drug. Its reading is not admissible in Indiana courts.

Or for a couple hundred bucks you can have your blood drawn by a physician of your choice who will do it at that hour. The blood test is the most accurate and this can buy you as little as a half hour or up to two hours. That time can hurt or help your case as your body can still by digesting the alcohol.

What are you talking about? Are you talking about the certified test during a DUI investigation? BS, the driver does not get to pick the test method, the location, nor the nurse administering.

Basically if you have just had a beer you best bet is to tell the officer that you just had one in the last couple minutes and you would like to wait for the alcohol to clear your mouth. If you take a single sip of beer and immidiatly blow into a breathalyze you will blow well above .2 just because of the alcohol in your mouth. If you wait 20 min it will clear your mouth and only be the alcohol coming from your lungs

Indiana law dictates the correct method to administering a certified breath test. The fist step is to check the mouth for foreign objects and wait 20 minutes before administering the breath test. This is breath test 101 for any certified test operator and one of the first things an attorney looks at in court.

If you have been drinking and stopped an hour ago or so the best bet is to ask for the blood test, that will give a little time to sober up and get the most accurate reading. ( This is what my brother did, he blew a .12 and had been drinking hard but stopped an hour or so before he drove, he thinks he woulda blown close to a .2 if he had not asked for the blood test and waited the extra time.)

.2? Not possible. If he stopped a hour before he was investigated for DUI and was tested before the legally required 3 hour limit, he would have been well below .2 when he stopped. He was likely more around .16-.17 when stopped. Alcohol is metabolized at the rate of .015 of blood alcohol concentration (BAC) every hour.

If you have been drinking hard and just finished you might as well just give up.

This is not legal advice just my opinion and understand of the law and how alcohol works.

Again the best way to handle it is to NOT DRINK AND DRIVE!!

 

[Nmathew24]

So if a man works a double shift and drives home exhausted, he may represent substantially more risk to others than a man who is drunk.

We throw him in jail, right?

No we offer them help to get. Let that be by cab, bus or family I work many many 16 hours shifts and I can say lack of sleep can alter your decision making process as if you were under the influence. Comparing someone who works like a dog to provide for his family then get behind the wheel and someone who chooses to be irresponsible and drink toxic substance to the body then get behind the wheel... its the whole banana and grapefruit comparison. It's just not the same.