DUI refusal to submit breathalyzer

[Hohn]

How is a test for intoxication unethical? You agreed to the test when you got your license in the first place. Are you in the camp that believes driving drunk is OK unless you hurt someone or something?

To the contrary, REFUSING the test after you have already agreed to (by driving on Indiana roads) is what is unethical. It's a breach of contract.

 

[steveh_131]

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.

The risk to others is the same. Every time you drive while sleep deprived you are risking childrens' lives just as much as if you had been drinking.

 

[Kirk Freeman]

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.

If you truly understand the working of state government and the constitutional provisions of the police power of the states, then you have the answers to your own questions.

 

[Nmathew24]

The risk to others is the same. Every time you drive while sleep deprived you are risking childrens' lives just as much as if you had been drinking.

I don't agree with this statement; however I'm not saying there's not a risk, I'm just saying it's not the same. Just because I've been awake for 24 hours may or may not make me any more tired the someone who just woke up from a 16 hour nap. We can also use methods that have been proven to help stay awake as to being drunk doing things like drinking coffee or eating may make you feel better, it don't make you any less drunk.

 

[rambone]

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

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.

 

[steveh_131]

If you truly understand the working of state government and the constitutional provisions of the police power of the states, then you have the answers to your own questions.

No, I have the answers to the questions that you apparently think I am asking.

Maybe someone else feels like answering the questions that I am actually asking.

 

[steveh_131]

I don't agree with this statement; however I'm not saying there's not a risk, I'm just saying it's not the same. Just because I've been awake for 24 hours may or may not make me any more tired the someone who just woke up from a 16 hour nap. We can also use methods that have been proven to help stay awake as to being drunk doing things like drinking coffee or eating may make you feel better, it don't make you any less drunk.

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?

 

[Kirk Freeman]

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

No, but just because "I don't like the policy" does not mean is it unconstitutional which is the battle cry of the INGOtarian.

Forced blood draws

Forced? You don't get a wookie veto over a court order with your own lawlessness. You do get the chance to contest it in court.

suspicionless checkpoints are an abomination

Great, then urge your legislator to adopt the Freeman Plan and place permanent OWI roadblocks in the neighborhoods of the Justices of the Indiana Supreme Court.

Its legal rape as far as I'm concerned.

So, you equate constitutional due process with a violent crime? I think this tells us all we need to know.

 

[steveh_131]

Did any of that make sense in your head when you were writing it?

 

[Kirk Freeman]

Did any of that make sense in your head when you were writing it?

What do you wish me to explain to you?

 

[steveh_131]

What do you wish me to explain to you?

Why do you think there should be a constitutional amendment prohibiting the states from regulating their highways?

 

[Bunnykid68]

To the contrary, REFUSING the test after you have already agreed to (by driving on Indiana roads) is what is unethical. It's a breach of contract.

Breach of a forced contract.

 

[XtremeVel]

For a search warrant to obtain a blood sample, the officer has 3 hours from the time of refusal to get the actual blood taken.
I am not sure I understand your first question. If a suspect provided a breath sample on a certified instrument then there is no need for blood. Officers offer "a chemical test" of their choosing (blood or breath) but not both.

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 ?

 

[Tnichols00]

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


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.


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.


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.


.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.

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.

 

[VUPDblue]

I don't necessarily agree with the DUI checkpoints. I know it's been a back and forth battle in the courts over them and I don't think they much more than a showpiece in all reality. I have stated many times that I am not a fan of impaired drivers and taking them off the roads is one aspect of my job that I take pride in. That said, normally if I come into contact with an impaired driver it's because they are driving poorly and dangerously. Their driving behavior is endangering the public and they need to be held accountable. I have no problem with taking blood or breath, even if they don't consent, because my stop in the first place was anything but arbitrary.

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.

Driving in such a dangerous fashion that you draw the attention of the public and police, for whatever reason, is unacceptable. At that point you have committed a violation and if that violation has a root cause of chemical impairment then you deserve both legally and ethically IMHO, to answer for that. If you'r driving is egregiously bad because of some other reason, well then we have reckless driving and reckless endangerment statutes for that.

 

[Bang-bang]

VUPDblue's Rule #1: Don't be a jerk.

All I can say is " Hey ya''ll watch this!! I'm gonna tell you how it is"

 

[VUPDblue]

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 ?

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. The reason for doing the consensual blood test was because the person was stopped a block from Wishard and it was much quicker and easier to walk in there and do the test rather than transporting somewhere to do the Breath Test.

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.

 

[VUPDblue]

VUPDblue's Rule #1: Don't be a jerk.

All I can say is " Hey ya''ll watch this!! I'm gonna tell you how it is"

LOL Wut?

 

[Disposable Heart]

So, I'm confused, not argumentative, just confused:

We have the constitution, as well as an extra-constitutional "social contract" in terms of driving on roadways.

Social contract, in this case, says that in order to drive (not a requirement as a US citizen to drive unless you, and no one else, deems it so), you have to obtain a license and follow certain laws while driving, including not drinking and driving impaired.

We, in Indiana, sign into the societal contract that we will submit to impairment testing or lose our license b/c someone, or society proper, has deemed that they will not accept drunken driving upon a roadway that participants in the social contract have paid for by participation in driving (fuel tax and registration of vehicles).

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?

 

[Kirk Freeman]

Why do you think there should be a constitutional amendment prohibiting the states from regulating their highways?

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