Also, for those suggesting to not blow, it doesn’t mean the cops won’t have evidence. Upon refusal you will most likely be taken for a blood draw, which is actually more accurate and may result in a higher BAC.
[quote]Testy1 wrote:
Also, for those suggesting to not blow, it doesn’t mean the cops won’t have evidence. Upon refusal you will most likely be taken for a blood draw, which is actually more accurate and may result in a higher BAC.[/quote]
The irony…
Jewbacca,
You can always ASK to have an attorney present, but you do not always have the RIGHT to have an attorney present.
The only time you have a LEGAL RIGHT to counsel is when you are under arrest.
There is no legal right to have an attorney present for a breathalyzer test. You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.
Many states now have gone to writing a search warrant for your blood if you refuse the breathalyzer, but that will be based on how much probable cause was developed during the stop.
[quote]mapwhap wrote:
Jewbacca,
You can always ASK to have an attorney present, but you do not always have the RIGHT to have an attorney present.
The only time you have a LEGAL RIGHT to counsel is when you are under arrest.
There is no legal right to have an attorney present for a breathalyzer test. You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.
Many states now have gone to writing a search warrant for your blood if you refuse the breathalyzer, but that will be based on how much probable cause was developed during the stop. [/quote]
According the USSC, you are under arrest any time you are not free to leave, but that is beside the point here,
“You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.”
No, it’s not. You may not have the right to counsel at the breath test, but your assertion of that right (even if you don’t have the right) is not a refusal.
It’s a subtle distinction, and the goal is not to get a lawyer. The goal is delay and fucking up the works until your BAL is below .08.
Same with getting a blood test. In most states, they need a warrant. Assert that you are on blood thinners, which means they have to get a nurse to do the test, in case you bleed out. Getting a warrant and/or a nurse buys you an hour or two.
[quote]krazykoukides wrote:
[quote]Testy1 wrote:
Also, for those suggesting to not blow, it doesn’t mean the cops won’t have evidence. Upon refusal you will most likely be taken for a blood draw, which is actually more accurate and may result in a higher BAC.[/quote]
The irony…[/quote]
depending on the state.
See jewbacca post above also. Hes a lawyer.
Point is, don’t trust cops. Educate yourself if its a concern.
Just because you broke the law doesnt mean you shouldnt pursue every legal avenue to seek the best legal outcome.
[quote]Jewbacca wrote:
[quote]TheBodyGuard wrote:
Where did you get this from? You have a right to a lawyer (miranda rights) if you’re being charged with a crime. Being asked to submit to a breathalyzer is not tantamount to being charged with a crime. As a condition in exchange for the privilege of driving, you are usually required by your State to submit to a breathalyzer upon reasonable cause and your failure to do so is usually followed by a mandatory suspension. Refusing to take a test until your lawyer was present would be a refusal. [/quote]
From several CLEs I’ve been to on the topic. Your state law may vary.
I don’t disagree with any thing you are saying; it’s a very fine line, but the way this has worked to avoid a suspension for refusing the test is: (1) you always have the right to counsel before you talk to police (no matter what they say) and (2) by not “refusing” you
technically don’t meet the statute, or can at least have a colorable argument such that the prosecutor lessons the suspension length.[/quote]
I think you’re confusing the law. Your “right” to drive is a privilege, not a right per se, and is conditioned upon your obeying and complying with the motor vehicle code. Although you arguably have a right to speak with your lawyer prior to submitting to questioning from law enforcement, your providing your license, registration, insurance etc is no different than submitting to a breathalyzer upon reasonable cause. Not submitting, is refusing. I don’t think your argument would go anywhere or lead to any reductions. And remember, it is not the prosecutor that sets the suspension - it’s the motor vehicle authority in your state. A prosecutor can plead you down, and recommend suspensions within the judges authority, but where it colored as a “mandatory” and a minimum is set, you’re fucked. I think your advice is unfounded.
[quote]Jewbacca wrote:
[quote]mapwhap wrote:
Jewbacca,
You can always ASK to have an attorney present, but you do not always have the RIGHT to have an attorney present.
The only time you have a LEGAL RIGHT to counsel is when you are under arrest.
There is no legal right to have an attorney present for a breathalyzer test. You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.
Many states now have gone to writing a search warrant for your blood if you refuse the breathalyzer, but that will be based on how much probable cause was developed during the stop. [/quote]
According the USSC, you are under arrest any time you are not free to leave, but that is beside the point here,
“You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.”
No, it’s not. You may not have the right to counsel at the breath test, but your assertion of that right (even if you don’t have the right) is not a refusal.
It’s a subtle distinction, and the goal is not to get a lawyer. The goal is delay and fucking up the works until your BAL is below .08.
Same with getting a blood test. In most states, they need a warrant. Assert that you are on blood thinners, which means they have to get a nurse to do the test, in case you bleed out. Getting a warrant and/or a nurse buys you an hour or two.
[/quote]
how is your assertion of the right not a refusal? you either blow or don’t. remember, ignorance of the law is not a defense. you can’t very well plead “i thought i had a right to counsel”. the court, the judge, the prosecutor will all realize the transparent attempt to circumvent justice. you MAY beat the dui rap if you can delay, but you will NOT beat a mandatory suspension. your argument is akin to saying that if you just sit there and do nothing and say nothing you have not “refused”.
[quote]Jewbacca wrote:
[quote]mapwhap wrote:
Jewbacca,
You can always ASK to have an attorney present, but you do not always have the RIGHT to have an attorney present.
The only time you have a LEGAL RIGHT to counsel is when you are under arrest.
There is no legal right to have an attorney present for a breathalyzer test. You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.
Many states now have gone to writing a search warrant for your blood if you refuse the breathalyzer, but that will be based on how much probable cause was developed during the stop. [/quote]
According the USSC, you are under arrest any time you are not free to leave, but that is beside the point here,
“You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.”
No, it’s not. You may not have the right to counsel at the breath test, but your assertion of that right (even if you don’t have the right) is not a refusal.
It’s a subtle distinction, and the goal is not to get a lawyer. The goal is delay and fucking up the works until your BAL is below .08.
Same with getting a blood test. In most states, they need a warrant. Assert that you are on blood thinners, which means they have to get a nurse to do the test, in case you bleed out. Getting a warrant and/or a nurse buys you an hour or two.
[/quote]
I did an internship at the DA’s office in the vehicular crime bureau, 75% DUI cases. You definitely dont have a right to counsel. If that were true a state appointed attorney would have to show up on request.
Of the videos ive watched of guys at the station doing the intoxilyzer test and field tests, the guys who asked to call their lawyer were given the opportunity to. Every single one of them was bullshitting making fake phone calls with their cell phone just to try and delay the blow. The cops tended to be nice to the ones who werent being annoying giving them about 10 minutes to make their calls for advice. But they were definitely not going to wait for an attorney to show up. If the guy waited too long making excuses they just annouced it was going to be a refusal and that was it.
And when the ADA came in to watch the tapes they hated it when the person refused to blow and then aced the field tests. The jury never convicts when they see a completely coherent person. So the person tended to get a decent plea if his video was real weak. 6 month suspension, X hours of class, probation.
[quote]BONEZ217 wrote:
And when the ADA came in to watch the tapes they hated it when the person refused to blow and then aced the field tests. The jury never convicts when they see a completely coherent person. So the person tended to get a decent plea if his video was real weak. 6 month suspension, X hours of class, probation. [/quote]
Do you know what the pleas usually were. What do they end up charging a person with?
[quote]Eli B wrote:
[quote]BONEZ217 wrote:
And when the ADA came in to watch the tapes they hated it when the person refused to blow and then aced the field tests. The jury never convicts when they see a completely coherent person. So the person tended to get a decent plea if his video was real weak. 6 month suspension, X hours of class, probation. [/quote]
Do you know what the pleas usually were. What do they end up charging a person with?
[/quote]
Driving while impaired.
Above .04 and below .08 still gets you in trouble. And the math they use to extrapolate the number you blow and the time you get pulled over is valid in court.
If youre under 21 and have .01+ youre in trouble no matter what a field sobritey test shows. Well that actually depends on if the state or county has “no tolerance” laws. NY is pretty strict all over
Don’t drink and drive.
[quote]Jewbacca wrote:
[quote]mapwhap wrote:
Jewbacca,
You can always ASK to have an attorney present, but you do not always have the RIGHT to have an attorney present.
The only time you have a LEGAL RIGHT to counsel is when you are under arrest.
There is no legal right to have an attorney present for a breathalyzer test. You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.
Many states now have gone to writing a search warrant for your blood if you refuse the breathalyzer, but that will be based on how much probable cause was developed during the stop. [/quote]
According the USSC, you are under arrest any time you are not free to leave, but that is beside the point here,
“You can ask, you will be told no, and you will have to make the decision on your own whether or not you are going to blow. It’s that cut and dried.”
No, it’s not. You may not have the right to counsel at the breath test, but your assertion of that right (even if you don’t have the right) is not a refusal.
It’s a subtle distinction, and the goal is not to get a lawyer. The goal is delay and fucking up the works until your BAL is below .08.
Same with getting a blood test. In most states, they need a warrant. Assert that you are on blood thinners, which means they have to get a nurse to do the test, in case you bleed out. Getting a warrant and/or a nurse buys you an hour or two.
[/quote]
This stalling tactic was a common tactic that was utilized by defense attorneys when giving out legal advice to their clients in the western Michigan area for a while. I understand the rationale behind it, but there are a lot of variables surrounding the waiting game behind postponing your chemical test. And if part of the legal advice given is to simply not give an answer of yes or no to a chemical test you will be sorely disappointed when you collect your belongings after bonding out on your DUI or OWI charge and find that your license has been suspended and that you will have 6 points added to your driving record for simply refusing to submit to the offered chemical test. This hard suspension and added points will be assessed to you even if you are found not guilty of the original charge.
Now, I can only speak from my experience in the Michigan area, but some attorneys will hang their hat on the fact that if their client stood mute when asked to submit to a chemical test, it cannot be deemed as a Refusal. This is incorrect, as long as the officer can articulate that the refusal was reasonable.
In Michigan the defense attorney will have their client schedule a DLAD hearing (Drivers License Appeal Division) in order to contest this suspension. I have testified at several of these hearings and have never lost. I have to prove the following four issues at these hearings:
- Whether I had reasonable grounds to believe the person committed the crime.
- Whether they were placed under arrest for the crime.
- If the subject refused to submit to a chemical test upon the request of the officer, and whether the refusal was reasonable.
- Whether the person was advised of his chemical test rights.
Issues 2 and 4 are very easy to articulate to the magistrate and I have never had any attorney argue these issues.
Issue # 1 includes my reason for the stop, what I observed that led me to believe the person was under the influence of alcohol or drugs. This is fairly straight forward but sometimes comes under question, especially in cases where the reason for the stop did not initially lead me to believe the subject was driving under the influence, such as the case of stopping somebody for an equipment violation such as a headlight out etc… In these situations I have to articulate why I feel the subject was under the influence based on my personal contact with the subject and my observations such as odor of intoxicants, bloodshot and glassy eyes, admissions to drinking, poor coordination, field sobriety tests, etc.
Issue #3 is where these attorneys believe they are going to get their client out of this mandatory suspension, based on the fact that the Refusal was not reasonable. With my department policy we give the subject one hour from the time they are read their chemical test rights to make up their mind on whether or not they are going to submit to the test. The chemical test rights are given within minutes of the subject being placed in the silver bracelets. The Magistrates / Judges have ruled time and again in favor of the officer that this one hour time frame is reasonable. The Magistrate has also ruled that in those cases where the subject stands mute his/her silence is equivalent to a Refusal.
In reference to the issue of stalling the chemical test the mere issue of me obtaining a search warrant for blood does not add much time at all. In fact I have gotten into the habit of immediately typing up the affidavit for the search warrant if I suspect the subject may attempt to stall the test. While we give the subject access to a telephone and phone book so they can call their attorney, priest, mom, or whoever they wish for guidance on what to do, I am typing the affidavit. So if at the end of their golden hour they refuse or stand mute, I simply fax the affidavit off to a magistrate and I have the warrant within a few minutes. Not a big deal. On an average I have a chemical test from the subject within an hour to an hour and a half from the time of the stop whether they refuse or not.
Another issue with stalling the test based on your attorneys guidance depends on when you consumed your last drink. For example, if you pound several of your drinks right before you climb into your car your body has not had a chance to absorb all of that alcohol yet. So if you get stopped by the police and arrested for DUI / OWI and choose to take your attorneys guidance of stalling your test, your BAC (blood alcohol content) may come back higher than what it would have if you got the test over as soon as possible. In other words, if your BAC was .08 at the time of the stop and you choose to stall, your body will have time to absorb that alcohol that you just pounded and your BAC may come back at a .10, two hours after your stop.
Jewbacca, I don’t know where you practice law (if you do), but it CLEARLY is not in Texas.
If you think all that “delaying” crap actually works, you are sorely mistaken.
Assert that you’re on blood thinners to get a nurse? Really? Cos it’ll buy you a couple hours?
I got news for you…at my agency, we have the search warrant affidavits already written up…all we do is fill in the date, the name, and the other particulars. We have a 24 hr magistrate, who signs it, and then off to the hospital we go, where an ER nurse is standing by to take your blood.
Unless, of course, it’s one of our DWI enforcement weekends, in which case we have a nurse waiting at the jail.
Total delay time: less than 30 minutes.
And I’ve been there plenty of times when people try the “I want a lawyer.” thing before they blow. It states quite clearly on the STATE ISSUED FORM that YOU DO NOT HAVE THE RIGHT TO HAVE AN ATTORNEY PRESENT before making the decision.
So yes, it really is that cut and dry. As I said, you clearly don’t practice law in Texas.
[quote]Ritter wrote:
[quote]EMT-FF Jordan wrote:
I don’t necesarily agree with that above statement…that one night in jail is on your record…whether you are charged or not, if you go into a public service career, it really doesn’t look good, especially if there is a lot of people who are waiting behind you, they won’t want to find the truth and they will move down the line to the next person…
One piece of advices, don’t get yourself into a spot where you can be accused of something, don’t have anything illegal in your car, loaded guns, drugs, containers of alcohol in reach…knives within reach…etc… :)[/quote]
Wait a minute…It’s illegal to have knives within reach? I have one tucked between my passenger seat and the console. In florida at least, I thought you could have one in the car legally?[/quote]
This ain’t England, you can have knives (3.5" blade) in your car.
[quote]EMT-FF Jordan wrote:
One piece of advices, don’t get yourself into a spot where you can be accused of something, don’t have anything illegal in your car, loaded guns, drugs, containers of alcohol in reach…knives within reach…etc… :)[/quote]
I think too many people don’t heed this very important advice.
I have no problem letting an officer search my car, because I don’t have anything in it (just don’t open the trunk).
DB