Refusing a breathlizer after passing the field sobriety

[Irishlad4u]

Every case is different. A blanket rule cannot cover every situation. What if you're stopped, and asked "How are you?" STFU and ask for a lawyer. Where are you coming from? STFU and ask for a lawyer. Where are you going? STFU and ask for a lawyer. Even if you're on the way to church...STFU and ask for a lawyer?

Certainly will result in arrest, and search incident to arrest. So, if you have anything to hide...pot under the seat, unprescribed viagra, unpaid traffic tickets, etc...even if you beat DWI, you lose on the pom and the pocs. Once you're arrested, you may beat the rap, but won't beat the ride. It would be nice to beat the ride if you're truly cold-stone sober.

[Irishlad4u]

SJ advice 11/13/2010:
"It depends on the circumstances. If all you're doing is innocently walking down the street, I don't see a problem with answering a few questions -- politely and sticking only with answering those questions".

[Drtry2]

if your getting stopped you did something to draw attention. if you have been drinking don't say a word! STFU when the cop asks you the first question, motion for a pen and paper, on it right that you wish to invoke all your legal rights afforded to you, and Keep You Mouth Shut.

Its gonna cost you regardless, but by STFU it will cost you less.

[acp5762]

Originally Posted by titanicvol

in Tennessee, we have what's called the 'implied consent' law where you have to give a breathalyzer if asked. If you refuse, you break that law and are automatically guilty. What may save your friend....if the only reason he was pulled over was because he was pulling out of the parking lot of a bar, that's considered profiling and should not stand up in court. I remember the same thing happened to the late Steve Mcnair here in Nashville. He was pulled over but the charge was thrown out after the dash cam of the cruiser did not show he violated any traffic laws so the stop did not have probable cause. Good luck to your friend.

That was lucky.

[ShysterJon]

Originally Posted by Waldo P. Emerson-Jones

SJ, assume I've had a drink or two in the last few hours, cop pulls me over for some traffic violation, and during the stop asks me if I've been drinking. I don't think I'm intoxicated and don't think there's any obvious signs I've been drinking. What's best response? "No sir," or "officer, I respectfully decline to answer that question."Obviously, my best case scenario is to avoid arrest if possible. Refusing to answer if I've been drinking even when I don't think I'm intoxicated seems likely to lead to certain arrest. Otoh, I don't want to cause unnecesary problems for myself by getting caught in a lie. Am I under a legal duty not to lie to police when asked an incriminating question?

A point needs to be made here at the beginning. There is a “typical” (and I use that term VERY loosely) traffic stop where the cop will think there’s a good chance the driver is committing DWI. The factors that influence the cop’s opinion include when and where the stop is made, who’s in the vehicle, and the nature of the moving violation. For example, if four nuns are in an old VW bus at 8:00 a.m. by Ursuline Academy and the driver crosses a solid white line, the cop is probably not going to suspect the driver is impaired. But if a lone male is going 80 mph on Central at 3:00 a.m. Saturday morning, you can bet your Mavs season tickets that the cop will suspect the driver is impaired.

When the cop suspects the driver may be impaired, the moment the driver presents his face at the open window, the cop will shine his flashlight in the driver’s eyes to see whether they’re watery (a rough indicator of intoxication) and the cop will take a deep breath to see whether he can perceive the smell of alcohol (or something else) on the driver’s breath or in the car. I have seen a number of videos where the officer did a full-blown HGN (horizontal gaze nastagmus) test at the driver-side window. I can’t recall watching one video in which the cop didn’t do at least this minimal evidence-gathering BEFORE the cop asked whether the driver had been drinking. The cop will have perceived some evidence of intoxication before popping the “Have you been drinking tonight, sir?” question. So it’s not as if every cop during every traffic stop asks the driver if they’ve been drinking; rather, the cop will later be able to articulate a specific, reasonable suspicion as a basis for asking the question.

With that background in mind, in my opinion, I don’t think it helps to admit to drinking alcohol during a traffic stop. Let’s take three possible scenarios where we might consider admitting to drinking:

Scenario 1: Larry admits to drinking because he wants to create rapport with the cop. He thinks the cop will appreciate it that he’s being frank.

Scenario 2: Curly admits to drinking but thinks he can explain it away. Curly says, “Yes, officer, I’ve been drinking tonight but I only had one beer and I finished it two hours ago.”

Problems: You risk making your situation worse because you’ve admitted to drinking. You’re also spraying your breath into the cop’s nose by speaking, and if your words are slurred you’re just digging a deeper hole. Besides, most cops aren’t your friends and don’t want to be. They want to put your ass in jail and pad their arrest stats.

Scenario 3: Moe admits to drinking because he surmises that the cop could take him denying drinking as an obvious lie (example: the cop observed Moe leaving a bar at 2:00 a.m.) that could piss the cop off, making Moe’s situation worse.

Problems: There’s a difference between being stupid and being quiet. If you’re looped and say (or slur), “Oh, no, officer! I haven’t had a drink for weeks! Hiccup!” then you’re just going to look like an idiot when the video is played to the judge and/or jury. And don't underestimate the capacity of the criminal justice system to punish people just because they're stupid.

There is no law requiring a suspect to tell the truth to the cop under these circumstances. On the other hand, there is a right, older than Magna Charta, to be free of compelled incrimination. That is the essence of the Fifth Amendment.

Personally, if I’ve been drinking, I were stopped, and the officer asked me if I’d been drinking, I’d only shake my head “no.” The video probably won’t capture the movement of my head but the cop will get the message. I certainly would NOT suggest that a person risk the chance of antagonizing the officer by saying something like, “I respectfully decline to answer” or “I need to talk to my lawyer before answering that question.” Again, bear in mind that you’ll be nervous with the cop in your face. Whatever you say will not be nearly as eloquent as you want it to be.

Originally Posted by Waldo P. Emerson-Jones

Also, can prosecution introduce into evidence a refusal to take a fst or breathalyzer? I'm guessing they're out under 5th amendment?

Yes:

"A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial."

See Texas Transportation Code, § 724.061. Admissibility of Refusal of Person to Submit to Taking of Specimen.

Originally Posted by Irishlad4u

SJ advice 11/13/2010:
"It depends on the circumstances. If all you're doing is innocently walking down the street, I don't see a problem with answering a few questions -- politely and sticking only with answering those questions".

You're comparing apples with oranges. All my views in this thread assume the suspect has consumed an alcoholic beverage and was operating a motor vehicle before they were stopped. That's not the same thing as just walking down the street.

[acp5762]

Originally Posted by Drtry2

if your getting stopped you did something to draw attention. if you have been drinking don't say a word! STFU when the cop asks you the first question, motion for a pen and paper, on it right that you wish to invoke all your legal rights afforded to you, and Keep You Mouth Shut.

Its gonna cost you regardless, but by STFU it will cost you less.

Thats cute, Now put yourself in the position of a Police Officer making a stop. First off he's trained to make observations and to make reasonable decisions on them. At the time of the stop, before he even says anything to you he has radioed his location, your vehicle description lic plate number, and any basic description about you. To pose this strategy of STFU and then asking him for a pen isn't smart. To an officer giving you a pen is like giving you a weapon. If you can't answer or won't answer his questions it won't be in your best interests. I don't know who tells people this crap but you are required to obey the Law and you are required by Law to answer questions pertaining to any investigation that pertains to you. Although you have a right to remain silent, and don't have to answer questions that you feel maybe self incriminating, everything you do and don't do will be documented. That won't make your case any easier or less costly. Get this, if you know you're gonna get charged just come clean do the best ya can regardless of what people tell ya. Answering his questions without elaborating is far better than asking him for a pen and paper. He will draw a conclusion to that and it won't be a good one.

[Drtry2]

Am I mistaken on this: Once a police officer suspects a person has committed a crime, he is required to read that person his/her rights or any information gathered from the person can be thrown out in court.

I ask this because if a police officer mentions that he smells alcohol, does he not think a crime has been committed if he asks you to test?

[Holysheepshit]

Originally Posted by acp5762

Get this, if you know you're gonna get charged just come clean do the best ya can regardless of what people tell ya. Answering his questions without elaborating is far better than asking him for a pen and paper. He will draw a conclusion to that and it won't be a good one.

I disagree with this. Do not give up your fifth amendment right to STFU!!! If you come clean, you've just given the officer your confession that you are guilty.....

Read my posts. Learn from my mistakes. If I would have refused the field sobiety test and STFU, I would have gotten that DWI charge dismissed.....

You are in the spot light on video! WHATEVER you do is gathered as evidence for your trial....

From my experience, I have learned that the police are not my friend! I will NEVER cooperate with the police ever again.........:mf_bluesbrother :

My best advice, if you've been drinking, the police are gonna say they smell alcohol. Don't say anything. Hand them your drivers license and insurance card. Refuse every command he tells you, but be polite. You don't want an ass whipping. Don't let him make you stand in one place so you can sway back and forth. You're on video. Put your hands where they can see them. Refuse the breathalyzer test. Let yourself be arrested peacefully. Go to jail, refuse the blood test, eat some jail food, get plenty of rest, and be bonded out. Hire an attorney and fight this shit in court........

You may beat the rap, but you're not gonna beat the ride....

I gotta go to court in the morning to face my lawsuit against Citibank. Had to stop paying my credit cards because the state of Texas doesn't give a shit about your bills or your credit score. They just want your money!!!

[acp5762]

Originally Posted by Holysheepshit

I disagree with this. Do not give up your fifth amendment right to STFU!!! If you come clean, you've just given the officer your confession that you are guilty.....

Read my posts. Learn from my mistakes. If I would have refused the field sobiety test and STFU, I would have gotten that DWI charge dismissed.....

You are in the spot light on video! WHATEVER you do is gathered as evidence for your trial....

From my experience, I have learned that the police are not my friend! I will NEVER cooperate with the police ever again.........:mf_bluesbrother :

My best advice, if you've been drinking, the police are gonna say they smell alcohol. Don't say anything. Hand them your drivers license and insurance card. Refuse every command he tells you, but be polite. You don't want an ass whipping. Don't let him make you stand in one place so you can sway back and forth. You're on video. Put your hands where they can see them. Refuse the breathalyzer test. Let yourself be arrested peacefully. Go to jail, refuse the blood test, eat some jail food, get plenty of rest, and be bonded out. Hire an attorney and fight this shit in court........

You may beat the rap, but you're not gonna beat the ride....

I gotta go to court in the morning to face my lawsuit against Citibank. Had to stop paying my credit cards because the state of Texas doesn't give a shit about your bills or your credit score. They just want your money!!!

Well thats the advice most people take. Its true you can beat the rap but you can't beat the ride. Refusing to cooperate completely doesn't guarantee you won't be convicted. I guess in most cases people feel screw it let them figure it out. I'll tell ya this, about 95% of the people that are stopped for suspected DWI/DUI have their car towed and they go to jail regardless whether they cooperated or not. Of course not everyone is convicted. I suspect your case would have turned out the same even if you would have refused everything. But the main objective to police, whether their investigation is flawed or not is they got you off the road that night cause you were most likely a danger to others on the road.

[ShysterJon]

Originally Posted by Drtry2

Am I mistaken on this: Once a police officer suspects a person has committed a crime, he is required to read that person his/her rights or any information gathered from the person can be thrown out in court.

I ask this because if a police officer mentions that he smells alcohol, does he not think a crime has been committed if he asks you to test?

Yes, you're mistaken.

Do the police have to give a Miranda warning when making an arrest?

No. The police do not need to give the Miranda warnings before making an arrest. To use self-incriminating evidence against a person at trial, however, the police must give Miranda warnings or an equivalent warning before questioning a person.

In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona that the police must advise people of their rights before a law enforcement officer questions those in police custody. Custody refers to the deprivation of a person's freedom of action in a significant way. [In your hypothetical, the driver would not be "in custody" under the law. I know, I know. You may respond that the driver is not free to go during a police traffic stop. But when to ask, "Am I free to go, officer?" is a topic for another thread (and on which I've written before).]

The police questioned and arrested me without giving a Miranda warning. Will a court dismiss the case?

No. A prosecutor can still bring charges against suspects even if the police failed to give Miranda warnings before conducting police interrogations. While prosecutors cannot use evidence gathered during police interrogations at trial if the defendant was not Mirandized, the prosecutor can use other evidence to secure a conviction.

See www.FindLaw.com, "FAQs: Police Interrogations".

[acp5762]

Originally Posted by Drtry2

Am I mistaken on this: Once a police officer suspects a person has committed a crime, he is required to read that person his/her rights or any information gathered from the person can be thrown out in court.

I ask this because if a police officer mentions that he smells alcohol, does he not think a crime has been committed if he asks you to test?

Yes, reading a suspect his or her rights, per Miranda is not a condition of detention , but rather a safeguard against self- incrimination, as a result, if a Police Officer declines to read the Miranda Warning to a suspect in their custody, the police may still interrogate that person and act upon the information given but may not use the suspect's statements to incriminate him or her in a criminal trial. Reading a person their Mirand Warning informs a person of their rights. Once any interregation begins if you give up your right to remain silent any elicit incriminating statement can be used to incriminate a person in a criminal trial. For instance if your Miranda is read to you and a Police Officer asked you " Do You think You are Drunk" and you respond " yes Iam I've had 12 beers. That statement can be used to incriminate you because you waived your Miranda right to remain silent. Your statement would be incriminating. But if you responded to that same question by just shrugging your shoulders or simply replying " I don't know" You still haven't waived your right to remain silent cause you didn't make an elicit incriminating statement.

[The_Waco_Kid]

Originally Posted by ShysterJon

but it's college football season so instead I'm going to post an updated version of my Texas DWI Law thread. But I'll wait 'til after Texas-okiehomo because I wouldn't want to inadvertently help some okie hillbilly avoid getting arrested driving his crappy dooley shitfaced in my fair city and not getting ass-banged in Sterrett because he's wearing a cute polyester lesiure suit.

But I digress.

LOL I knew there was more than one reason i like ya SJ!

Hook'em Horns!

anyway i've been in a few situations along these lines. In a Galaxy far far away and a long time ago i got popped for DUI, twice. each time i blew a 1.1, in the State i lived in at the time the limit was 1.0. Toast. And in truth i deserved it as i had been drinking at a bar each time just before getting pulled over. The first time, as SJ says, the MAN was sitting outside the bar watching people leave, which is NOT illegal and i had just had a major fight with a slut-ass bitch Ho i used to call my GF, so i left her drunk ass at the bar. I was not a nun in a VW at 8 AM, i was a driving my Trans Am, at 2 AM. (in case you didn't know, sports cars are both a babe magnet AND an excuse for cops to pull you over) and since i was pissed off i peeled out of the parking lot and that's why the MAN stopped me. Gave him a reason i did.

Many years later leaving my home Galaxy, heading back to my new Galaxy (Texas) i got pulled over. Why? some trucker reported to the state police that they had seen a White Toyota 4x4 weaving in and out of traffic and throwing beer cans out the window. Two Truckers actually blocked me in and "held" me until a cop arrived. Was i the guy throwing beer cans out of my truck? Nope. Had i drank anything that day? Nope. Did i agree to a field breath test? Yep. The results? 0.0. Cop didn't ask for a FST. On my way in minutes i was. Interestingly, I politely declined a search of my Truck, as is my right. A lawyer told me that many years ago. He said it didn't matter if i had anything "illegal" in my vehicle or not, i can refuse a search and the only way they could do a search is with a warrant AFTER i was placed into custody for a crime. If they do have a reason to arrest ya and then find a kilo of Peruvian flake hidden in your car, well that's just another issue for your lawyer, Perry Mason.

[acp5762]

Originally Posted by The_Waco_Kid

LOL I knew there was more than one reason i like ya SJ!

Hook'em Horns!

anyway i've been in a few situations along these lines. In a Galaxy far far away and a long time ago i got popped for DUI, twice. each time i blew a 1.1, in the State i lived in at the time the limit was 1.0. Toast. And in truth i deserved it as i had been drinking at a bar each time just before getting pulled over. The first time, as SJ says, the MAN was sitting outside the bar watching people leave, which is NOT illegal and i had just had a major fight with a slut-ass bitch Ho i used to call my GF, so i left her drunk ass at the bar. I was not a nun in a VW at 8 AM, i was a driving my Trans Am, at 2 AM. (in case you didn't know, sports cars are both a babe magnet AND an excuse for cops to pull you over) and since i was pissed off i peeled out of the parking lot and that's why the MAN stopped me. Gave him a reason i did.

Many years later leaving my home Galaxy, heading back to my new Galaxy (Texas) i got pulled over. Why? some trucker reported to the state police that they had seen a White Toyota 4x4 weaving in and out of traffic and throwing beer cans out the window. Two Truckers actually blocked me in and "held" me until a cop arrived. Was i the guy throwing beer cans out of my truck? Nope. Had i drank anything that day? Nope. Did i agree to a field breath test? Yep. The results? 0.0. Cop didn't ask for a FST. On my way in minutes i was. Interestingly, I politely declined a search of my Truck, as is my right. A lawyer told me that many years ago. He said it didn't matter if i had anything "illegal" in my vehicle or not, i can refuse a search and the only way they could do a search is with a warrant AFTER i was placed into custody for a crime. If they do have a reason to arrest ya and then find a kilo of Peruvian flake hidden in your car, well that's just another issue for your lawyer, Perry Mason.

I know what ya meant, but just so you'll know in the future. Nobody can have 1.1 BAC, cause anything past 0.50 is deadly. The highest BAC I've ever heard anyone having was an LSU student back in the 90's he died after his BAC level reached 0.55. The Legal limit now for DWI in Louisiana and I would assume most other states, is 0.08. So watch that last gulp, lol.

[The_Waco_Kid]

1.0, .10, what's the diff? lol actually experts say anything at or above .32 can result in an "alcoholic coma" from which you just might find yourself in the "Big Sleep". Permanently. And the Home Galaxy did lower to .08 some years later. I recall that LSU kid basically guzzled about a fifth of whiskey all at once. for some perspective i have a bottle of Dewars in my hand now (reading it, not drinking it) and it says 750ml at 40% Alcohol by volume so that's like drinking about 300ml of pure grain in one shot if you are dumb enough to pull a John Belushi.

[acp5762]

Originally Posted by The_Waco_Kid

1.0, .10, what's the diff? lol actually experts say anything at or above .32 can result in an "alcoholic coma" from which you just might find yourself in the "Big Sleep". Permanently. And the Home Galaxy did lower to .08 some years later. I recall that LSU kid basically guzzled about a fifth of whiskey all at once. for some perspective i have a bottle of Dewars in my hand now (reading it, not drinking it) and it says 750ml at 40% Alcohol by volume so that's like drinking about 300ml of pure grain in one shot if you are dumb enough to pull a John Belushi.

Well there is a difference between 1.0 and 0.10, if you had been paying attention in Math class you would know the decimal place changes the value of the number. Oh and another thing I foregot to ask you, what the shit are you doing throwing Beer cans out of the window of your car? Thats illegal in this galaxy, it's called Littering. Another thing I don't get is you went from driving a Trans-AM, probably a MidNight Blue Metallic to a white Pickup truck a Toyota at that. I don't know what this Dewars is, sounds like some kind of Rock Gut. Whatever happened to Crown Royal, I mean if you're gonna drink. Dude get your life back in order. Oh, and it wouldn't hurt to take a remedial Math Course, lol. Play safe.