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  • What would you do?

    If you stop a car for speeding or another traffic offense and upon interacting with the driver you detect a slight odor of alcohol coming from the driver and the driver denies drinking anything and you ask the driver to submit to a portable breath test and the results are .04 and then after 5 minutes they blow a .03 what if anything would you do?

    Would you allow them to continue on after citing them or would you advise them to contact someone to come pick them up or sit on the side of the road for a period of time? And if you tell them to stay on the side of the road have you seized that person? You have restricted the movement of that person and they might not feel free to leave.

    Say you advise them not to drive and then you a few moments later observe that person drive off, can you arrest them?

    This is a debate that my department is having and some of us feel that the person has been seized and some think that if you let the person go and they cause an accident that the officer will be held liable.

    What are your thoughts on this?
    Thus the wise win before the fight, while the ignorant fight to win

  • #2
    First of all what is the DWI standard in your jurisdiction...its usually .08 or above. What you're describing doesn't sound like it qualifies for that standard so I would say arrest is out of the question if based only on PBT. You haven't given any other details as to the physical and mental appearance/ demeanor of the driver ie are they slurring speech, bloodshot eyes, nystagmus, coherant, balanced, etc. These details would further cooroborate whether or not the driver is impaired. I don't think its wise to rely solely on the PBT for the basis of arrest. If the outward appearance of the driver is such that it is consistent with impaired driving , but the PBT reading is low as described, then I might suspect Drugged driving and ask for a Drug Recognition Expert (don't know if states outside of Maryland have them or not) to determine if another substance other than alcohol is responsible for the impairment.

    As far as detention goes...supreme court ruled 20 minutes max for investigative detention. The legal test here is this...would a reaonable and prudent person believe they were free to leave after telling them to stay on the side of the road and not to drive anywhere. If they don't believe they are free to leave, or would otherwise face arrest, then that is a detention.

    My advice...leave the car, and drive em home if its that close of a call and the don't live too far away, or call a friend to come get em.

    Comment


    • #3
      The only signs of impairment the driver displayed were slightly bloodshot eyes and like I said the slight odor of alcohol. The officer stated that the driver appeared to be in control of his/her mental faculties but was a smart***. The driver was advised that they would not be allowed to driver due to the PBT results and was advised to stay on the side of the road or call someone. The driver still had another 45 minutes of driving before being home. The officer left the scene after advising driver not to drive and went down the road and sat running stationary radar. The driver after sitting for 3 minutes started car and began to drive away. The officer stopped the vehicle and arrested the driver. The driver being a smart*** refused the Intoxilyzer and the magistrate found PC for DWI and Resist, Obstruct and Delay.

      We also have DRE's but none were available at that time. If there is no PC for DWI arrest can you make driver sit on side of the road or call for a ride? This is whats causing debate at my department.
      Thus the wise win before the fight, while the ignorant fight to win

      Comment


      • #4
        In NY it is .08. How accurate is your roadside meter? Id look for more clues of intoxication and run the SFST to make a judgement. If I felt they were good to go then C-YA. If I thougt they were intoxicated and probable cause for arrest is present then I'd go for it. The BAC can be low but they still may be charged with DWI due to not having an alcohol tolerance. There are the people out who dont drink often and start doing cartwheels after 2 beers. They are just as dangerous as any other drunk on the road.
        And the road becomes my bride.

        Comment


        • #5
          I agree with you. In NC its .08 and our PBT must be calibrated once a month. And I also agree that someone can blow a .04 and be falling down. I arrested a female last month who at 5'2" and 85 Lbs blew a .21 after she only displayed HGN and passed the one leg stand and walk and turn. After waiting a 46 minute observation period while waiting for the Intoxilyzer(busy night all over the county) she blew a .17 and still walking and talking just fine. I think any driver with alcohol in them is dangerous. I know some officers who will cite someone who shows anything on PBT with careless and reckless driving.
          Thus the wise win before the fight, while the ignorant fight to win

          Comment


          • #6
            Originally posted by Mike G from NC
            The only signs of impairment the driver displayed were slightly bloodshot eyes and like I said the slight odor of alcohol. The officer stated that the driver appeared to be in control of his/her mental faculties but was a smart***. The driver was advised that they would not be allowed to driver due to the PBT results and was advised to stay on the side of the road or call someone. The driver still had another 45 minutes of driving before being home. The officer left the scene after advising driver not to drive and went down the road and sat running stationary radar. The driver after sitting for 3 minutes started car and began to drive away. The officer stopped the vehicle and arrested the driver. The driver being a smart*** refused the Intoxilyzer and the magistrate found PC for DWI and Resist, Obstruct and Delay.

            We also have DRE's but none were available at that time. If there is no PC for DWI arrest can you make driver sit on side of the road or call for a ride? This is whats causing debate at my department.
            IMO, If no PC for DWI is found then there is no reason to make them do anything. If the officer was that concerned about them driving then the driver should have been snatched up the first time for DWI. If they passed the SFST and were in driving shape then bye bye..I wouldnt waste their time. Here it is not a matter of Zero tolerance unless they are under 21. This will be interesting to see what pans out in court.
            And the road becomes my bride.

            Comment


            • #7
              I agree with 10-97...if there was no PC for the initial arrest then what was the reason for the second subsequent stop. Its one of those things where the officer can't have it both ways. . . You can't order someone to stay put without sufficient evidence and articulable reasoning, and then also stop them and hook them for not listening to ya. I guess I can see why the officer did what he did because it sounds like it was one of those "grey area" type incidents where discretion and judgement are subjective to the circumstances. Tough call. In the end he might lose the case but at least nobody died the night of the stop because of the officer's actions or lack there of.

              Comment


              • #8
                You should have let him go! The person was not legally under the influence by your own test. Without any additional factors, i.e. drugs, etc, there existed no proable cause for an arrest. Being an asshat is not a crime and does not give the officer the right to deny the subject the right to drive home. The subject should have taken the test to fatten his civil case against the officer for lacking PC for the arrest. Why do some officers try to make their own laws??? The BAC level is clear, set by the legislature.
                "We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm" -George Orwell

                "It's 106 miles to Chicago, we've got a full tank of gas, half a pack of cigarettes, it's dark, and we're wearing diapers." - Blues Brothers

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                • #9
                  Originally posted by savvy317
                  I agree with 10-97...if there was no PC for the initial arrest then what was the reason for the second subsequent stop. Its one of those things where the officer can't have it both ways. . . You can't order someone to stay put without sufficient evidence and articulable reasoning, and then also stop them and hook them for not listening to ya. I guess I can see why the officer did what he did because it sounds like it was one of those "grey area" type incidents where discretion and judgement are subjective to the circumstances. Tough call. In the end he might lose the case but at least nobody died the night of the stop because of the officer's actions or lack there of.
                  Exactly... Grey area...the defense will have a hay day with this one Im afraid. If I didnt deem him intoxicated I wouldnt have gone after him the second time. If I had solid ground that would stand up in court for a DWI arrest then he is on the way to booking. This one might be a rough one. If questions fly or something happens after you stopped him..."At the time I stopped him my investigation found him legally fit to drive and he drove away. What happened after that was beyond my control". We can only do what the law allos us to do. If the state is that concerned about it then they can go to a zero tolerance law.... period. Until then we have to face these circumstances and hopefully make the right decision to keep everyone safe and alive.
                  And the road becomes my bride.

                  Comment


                  • #10
                    Originally posted by savvy317
                    As far as detention goes...supreme court ruled 20 minutes max for investigative detention.
                    What case was that? The last time it came up the Supreme Court specifically stated they would NOT set a hard time limit on investigative detention. There was a case in which they said 20 minutes was justifiable, under the circumstances. They have since ruled a 90 minute detention was justifiable and that a 12 minute detention was NOT justifiable under the circumstances of the case.

                    As to the scenario originally posted, without further information to go on, you've got nothing to extend the stop. Just a simple violation, a slight odor of intoxicants, and a PBT of .03-.04 doesn't rise to the point that the detention can be extended. This is one of the reasons why a PBT should be done last in the FST battery. There may be other things (i.e. drugs) going on, but without doing the FST battery, you do not have enough RS to extend the stop.
                    Originally posted by kontemplerande
                    Without Germany, you would not have won World War 2.

                    Comment


                    • #11
                      All charges have been dropped and now all he/she is facing is a DMV hearing for the refusal of a chemical test. The officer still states that he would make someone park and wait or arrainge other means of transportaion if they show anything on the PBT. We had a meeting yesterday to discuss this and our Chief asked if making the person stay there on the roadside is a seizure. Even though the officer is not there physically making the person stay are they in fact seized? We called one of our ADA's and was advised that if they blew a .07 then they should arrainge other means of getting home due to them being "borderline" and anything less then they should be allowed to leave and you must be able to articulate your reasons for not allowing to them drive away.
                      Last edited by Mike G from NC; 03-27-2007, 01:11 PM.
                      Thus the wise win before the fight, while the ignorant fight to win

                      Comment


                      • #12
                        In response to SRT....this standard of 20 minutes, which is often referred to as the Bright Line Rule for Investigative Detentions, was determined in United States v. Sharpe , 470 U.S. 675 (1985). I know of ongoing arguments from both sides, but the basic , underlying rule in a detention is simple. If someone is being detained then it has to be contemporanious with an ongoing investigation. Once it is determined that either no criminal offense, or indicia of criminal activity is present, the detention must cease. I know this because I'm in the middle of an IAD investigation regarding a detention and this case law has been applied by lawyers from both sides. Stay safe. Savvy

                        Comment


                        • #13
                          without getting into too much... if the person is within the legal limits and sound of mind, then they can not be detained just because you feel since they have consumed alchohol they should not drive. Were only allowed to do what is within the constructs of the law. Not saying it won't be done, but I gaurentee the defense team will have a field day with it.

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                          • #14
                            In our courts jurisdiction, the judge finds that should an individual refuse all field sobriety tests and refuse to blow, a defendant can still be found guilty of OVI if the officer has observed a moving violation, the driver has admitted to drinking or there is a strong smell of intoxicants, and time of stop. I have gotten convictions when I have only these three things. Granted, our judge used to be a prosecutor with the Attorney Generals office.
                            Our business is not one of the customer is always right, in fact, most often they are full of crap.

                            Comment


                            • #15
                              In Montana, we can arrest for DUI between .04 and .08. However, we must be able to articulate traffic infractions, poor driving, poor FST's, etc. in order to prove impairment. Also, we cannot requst the driver submit to a PBT without PC.

                              I've had several instances of smelling odor of an alcoholic beverage on a driver (and having them admit to drinking a "couple of beers"), having them submit to FST's, which they passed with flying colors, and not being able to request a PBT. With these instances, the stop was not for anything indicating impairment, such as failure to maintain lane, etc.

                              If I'd had poor driving as a reason for the stop, I could then request the PBT, even if they passed the FST's. Our PAST advisory specifically states that as a LEO, "I have the right to ask you to submit toa breath test if I have reasonable grounds to believe you are operating a motor vehicle while inder the influence of alcohol".
                              Montana LEO
                              'Where the prairie meets the mountains"

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