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  • DUI- Implied Consent/Refusal

    To all of you who regularly encounter DUIs, little help here.

    After building up enough PC and such, when you have a suspected DUI, and you give the implied consent advisory, what do you do when you get the inevitable jackass who cant seem to give the yes or no answer for doing a Chem Test? My most recent one was the guy who wants to talk to his laywer (you dont have that right, I know), and on and on, but wont say yes, and wont say no.

    Eventually he gets around to giving me the okay and of course he tested & failed, but in the interest of streamlining the process, I was wondering what you all do when you get these? Does your state allow you to use no answer as a refusal? Do you just arrest based upon PC/SFST results? Discuss.
    And we know that in all things God works for the good of those who love him, who have been called according to his purpose.”- Romans 8:28

  • #2
    By signing your license in AL you automatically have given implied conscent to a breath test. SFST only gives you more PC to take them to the station for the test. Just have to document all the incidents leading up to the test in your I/O.

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    • #3
      I've ran refusals for people who've himed and hawed on me, not really answering either way. I give them two kicks at the cat, and don't let it go on for more than 5 min. I've never had one dismissed that I know of, and I'm fairly sure our DA's office would have ripped me already if it were a problem.

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      • #4
        We had a guy RA on me and another guy. But before that, he said he would take a breathelizer. Buy the time we got him in the car, his behavior was such that there was no way that breath or blood could have been done. Charged him, and the judge dismissed it.

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        • #5
          If I don't get a yes or no, I explain to the defendant that I will be taking it as a refusal. Then, if its third offense or higher, I take a blood sample. Done deal, no questions asked.
          "I only had a couple!"

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          • #6
            Originally posted by fiftyfour23
            I've ran refusals for people who've himed and hawed on me, not really answering either way. I give them two kicks at the cat, and don't let it go on for more than 5 min. I've never had one dismissed that I know of, and I'm fairly sure our DA's office would have ripped me already if it were a problem.
            I'm basically the same way. I tell them if they don't give me an answer right now (usually after 2 requests) then I will accept it as a refusal. They usually answer pretty quick...usually refusing. Then they lose their license after 40 days in TX.

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            • #7
              Originally posted by OffDuty
              To all of you who regularly encounter DUIs, little help here.

              After building up enough PC and such, when you have a suspected DUI, and you give the implied consent advisory, what do you do when you get the inevitable jackass who cant seem to give the yes or no answer for doing a Chem Test? My most recent one was the guy who wants to talk to his laywer (you dont have that right, I know), and on and on, but wont say yes, and wont say no.

              Eventually he gets around to giving me the okay and of course he tested & failed, but in the interest of streamlining the process, I was wondering what you all do when you get these? Does your state allow you to use no answer as a refusal? Do you just arrest based upon PC/SFST results? Discuss.
              I am an Indiana officer too. It would be considered a refusal. They would be arrested for OWI-Refusal.

              You had to have have PC to offer the chemical test in the first place. If they refuse, lock'em up. It is always better to get the chemical test but you are not required to but up that that crap.
              Last edited by Tennsix; 08-16-2005, 06:10 AM.

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              • #8
                If they will not give me a yes or no concerning the breath test I remind them that if they refuse, I will call a judge and seek a warrant for their blood.

                I let them know that the judge I wake up at 3am might be the same judge to hear his case in a few weeks and will remember getting up at 3am. Most of the time this gets a yes, if I still get a no, well... We get blood even on first offense OWI's.

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                • #9
                  "You have no right to speak with an attorney or anyone else before making a decision, and any such request will constitute a refusal." That is almost word for word what the "Chemical Test Warning" form states in PA. Silence alone does not constitute a refusal, but refusing to give an adequate breath sample does. If you don't say anything, but you blow into the machine, or extend your arm for the needle, you consented. I have dealt with two refusals and one that was almost. The two simply said, "I don't know what to do, I'll need to talk with someone first." The almost refusal said only the first part and was asked if that meant he was going to refuse. He said that is not what that meant and submitted. It is an automatic 1 yr suspension simply for refusing, and a huge fine if you are still convicted for being incapable of safe driving plus the suspension that comes with the conviction. My DUI arrestees are told, "You have 15 seconds to decide. I don't have time for games."
                  " (T)o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.... " Richard Henry Lee, 1788

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                  • #10
                    I ask them if they will take a breath test before getting to the test location. If the say yes Implied consent is not read. If they say no We read implied consent. If the refuse to awnser the machine is set up and they are given a chance to take it. If the refuse then I have a copy of the printout showing they were given the oppertunity.

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                    • #11
                      In Indiana, we have to read implied consent before we offer a chemical test.

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                      • #12
                        In Connecticut we have to read them the Implied Consent Advisory before the chemical test, too.

                        Once I
                        Cogito ergo summopere periculosus.

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                        • #13
                          We read the implied consent here in Vegas as well. Breath or blood. Unless you have a prior conviction then it's only blood I believe.

                          If they don't wanna blow...then the nurse will take blood by whatever means necessary. We can do urine as well if they are a hemopheliac (sic?) or have a history of heart problems.

                          A drivers license is a privlidge not a right, so once they get one they don't have a choice if we have PC. Of course I've never done a DUI stop yet and this is what I remember from my FTO's and the academy.
                          RIP Sgt. Henry Prendes...EOW 2/1/06
                          RIP Off. James Manor...EOW 5/7/09
                          RIP Ofc. Milburn "Millie" Beitel...EOW 10/7/09
                          RIP Ofc. Trevor Nettleton...EOW 11/19/09
                          RIP Ofc. Daniel Leach...EOW 11/21/09

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                          • #14
                            Implied Consent

                            In New Mexico I read the implied consent card and ask if they will take the test. If they refuse I tell them that I will charge them with AGG. DWI (Refusal) and that the penalty will be worse. I then ask if they are willing to take the test. if they refuse it is AGG DWI.

                            If they do not answer when I ask them the first time I tell them that by not saying anything I will take it as a refual and read them the part about it being AGG. DWI. If they still do not answer they are charged with AGG DWI.

                            If the arrest comes from a traffic accident where another party was injured, I will call the DA's office and get a warrant for their blood.
                            New Rule: The more complicated the Starbucks order, the bigger the *******. If you walk into a Starbucks and order a "decaf grande? half-soy, half-low fat, iced vanilla, double-shot, gingerbread cappuccino, extra dry, light ice, with one Sweet-n'-Low and one NutraSweet," ooh, you're a huge *******.

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                            • #15
                              Originally posted by Tennsix
                              In Indiana, we have to read implied consent before we offer a chemical test.

                              Right. I offer it roadside since the test is admin'd at the jail (saves a step!), and I then read it again once we get there doing the system review.

                              Here in IN, if it is a refusal I can skip the chem test and just arrest, assuming I have the probable cause (the refusals always seem to want to take it after the refusal printout is made though.. odd). The assumption for consent is there by being a licensed driver. Of course those that are usually suspended (or unlicensed) are the ones who dont seem to care about losing something they dont already have. Idiots.

                              This is all helpful stuff to incorporate into my spiel though
                              And we know that in all things God works for the good of those who love him, who have been called according to his purpose.”- Romans 8:28

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