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  • DUI Senario

    Alright say you stop a person for suspicion of DUI and this guy is 21 or older. You give an FST and he passes, you then have him blow in the breathalyzer and he hits a .03. He did not seem impaired while performing the FST's but yet he blew a number on the breathalzyer so he is somewhat under the influence of alcohol. What would you do? Would you take him in even though he didn't show any signs of impairment on the FST's? But since he blew a number on the breathalyzer he is at more of a risk of causing an accident than a sober person.

    Would you take this guy in?

    Thanks for your input everyone

    Stay Safe.

  • #2
    You CANT 'take the guy in'........that is what is commonly referred to as 'kidnapping'.........

    If he passes the SFSTs, and blows an .03, and doesn't show other signs of impairment, then you do not have the probable cause to make an arrest for DUI.

    He is on his way about 30 seconds after you have completed your investigation, that is unless you REALLY like being the defendant in Federal Court
    The posts on this forum by this poster are of his personal opinion, and his personal opinion alone

    "Politicians are like diapers. They need to be changed often and for the same reason"

    "We fight not for glory; nor for wealth; nor honor, but only and alone we fight for freedom, which no good man surrenders but with his life"

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    • #3
      In Florida we don't use PBT as part of pre-arrest testing. Obviously, if you're in a state where you can use it, you probably wouldn't have used it if there were no signs of impairment.

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      • #4
        If the subject doesn't register over .08 on the breathalyzer then you have no probable cause to effect an arrest. If you were to do so the charges wouldn't even be filed by the Prosecuting Attorney. I'll tell you what charges would be filed though, on you.
        Invisible Signature.......FAIL

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        • #5
          Originally posted by LA DEP View Post
          You CANT 'take the guy in'........that is what is commonly referred to as 'kidnapping'.........

          If he passes the SFSTs, and blows an .03, and doesn't show other signs of impairment, then you do not have the probable cause to make an arrest for DUI.

          He is on his way about 30 seconds after you have completed your investigation, that is unless you REALLY like being the defendant in Federal Court
          ROLMAO!
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          • #6
            You can't arrest someone simply because they have alcohol in their system. If he passed all of the SFSTs and blew an 03, he'd be on his way. You don't have a case. You're probably safer with an adult with a .03 on the road than you are with a teenager texting/talking on a cell phone.

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            • #7
              But if he showed signs of impairment you can take him in even with a .03 or .04 or anything under the legal limit?

              Officers discretion basically
              Last edited by NextGenOfc; 09-18-2009, 01:58 PM.

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              • #8
                Originally posted by NextGenOfc View Post
                But if he showed signs of impairment you can take him in even with a .03 or .04 or anything under the legal limit?
                You would have to articulate more than a few signs of impairment, AND driving patterns before the stop.

                and then be prepared to make to look like a complete fool on the witness stand WHEN his private attorney tears your report into bite sized pieces.

                DUIs are on of the most hotly contested issues in court (out here in LA anyway), and there are lots of lawyers that specialize in DUI defense.

                Unless the guy/gal is falling over during the SFSTs, you are going to have a hard time articulating why you made the arrest, and if they ARE falling over with a .04 BAC I would be looking for a 'combo' arrest, as they most likely have something else (or several 'something elses') on board besides alcohol.
                The posts on this forum by this poster are of his personal opinion, and his personal opinion alone

                "Politicians are like diapers. They need to be changed often and for the same reason"

                "We fight not for glory; nor for wealth; nor honor, but only and alone we fight for freedom, which no good man surrenders but with his life"

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                • #9
                  Originally posted by LA DEP View Post
                  DUIs are on of the most hotly contested issues in court (out here in LA anyway), and there are lots of lawyers that specialize in DUI defense.
                  Reminds me of hearing about a case (not sure where) but the defendant blew a .2-something and was let off because he didn't appear drunk on the video tape, if this is true then wow

                  But I understand what you are saying about having perfectly clear evidence in order to get a successful DUI case.

                  Is this basically the same concept for people under 21 or is it a zero tolerance policy? I know in CT the legal limit is .02 if under 21.

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                  • #10
                    First off, what ever number he blew on your roadside alcohol sensor is inadmissible in court. That device is only for determining if alcohol is in his system to help build your PC.

                    If you use FST properly and they pass you really have nothing. It's imposibble to be so under the influence that you drive bad and then pass a properly done FST. If I used the alcosensor at the stop and it showed a low or no alcohol reading I would start considering drugs. I would have run the alcosensor first because it guides me on what I should be looking for.
                    If I'm looking for drugs I'm going to pay real close attention to the nystagmus test and other indicators like sweating, elevated pulse, behavior, etc...
                    If I get enough I read him his implied consent rights and request a blood test.

                    Always do the roadside breath test before the FST. If there's no alcohol and your not very good at the nystagmus test call for someone who is.

                    One other thing is this. The roadside alcohol sensors are not that accurate. That why they aren't admissable in court. If you have enough indicators that they are under the influence of something you can still request a blood test. If they refuse it will all be based on your indicators so if you don't have enough be prepared to be embarrassed in court.

                    Some officers try to look for DUI in everything traffic offense they find. The old addage "if all you have is a hammer everything becomes a nail" is a reality for them. Others use a little more discretion and realize there are a lot of other things that cause driving like your DUI. Number one is a cell phone. Number two is a ****ed off spouse. Number three is a ****ed off spouse on the cell phone .

                    This is all based on my state/agency standards so it may be different for you and your agencies policies.
                    Due to the Juvenile bickering and annoying trolling committed by members of this forum I have started an igore list. If your name is listed below I can't see you.

                    CityCopDC, Fire Moose, Carbonfiberfoot, Damiansolomon

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                    • #11
                      Originally posted by LA DEP View Post
                      You would have to articulate more than a few signs of impairment, AND driving patterns before the stop.

                      and then be prepared to make to look like a complete fool on the witness stand WHEN his private attorney tears your report into bite sized pieces.

                      DUIs are on of the most hotly contested issues in court (out here in LA anyway), and there are lots of lawyers that specialize in DUI defense.

                      Unless the guy/gal is falling over during the SFSTs, you are going to have a hard time articulating why you made the arrest, and if they ARE falling over with a .04 BAC I would be looking for a 'combo' arrest, as they most likely have something else (or several 'something elses') on board besides alcohol.
                      I read your post after I posted mine. You are like my west coast double or something...
                      Due to the Juvenile bickering and annoying trolling committed by members of this forum I have started an igore list. If your name is listed below I can't see you.

                      CityCopDC, Fire Moose, Carbonfiberfoot, Damiansolomon

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                      • #12
                        Alright I'm getting the drift of this now, btw what is a nystagmus test? Haven't heard of this before.

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                        • #13
                          Originally posted by NextGenOfc View Post
                          Alright I'm getting the drift of this now, btw what is a nystagmus test? Haven't heard of this before.
                          google is your friend......

                          Nystagmus would take a couple of pages to explain properly; also, some courts (again, out here in LA) will NOT allow you to even mention nystagmus except as one of your SFSTs, and that it is a 'sign/symptom' of impairment.
                          The posts on this forum by this poster are of his personal opinion, and his personal opinion alone

                          "Politicians are like diapers. They need to be changed often and for the same reason"

                          "We fight not for glory; nor for wealth; nor honor, but only and alone we fight for freedom, which no good man surrenders but with his life"

                          Comment


                          • #14
                            Originally posted by LA DEP View Post
                            google is your friend......
                            ha, alright I'll give it a shot, thanks for the clarification everyone.

                            edit: took less than one minute and I have my answer lol

                            stay safe out there.
                            Last edited by NextGenOfc; 09-18-2009, 02:35 PM.

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                            • #15
                              Originally posted by LA DEP View Post
                              google is your friend......

                              Nystagmus would take a couple of pages to explain properly; also, some courts (again, out here in LA) will NOT allow you to even mention nystagmus except as one of your SFSTs, and that it is a 'sign/symptom' of impairment.
                              Same here, not even DREs can talk about Nystagmus in front of some of the Judges. We have to call it the "Pen to eye exercise", and can only talk about observations such as not watching the stimulus, moving the head, what not. The only exception is if the defense opens the door and asks you about it, then you can go into it.

                              I did have a defense attorney try to goat me into making mistakes on my nystagmus explanation a couple months ago... unfortunately for him I knew a lot more about it than he figured (if you work DUIs and ever get a chance to take Medical Foundations on Visual Systems Testing... please take it). Unfortunately, that was just in a administrative hearing for his license. The hearing officer bought his excuse of having a panic attack (even though I took his pulse and it was normal after I placed the handcuffs on), and found no probable cause for the arrest. The defense tried the same thing on the Judge a couple weeks later, and the Judge's response was, "I don't think so.

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