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  • #16
    yes...we have 2 DUI possibilities, 1- DUI .08 or higher and 2-DUI incapable of driving safely. I would check the "incapable" box
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    • #17
      I'd be happy to stand there and say "wow, that looks like a pain to figure out" to another deputy while CHP deals with it.
      Government is not the solution to our problem; government is the problem. - Ronald Reagan

      I don't think It'll happen in the US because we don't trust our government. We are a country of skeptics, raised by skeptics, founded by skeptics. - Amaroq

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      • #18
        Originally posted by ateamer View Post
        I'd be happy to stand there and say "wow, that looks like a pain to figure out" to another deputy while CHP deals with it.
        hahaha

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        • #19
          I would cite and let the courts dismiss it. Due to the extreme nature of the accident and the obvious inability to operate the vehicle, regardless of what he blew I would say not citing him would cause the story to hit the papers and raise some questions from not only your Chief but the cityfolk as well.

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          • #20
            We have DUI and Wet Reckless, but Wet Reckless isn't something you arrest for it's something that they plea to. I really can't say what I would do without being there, seeing there stability, and checking the eyes. However, 3 jack and cokes over 4 hours WILL NOT put someone as high as a .075.

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            • #21
              I'd at least put him in for a re evaluation. In NJ, we can request that the driver be retested via MVC (DMV). In most cases, at least in my area, the would make it a reckless driving with 30 days loss of license.
              Being a good street cop is like coming to work in a wet suit and peeing in your pants. It's a nice warm feeling, but you're the only one who knows anything has happened.

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              • #22
                The seizures will be a legitimate defense, even for a DWAI charge...especially since no officer can say they actually saw the guy driving. All the officer can say is he found the guy waling around his crashed car when he got there.
                I'm sure it varies from state to state, but I don't have to see one driving. I just need to have PC that he/she was driving or in physical control of a motor vehicle and impaired. I was involved in an arrest at the airport terminal. The impaired lady asked for medical attention (we do police/fire/EMS) down in the Arrivals/baggage area. During our contact with her, it was obvious she was hammered (alcohol & valium). She admitted to driving and her parking ticket that she received when she entered the garage indicated she pulled in 14 minutes prior to our contact with her. From video surveillance I was able to establish a time line and we popped her for DUI 5th offense (E felony), driving while declared habitual traffic offender (E felony), and implied consent violation.

                Well, if you do cite him, the DUI gets thrown out b/c you have a low BAC, a bartender that confirms 3 drinks in four hours (very minimal), no observations on driving, no FST's, no witnesses etc...not to mention the history of seizures.

                Any marginal defense attorney will rip that case apart.
                Not likely. Yes it's a case that many ADAs would not want to deal with, especially since the guy's in a coma and has a Hx of seizures, but the only thing the bartender can confirm is the alcohol. The other meds could have certainly played a role and there is strong evidence (blood) that they were in his system at the time of the crash along with the BAC of .075%.

                Could I have charged? absolutely. Would I have charged? Not sure on that one, but ultimately since it's after the fact of the crash, it's up to the ADA and/or Commissioner signing the affidavit, not me.

                This was our guy last night. He passed everything but for his HGN.
                If this went to court I would go on the stand and explain what the divided attention tests were and that he was capable of doing them perfectly yet I still arrested him... Park the car and a lecture is all I will give him.

                I had a guy tell me he had ten beers one time. I am thinking I have a gimme. He passes everything but the HGN. If a person passes their SFSTs I sometimes still put them on the box just to check if my HGN reading is close to the box, which is normally is. Anyway, this guy blew a .10%. I am not bringing him in because I know he will blow over if he can pass my tests...
                Graypatriot...so by your statements, if you have someone that fairs well on the psychomotor tests (WAT & OLS), you have made up your mind not to arrest, even though you know they will blow over the statutory limit by HGN? That's bothersome.

                Your decision to arrest should not be based solely on the performance of the SFSTs. By your posts, it sounds to me that you are aware of the DUI Detection phases set forth by NHTSA (Vehicle in motion, personal contact phase, pre-arrest screening/SFSTs). Your decision to hook them up should be on the totality of circumstances based on all three phases, not just on the results of the WAT & OLS. I have had several hispanics do awesome on the WAT & OLS, but other evidence (including the HGN) indicated a ton of impairment. If we had officers make their decision to arrest solely on the WAT & OLS, we would be cutting quite a few people loose that has no business on the road (or out of jail). We probably have it harder in TN because currently officers cannot testify to the HGN in trial court (has to be an expert witness).

                If these people you are referring to were all over the road, would you still cut them loose if they did perfect on the WAT & OLS?
                Last edited by SgtScott31; 10-06-2009, 07:24 PM.
                I'm 10-8 like a shark in a sea of crime..

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                • #23
                  This is what happened, I got with the prosecutor, and he decided to run it in front of the grand jury they returned with an inditement for DUI 4th (sorry forgot to mention he had 3 priors), speeding, failure to operate in a careful manor, and reckless operation. The DUI was for alcohol and prescription drugs. The case made it to court but the judge tossed it ruling that the defendant was not present to defend himself, there for he would not continue. In the report I listed prescription drugs, mixed with alcohol as a contributing factor, along with speed, also listed were medical documents as to the subject’s suitability to operate a vehicle in the first place. A civil suit was filed, the family was seeking to have the insurance company, pay for medical expenses, They also listed the auto maker as a defendant, as the airbag did not go off, a fact I did not realize until it was brought up in court. The jury in the civil suit did not rule in favor of the family, as they felt that his actions alone were what lead to the accident. The charges to me were a formality, it did not matter much as someone in a coma is not going to do any jail time, hell they aren’t doing anything so it served no purpose, I was looking more from a civil suit point of view as I had a feeling that the family was going to get the law firm of Dewy Cheatem and How it just did not seem right to me at least that someone or in this case family would profit off of negelance on their own part.
                  It could be that the purpose of your life is only to serve as a warning to others.

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                  • #24
                    Originally posted by SgtScott31 View Post

                    Graypatriot...so by your statements, if you have someone that fairs well on the psychomotor tests (WAT & OLS), you have made up your mind not to arrest, even though you know they will blow over the statutory limit by HGN? That's bothersome.

                    Your decision to arrest should not be based solely on the performance of the SFSTs. By your posts, it sounds to me that you are aware of the DUI Detection phases set forth by NHTSA (Vehicle in motion, personal contact phase, pre-arrest screening/SFSTs). Your decision to hook them up should be on the totality of circumstances based on all three phases, not just on the results of the WAT & OLS.
                    If these people you are referring to were all over the road, would you still cut them loose if they did perfect on the WAT & OLS?
                    You are assuming a whole lot...

                    For the sake of brevity I didn't include the entire stop and I didn't clarify every point. Of course all phases are taken into consideration. The incidents I mentioned were not moving violations but equipment violations.

                    The tests I give are HGN, W+T, OLS, Romberg Balance, and Finger to nose. I also have them recite the alphabet without singing from I-U and have them count from 74-59.

                    I have either had the most DWIs in my Zone and Troop or have been in the top 5 for almost five yrs now. I have been to a lot of DWI trials, Grand Jury, Huntley Hearings (Suppression), and DMV hearings. I have also had DWI arrests in 4 different counties and I know how the different DA's offices work.

                    If I made a traffic stop for a head light out and ran him through all my tests and he passes all of them but for HGN. Please explain to me how I can go in front of a defense attorney and say that the operator of that vehicle was too impaired to drive? Tell me how and why if he passed all the tests, but for HGN, did I take him into custody and have him submit to a chemical test?

                    Now, this isn't a controlled environment (heated classroom) where these operators performed these tests, which you assumed "fairs well". You and I both know I could take a random person off the street and they could show two clues on the W+T in a non threatening heated classroom, but these clowns performed them as prescribed.

                    Lastly, I have natural resting nystagmus in my left eye and my daughter has rare eye disorder where she has a lack of smooth pursuit which wasn't corrected until she had visual therapy done.

                    If there is one thing I know it is DWI law and detection and I am relentless in enforcing it, but I will not jeopardize my integrity to get a number...
                    Last edited by GrayPatriot; 10-07-2009, 12:31 AM.

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                    • #25
                      If I made a traffic stop for a head light out and ran him through all my tests and he passes all of them but for HGN. Please explain to me how I can go in front of a defense attorney and say that the operator of that vehicle was too impaired to drive?
                      I'm sure there's other factors at play (smell of alcoholic beverage, etc), but you could probably tell him that 88% of those who exhibited 4 or more clues on the HGN had a BAC over .08%. I didn't mean to p*ss you off, I just wanted to make sure you were not cutting loose people who were sh**faced just because they did well on the WAT & OLS.
                      I'm 10-8 like a shark in a sea of crime..

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                      • #26
                        Yeah, there is enough there. I'ld get a warrant now, serve it when he can be served, and subpeona the hospital records and let it go through the system.

                        He has a history which he ignored by consuming the drinks knowing he was going to be driving, no need for my sympathy now.

                        If he doesn't wake up in a year or so, then maybe I go ask CA that warrant be dismissed or destroyed.

                        If I made a traffic stop for a head light out and ran him through all my tests and he passes all of them but for HGN. Please explain to me how I can go in front of a defense attorney and say that the operator of that vehicle was too impaired to drive?
                        I just observe and make note of my observations, the old way, the way I learned. I don't do SFSTs or HGN.
                        Last edited by t150vsuptpr; 10-07-2009, 02:08 PM.
                        "That's right man, we've got mills here that'll blow that heap of your's right off the road."

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                        >>>>> A Time for Choosing <<<<<

                        Retired @ 31yr 2mo as of 0000 hrs. 01-01-10. Yeah, all in all, it was good.

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                        • #27
                          Originally posted by SgtScott31 View Post
                          I'm sure there's other factors at play (smell of alcoholic beverage, etc), but you could probably tell him that 88% of those who exhibited 4 or more clues on the HGN had a BAC over .08%. I didn't mean to p*ss you off, I just wanted to make sure you were not cutting loose people who were sh**faced just because they did well on the WAT & OLS.
                          I didn't clarify in my original post but I am not going to post the entire stop including my notes to make a point.

                          I don't have my DWI manual in front of me but validation test were done in the 90's in San Diego and later later in Colorado and Florida and they determined the HGN is 77% and 81%, and ? effective when carried out by a trained officer (numbers are off as I am going by memory), but I agree 88% is more accurate, but it is not 100%.

                          Did I take exception, yes I did. I have been grilled for hours on the stand with, in my opinion, and air tight DWI arrest. I know my DA would not prosecute a case where the defendant passed my battery of tests and in this rare occasion I agree with them...

                          One last thing, it is not illegal to have consumed alcohol and operator a motor vehicle it is illegal to operator a motor vehicle in an intoxicated manner. An odor of alcoholic beverage does not indicate guilt it just helps build our case.

                          For the record I don't drink either...

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                          • #28
                            Originally posted by GrayPatriot View Post
                            So you get a guy with 4-6 clues on HGN but he passes W+T, OLS, and any other test you choose to give him. You don't feel comfortable letting him drive because you know by his eyes he is up there and he either tells you he has had a significant amount of alcohol, so you put him on the Alcosensor and he blows a .11%. What do you do?
                            That's why we don't use PBTs.

                            As for the OP, what medications was he on? A lot of anti-seizure medications are also anti-depressants. The combination of alcohol and anti-depressants could definitely impair him to the point of wrecking out. Also, if he was up and walking around immediately after the crash he probably did not have a seizure as he would have been in a postictal state after the seizure.

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                            • #29
                              Originally posted by GrayPatriot View Post
                              I didn't clarify in my original post but I am not going to post the entire stop including my notes to make a point.

                              I don't have my DWI manual in front of me but validation test were done in the 90's in San Diego and later later in Colorado and Florida and they determined the HGN is 77% and 81%, and ? effective when carried out by a trained officer (numbers are off as I am going by memory), but I agree 88% is more accurate, but it is not 100%.

                              Did I take exception, yes I did. I have been grilled for hours on the stand with, in my opinion, and air tight DWI arrest. I know my DA would not prosecute a case where the defendant passed my battery of tests and in this rare occasion I agree with them...

                              One last thing, it is not illegal to have consumed alcohol and operator a motor vehicle it is illegal to operator a motor vehicle in an intoxicated manner. An odor of alcoholic beverage does not indicate guilt it just helps build our case.

                              For the record I don't drink either...
                              88% HGN, 79% WAT, 83% OLS on the .08% BAC. I believe it's 90% for 4+ clues on HGN and 2+ clues on WAT combined.

                              p.s. I'm aware that odor of an alcoholic beverage can be on a person who is not impaired, but I find more of those who are impaired with the odor than those who are not, as I'm sure you would agree.
                              I'm 10-8 like a shark in a sea of crime..

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                              • #30
                                Originally posted by usmcrob View Post
                                That's why we don't use PBTs.

                                As for the OP, what medications was he on? A lot of anti-seizure medications are also anti-depressants. The combination of alcohol and anti-depressants could definitely impair him to the point of wrecking out. Also, if he was up and walking around immediately after the crash he probably did not have a seizure as he would have been in a postictal state after the seizure.
                                This happend a few years ago, so off the top of my head I could not tell you. And my thinking was some what in line with what you are saying.
                                It could be that the purpose of your life is only to serve as a warning to others.

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