Legality and ethics of this?

[Long Relief]

I threw this out there in a state forum but thought I would post it here for more eyes to see it and responses. A guy I know casually at best said he was pulled over by a Trooper. I have no information on the reason for the stop but at any rate he had been drinking and was put through the fields followed by a PBT. The PBT showed him a tick under .08.

The Trooper then had him sit in the back of the squad for a good 20 minutes before administering the PBT again. The guy blew slightly less and was let go.

As he recounted the story he had no idea what was going on. For all he knew, every cop gives you the PBT and then waits 20 minutes and gives you another one.

Maybe I am a cynic but I strongly suspect that the Trooper was hoping his BAC was going up instead of down and would have arrested him had his second breath test came back over .08. IF that was the case, I consider that dirty pool. I can think of no other reason for making him sit in the squad for 20 plus minutes.

[yngcp89]

Or the opposite is true. Since he was so close on the first blow, he may have been waiting to make sure he was safe to drive/over the limit before making the decision on arresting your friend, hauling him to jail, going through all the fancy footwork that DWI's require, only to find out he was below the legal limit. Which would have cost your friend time and money. The PBT is not reason to arrest, nor is it permissible in court, at least down here. If you fail the tests, you can be arrested and booked in, no further testing required. Most officers I know use the PBT only to rule out an arrest or cause for intoxication. I would say that your friend should be thankful the trooper had one and let him go. I don't carry or use a PBT. If you fail the tests, you go to jail. The real problem with this story is that your friend was close enough to the line to be contacted and tested for driving while intoxicated.

[Long Relief]

Or the opposite is true. Since he was so close on the first blow, he may have been waiting to make sure he was safe to drive/over the limit before making the decision on arresting your friend, hauling him to jail, going through all the fancy footwork that DWI's require, only to find out he was below the legal limit. Which would have cost your friend time and money. The PBT is not reason to arrest, nor is it permissible in court, at least down here. If you fail the tests, you can be arrested and booked in, no further testing required. Most officers I know use the PBT only to rule out an arrest or cause for intoxication. I would say that your friend should be thankful the trooper had one and let him go. I don't carry or use a PBT. If you fail the tests, you go to jail. The real problem with this story is that your friend was close enough to the line to be contacted and tested for driving while intoxicated.

Well, you are assuming he was contacted for driving conduct (which he may have been). Where I am from participating in the field sobriety tests is optional as is taking the PBT. Every Trooper here will have a PBT and be intox certified. Most suburban cops will have a PBT as well (but may lack the intox cert).

Up here the fields and PBT go towards establishing PC and are optional. However, giving blood, breath, or urine is not optional and is covered under implied consent. Those are the tests that prove alcohol intoxification. Are you saying where you are from the SFST's are mandatory and that you do not get blood, breath or urine to prove intoxification?

In our two big cities, cops as a rule don't do many DWI's as they find other ways to mitigate the issue and get back to backing their partners on higher priority stuff.

My point was that if he crossed the .08 mark while sitting in a squad and not driving he should not be arrested, but rather driven home if possible or put in a cab or taken to a gas station to call for a ride.

[yngcp89]

We do not have to get blood, breath, urine, or SFST's. If you refuse to cooperate, we are able to arrest based on observation alone. And I know some officers who do. PBT's aren't permissible in court here. They can only be used as a supporting factor, similar to any other test that isn't one of the three SFST's, such as counting backwards.

There is nothing in your story to indicate that he would have been arrested if he had blown higher. Again, a PBT is not definitive, hence the reason it isn't allowed in court. There are a dozen different possibilities for what the trooper was doing. There is so much left out of the story, such as how your friend performed during the SFST's. To say that you have a feeling that the trooper was hoping the reading went up is completely biased and unfounded. The trooper could have been hoping the reading went down, so that he didn't have to make the arrest. But here, if there is any chance that you might be intoxicated, very few officers are willing to risk their careers by allowing you to go, especially on a device as limited as the PBT. Which is also why some agencies are going to mandatory blood draws. Even the intox isn't perfect. And if he had crossed the line to intoxication while in custody, the trooper couldn't very well allow him to drive away. I certainly wouldn't want to be the trooper that allowed someone who was intoxicated to drive away from my traffic stop, wreck out, and hurt or kill someone. And I've picked up enough bodies from drunk drivers that I wouldn't want to live with my conscience if that were the case.

Again, the issue is that your friend was drinking, then was contacted while operating a motor vehicle and did something to arouse the troopers suspicion that he was operating said vehicle while intoxicated. Otherwise, he wouldn't have been tested with SFST's. If you fail the SFST's here, even if the PBT gives a reading of under .08, I can arrest you. And if you fail them badly enough, I will arrest you. The PBT is mechanical, and like all technology can fail. It also doesn't take into account drugs. It is a useful tool, but not definitive by any stretch.

[Long Relief]

Double tap

[Long Relief]

We do not have to get blood, breath, urine, or SFST's. If you refuse to cooperate, we are able to arrest based on observation alone. And I know some officers who do. PBT's aren't permissible in court here. They can only be used as a supporting factor, similar to any other test that isn't one of the three SFST's, such as counting backwards.

There is nothing in your story to indicate that he would have been arrested if he had blown higher. Again, a PBT is not definitive, hence the reason it isn't allowed in court. There are a dozen different possibilities for what the trooper was doing. There is so much left out of the story, such as how your friend performed during the SFST's. To say that you have a feeling that the trooper was hoping the reading went up is completely biased and unfounded. The trooper could have been hoping the reading went down, so that he didn't have to make the arrest. But here, if there is any chance that you might be intoxicated, very few officers are willing to risk their careers by allowing you to go, especially on a device as limited as the PBT. Which is also why some agencies are going to mandatory blood draws. Even the intox isn't perfect. And if he had crossed the line to intoxication while in custody, the trooper couldn't very well allow him to drive away. I certainly wouldn't want to be the trooper that allowed someone who was intoxicated to drive away from my traffic stop, wreck out, and hurt or kill someone. And I've picked up enough bodies from drunk drivers that I wouldn't want to live with my conscience if that were the case.

Again, the issue is that your friend was drinking, then was contacted while operating a motor vehicle and did something to arouse the troopers suspicion that he was operating said vehicle while intoxicated. Otherwise, he wouldn't have been tested with SFST's. If you fail the SFST's here, even if the PBT gives a reading of under .08, I can arrest you. And if you fail them badly enough, I will arrest you. The PBT is mechanical, and like all technology can fail. It also doesn't take into account drugs. It is a useful tool, but not definitive by any stretch.

Here the PBT is not admissible in court either. But like I said, none of the SFST's are mandatory here. Are you saying that in NC they are?

Here you can arrest the person on without them performing any SFST's or the PBT, but in order to actually prove your case you need to either get blood, breath, or urine OR a test refusal (unless it is an injury accident and then they can't refuse) The test refusal is a seperate charge and carries with it it's own penalties in addition to the DWI.

Are you saying that in NC you can arrest someone without them performing any tests and then just book them on DWI without any proof of their intoxification?

You are right that my friend drinking and driving and being contacted is "an" issue. But the issue that I was asking about was the ethics of arresting someone who was not driving over the legal limit but merely reached the legal limit while sitting in the back of the patrol car.

Based on the State Patrol's rightful zeal to arrest drunks, I admit I am cynically guessing that he would have arrested him had he reached .08 on the second blow. I freely admit that I could be wrong.

Also, I know it would have been legal as my state does allow a cop to arrest you if are .08 within two hours of driving. But then you get into the spirit of the law and the letter of it. That law was crafted I believe to combat the drunk that gets home before the cops get there and claims that he downed a fifth of bourbon in his own house.

[Long Relief]

Here is the blurb in our statutes...(5) the person's alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more;

But the issue with that is that you and your wife could go out to dinner and have waters and get home at 7pm at a .00 BAC and then start pounding Shiner Bocks on your front porch and be at a .11 at 8:50pm and get arrested for DWI even though you were stone cold sober behind the wheel. What sense does that make?

[tanksoldier]

Maybe I am a cynic but I strongly suspect that the Trooper was hoping his BAC was going up instead of down and would have arrested him had his second breath test came back over .08.

Here PBT results aren't admissible in court. At best a PBT can be used to associate the results of voluntary roadside maneuvers with the presence of alcohol in the subject's system.

IF that was the case, I consider that dirty pool. I can think of no other reason for making him sit in the squad for 20 plus minutes

Investigatory detention. The trooper can detain as long as is reasonable for him to complete his investigation. Wanting to see if his BAC is going up or down before putting him back out on the road and endangering lives is a perfectly legitimate reason to detain IMO.

You're talking about people potentially dying. Your friend can wait 20 mins to potentially prevent that.

The guy blew slightly less and was let go.

The trooper had a reason to pull your friend over, he saw something that made him suspect DUI. Here even the slightest impairment is a crime: DUIA/ DUID. As long as there is SOME alcohol or drugs in your system and the officer can articulate the slight impairment (usually whatever caused them to pull you over in the first place) you can and will be arrested, and taken in for a mandatory breath or blood test.

So, here, the BAC would only confirm the results of the roadside maneuvers and your friend would have been arrested anyway regardless of it's result once it was shown that there was SOME alcohol in his system. He should count himself lucky.

But the issue with that is that you and your wife could go out to dinner and have waters and get home at 7pm at a .00 BAC and then start pounding Shiner Bocks on your front porch and be at a .11 at 8:50pm and get arrested for DWI even though you were stone cold sober behind the wheel.

No, you couldn't. The state would have to show that you hadn't consumed alcohol between driving and testing, which they couldn't do unless there was an officer physically present, ie: you were in custody or detained. The two hours is so they have time to get a suspected DUI driver from the site of arrest/ detention to an INTOX machine or blood draw.

[BNWS]

Here is the blurb in our statutes...(5) the person's alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more;

But the issue with that is that you and your wife could go out to dinner and have waters and get home at 7pm at a .00 BAC and then start pounding Shiner Bocks on your front porch and be at a .11 at 8:50pm and get arrested for DWI even though you were stone cold sober behind the wheel. What sense does that make?

Why would a cop stop you on your porch for driving? If you're that worried about being accused of being drunk after an accident stay on the scene until an officer arrives. If one doesn't show up, drive to a police station and make a report. If they wont help you at the station go home and wait 2 hours before drinking shiner bocks. There are plenty of drunk drivers, the police don't have to manufacture a case.

[1111]

Here, the PBT is not admissible in court unless the defense brings it in. So, if his BAC went up on the second blow, the defense would bring up the fact that while he was driving he was under .08, and went above while sitting in the patrol car not driving. But GA law does not say you are or are not impaired if you are between .05 and .079, so if he was in that range he could still be charged with DUI less safe.

[SmallCityCop]

SFSTs are given if officers suspect someone of driving intoxicated or under the influence. They are Standardized so they are the same everywhere, and if you fail those tests, you get arrested, at least here. We don't have to do PBTs, and only a handful of our officers here carry them. We do the Breathalyzer at the PD which will have your results.

[Long Relief]

Here things are a little different then. It has been my experience in talking to cops and in getting pulled over myself is that more often than not you get pulled over for any PC (air freshener dangling from mirror, tint, cracked windshield, speeding, loud music, obstructed plate, white light to the rear, headlight out) and then when the officer makes contact with you he smells the booze and turns it into a DWI investigation. Of course he is pulling over people on stuff that he hardly ever tickets for just for the chance to see if they are drunk.

I believe this is how cops get DWI arrests far more than just waiting around for the guy driving 30 under or 30 over and using three lanes to do it.

It makes sense. The more times you cast your line into the water (more traffic stops) the more fish (drunks) you are likely to catch.

[Iowa #1603]

Legally and ethically the trooper was correct in his actions.

Are you saying that in NC you can arrest someone without them performing any tests and then just book them on DWI without any proof of their intoxification?
.

I don't know about NC---------but in Iowa it is not at all unusual for a DUI driver to refuse ALL TESTING......starting with SFST and ending with Blood/Breath/Urine. We get convictions all the time on these drivers.

In those cases the EVIDENCE of intoxication is in the observations of the drivers actions and the articulation of those observations in the arrest reports. Usually backed up by a video of the arrest, transport and investigation at the jail (where our certified machines are located ) Videos convict more DUI drivers than breath tests

[Long Relief]

Legally and ethically the trooper was correct in his actions.


I don't know about NC---------but in Iowa it is not at all unusual for a DUI driver to refuse ALL TESTING......starting with SFST and ending with Blood/Breath/Urine. We get convictions all the time on these drivers.

In those cases the EVIDENCE of intoxication is in the observations of the drivers actions and the articulation of those observations in the arrest reports. Usually backed up by a video of the arrest, transport and investigation at the jail (where our certified machines are located ) Videos convict more DUI drivers than breath tests

Refusals seem to be fairly common here, especially amongst the really drunk. I just think if you are going to get a DWI for driving at over .08 the cops should have to show that you were DRIVING at over an .08 and not merely sitting in the backseat of a patrol car.

[SmallCityCop]

Correct me if I'm wrong, but here in MD, if one refuses SFSTs, we can still arrest. I've been in the school for awhile and havent made a DUI arrest in a few years.