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  • #16
    What your suggesting is most unlikely. Any decent DUI investigator or (and maybe even more so) DUI attorney knows of the "rising alcohol" defense. To PBT somebody at .079 then .081 20 minutes later would clearly be a rising alcohol problem....
    Today's Quote:

    "The difference between stupidity and genius is that genius has its limits."
    Albert Einstein

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    • #17
      Ultimately, as has been stated here, what the trooper did was both legally and ethically correct. Your "friend" is lucky that he didn't go to jail for driving under the influence. Whether or not you like the statute, what the trooper did, or anything else is irrelevant. The entire issue at this point is that your friend was driving a motor vehicle after consuming alcohol, was contacted, raised suspicion, and was tested. He should learn from the experience, rather than try it a second time and go to jail.

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      • #18
        In many states, you can still get a dui if you blow under .08. A lot of people don't realize that. People that rarely ever or never drink become impaired at a lower rate, and while the forensic evidence (the intoxilyzer) may show the person under the limit, the officer could effectively use other evidence to prove the driver was impaired. Its harder, but possible. If he pulled the guy over for a traffic violation, and he blew .075, he could effectively articulate that the driver was impaired as evident by the driving, and that his BAC was higher prior to the time it took to pull over, interview, and finally administer the PBA. It's a bit harder if they are weaving all over and then blow a .03, but at .070 it's pretty easy.

        So he should be sending the trooper a Christmas Card this year, because the trooper really did him a favor.

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        • #19
          Originally posted by Shush View Post
          It's a bit harder if they are weaving all over and then blow a .03, but at .070 it's pretty easy.
          That's when we call in a DRE----------------or request a Urine sample..............................
          Since some people need to be told by notes in crayon .......Don't PM me with without prior permission. If you can't discuss the situation in the open forum ----it must not be that important

          My new word for the day is FOCUS, when someone irritates you tell them to FOCUS

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          • #20
            Originally posted by Long Relief View Post
            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?
            That makes no f-ing sense at all.
            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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            • #21
              OP, regardless of what the PBT said, .08 is simply the presumptive BAC. Even if the next PBT blow had been less than or equal to the first, he still can be charged with DUI.

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              • #22
                Originally posted by Long Relief View Post
                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.
                If this is true, it's very disturbing. This is entirely anecdotal and based only on personal experience, but DWI is a factor in over half of the serious collisions I work. We're talking about people driving the wrong way on the interstate, people driving on the sidewalk, people rear ending someone so hard at a red light that it kills the other driver.

                I don't know why the Trooper did what you said he did. You clearly have your own opinion about what happened based on what your friend told you. I don't know your friend, and I don't know the Trooper. For all I know, your friend is a liar. Also for all I know the Trooper is a lazy cop who didn't want to make an arrest OR he was on the fence about whether or not your friend was drunk and he actually gave him a break.

                The LEGALITY of this scenario would have to be determined in court. The ETHICS depends largely on the officer's intent and on the true facts of the incident (neither of which we'll ever know).

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                • #23
                  Your friend should go to jail just for drinking Shiner Bocks.
                  September 11, 2001 - All gave some, some gave all. Never forget -- Never forgive.......... RIP Brothers and Sisters.

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                  • #24
                    A lot of other people have hit on similar ideas. When I was a young officer, I made a lot of DUI arrests. One day an older veteran back me up on a stop and afterwards talked with me about a couple of things. Why was I so concerned with what the PBT/RBT said because it was inadmissible. (You could receive a ticket for failure to take one.) We discussed it for a little bit and then he shared with me some advice.

                    All to often we get caught up in the BAC numbers. Who cares if it is a .378 or a .78? What we need to do is show that the alcohol is affecting the driver. This can be the car weaving in its lane, stopping short of stop signs, driving exceedingly slow, the drivers inability to follow simple commands like driver's license, registration and proof of insurance and they hand you a take out menu.

                    All along, I had been including those type of things but after I began focusing on alcohol causing a driving impairment and not just on a .08, my arrests became much better.

                    In your friend's situation thank his lucky stars that the Trooper didn't arrest him and quit thinking that it was some type of situation to get him in trouble instead of a fortunate break.

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                    • #25
                      Originally posted by Long Relief View Post
                      Refusals seem to be fairly common here, especially amongst the really drunk.
                      The problem is you can be under the influence/ impaired _BELOW_ .08 . .08 is just the "per se" limit, at least in Colorado.

                      There are all kinds of evidence that someone is under the influence of alcohol or drugs. How they were driving before being pulled over. Their appearance, their eyes, their speech, their motor skills, their smell. People refuse to be tested all the time. Refusing a test isn't a get-out-of-jail-free card. If the officer didn't have pretty good evidence you were impaired he wouldn't have pulled you over in the first place. The tests just confirm what he already knows.

                      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.
                      Again, the officer was probably just making sure your "friend" was safe to let go. If he pulls your friend over for suspected DUI, lets them go and THEN they get in an accident with a BAC over .08 that's hard to explain to a lawsuit jury.

                      Frankly I wouldn't have let your friend go at all. If I had PC to pull them over AND could show that PC was associated with alcohol or drugs I'd have booked them in to jail. If you're impaired even in the slightest I'm getting you off the street. The DA can decide what to do with you later, but you aren't killing anyone on my watch.
                      Last edited by tanksoldier; 08-25-2014, 08:39 PM.
                      "I am a Soldier. I fight where I'm told and I win where I fight." -- GEN George S. Patton, Jr.

                      "With a brother on my left and a sister on my right, we face…. We face what no one should face. We face, so no one else would face. We are in the face of Death." -- Holli Peet

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                      • #26
                        Originally posted by Long Relief View Post
                        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.





                        The REAL question is, are YOU as damned ignorant as you seem to want us to believe you are? Just in case you missed there Junior, your "question" has been answered honestly, straightforwardly, and in good faith. That's all you're entitled to, that's all you get.

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                        • #27
                          Refusals seem to be fairly common here, especially amongst the really drunk.
                          Forgot to mention that refusal of breath or blood test results in administrative suspension of the DL for a year, in addition to any criminal charges resulting from the incident.
                          "I am a Soldier. I fight where I'm told and I win where I fight." -- GEN George S. Patton, Jr.

                          "With a brother on my left and a sister on my right, we face…. We face what no one should face. We face, so no one else would face. We are in the face of Death." -- Holli Peet

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                          • #28
                            Originally posted by tanksoldier View Post
                            Forgot to mention that refusal of breath or blood test results in administrative suspension of the DL for a year, in addition to any criminal charges resulting from the incident.
                            That is pretty much universal under the Implied Consent Law
                            Since some people need to be told by notes in crayon .......Don't PM me with without prior permission. If you can't discuss the situation in the open forum ----it must not be that important

                            My new word for the day is FOCUS, when someone irritates you tell them to FOCUS

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                            • #29
                              where are you from, OP??
                              "I don't go on "I'maworthlesscumdumpster.com" and post negative **** about cum dumpsters."
                              The Tick

                              "Are you referring to the secret headquarters of a fictional crime fighter or penal complex slang for a-$$hole, anus or rectum?"
                              sanitizer

                              "and we all know you are a poser and a p*ssy.... "
                              Bearcat357 to Dinner Portion/buck8/long relief

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                              • #30
                                With a blow on the line it it is taught to us to give 15 minutes for any residual mouth alcohol to dissipate and then check again. Sounds like that is what was going on.

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