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How strict are you in charging someone with an OWI/DUI

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  • How strict are you in charging someone with an OWI/DUI

    My brother-in-law (BIL) is a former state trooper and I have had the opportunity to ride along with him on a number of occasions. He has since transferred off the road and into a different department within the state's department of public safety.

    On my last ride along with him towards the end of his shift he was working the interstate that evening. He stopped a SUV for meandering within their lane and crossing the fog line a couple of times. Possible OWI.

    My BIL stops the vehicle he gets out and makes contact with the driver and through his normal routine asks the driver to have a seat with him in his patrol car and I hop out out and jump in the back seat.

    Knowing my BIL's routine I get is PBT kit out of his backseat storage and on the dash to warm up before they get into the car. As he is questioning the driver where he was going, what they had been doing that night so on and so on running the driver for any active warrants he is getting the PBT ready to go (and even I can get a whiff of alcohol coming from the driver sitting in front of me).

    So after the driver's check comes back clear my BIL asks the driver if he had been drinking tonight. The driver admits to having a couple of beers and that his last one was about an hour ago. So of course the driver is asked to blow on the PBT and when he is finished I was waiting for the cuffs to come out and go on the driver. However my BIL sat there in his seat with the PBT close to his chest and continued to talk to the driver. This went on for about 10 minutes.

    Finally my BIL told the driver he was right on the edge of the .08 BAC for the state to be charge with OWI. He had actually went over .08 but it took most of the 10 minutes of taking to the driver for the PBT to get there. So the driver was retested and he blew under .08 (I think it was .065) and my brother in law told the driver that he was free to go however he wanted him to pull off at the rest stop 5 miles down the interstate and wait there for 30 minutes and to get something to eat there.

    Talking with my BIL afterwards he said that he couldn’t arrest him that even though he blew BARELY over the limit on the PBT by the time we took the 20 minute drive to a county office to process the driver and give him an office breath test (or blood test) it would have under the legal limit and there fore nothing to be charged on, just a complete waste of time.

    Just curious to know how often has a situation like this come up in everyone’s traffic stops. Maybe not for just an OWI but where you felt like you know something was wrong but you couldn’t legally make the arrest.

    Thanks.
    Last edited by Jaguar57; 04-20-2007, 02:31 PM.

  • #2
    Your BIL did a smart thing though. Since he prolonged the amount of time the driver would be in the cruiser, he allowed the driver to "sober up". If he's right on the limit, .08 in IL, he really could have been strict and gotten him. I, personally, have no tolerance for DUI/OWI. My brother has a history of that, and every time he's arrested, I ask him if he killed anyone and if he says no, I tell him stop being a moron and hang up. If I won't cut my brother slack, I sure won't cut a stranger slack. They know the law and know there is no place for being intoxicated and driving.

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    • #3
      Things must be done differently in Iowa, because we would never give a PBT as the first test in the battery. Further, 10 minutes on a normal PBT would be the reset time, not the build up time following a sample.

      To answer the question, it depends. In the case as presented, it would be tough to arrest a borderline OWI because there's little other evidence to work with. Now if I had conducted SFST's, had good video showing bad driving, and a PBT of .08, then its game on for sure. Even if the evidentiary test comes back below a .08, I've got plenty of evidence to demonstrate impairment at the time of the stop.
      Originally posted by kontemplerande
      Without Germany, you would not have won World War 2.

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      • #4
        Originally posted by SRT936
        Things must be done differently in Iowa, because we would never give a PBT as the first test in the battery. Further, 10 minutes on a normal PBT would be the reset time, not the build up time following a sample.
        I wasnt sure what he was really during that time after he administered the first PBT. I really dont know how the device worked. I remember him talking about how it takes it some time to register that blood alcohol level and that the drivers started out quick and about .04 to .05 it slowed and then from .06 to .08 it was slower yet. When I have ridden with him on other stops its like blow blow blow blow *machine clicks* he looks at it and says well you are under arrest.

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        • #5
          Charging with DUI

          Not questioning your Brother in Law"s judgement. I wasn't there. Alabama DPS policy on DUI is Zero Tolerance. If you were to blow .08 on the Trooper's Intoxilizer on the FST, you're probably going to make the trip to jail.

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          • #6
            16,694 fatal crashes across the U.S. in 2004 were alcohol-related. In other words, someone died every 31 minutes because of an alcohol-related crash. The days of "giving people breaks" are over in my opinion. Multiple offenders are getting junk sentencing in courts and everyone is refusing to submit to chemical tests because of vulture attorneys.

            http://www-nrd.nhtsa.dot.gov/pdf/nrd...004/809905.pdf

            If the vehicle was weaving enough to catch my attention I would have probably arrested them. We don't use PBT's in my area and I really don't need one.

            I just finished a NHTSA DUI Instructor School today and pretty much have zero-tolerance for DUI offenders.
            I'm 10-8 like a shark in a sea of crime..

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            • #7
              I've arrested people for being just barely over the limit. I told them if they were under when they blew on the intox back at the station I'd cite and release them which I did. I also told them what would happen if they blew over.

              I've only let one guy go on his own because he blew just over on the road but when we got back to the station he was well under .08. We waited for another hour or so before I took him to pick up his bike which I had towed. Everyone else who blew under got to call a friend to pick them up. If they are over by .001 when they blow, they go to jail.

              If they were barely under when they blew on the road, I'd have them call someone to give them a ride. People are very happy I let them do this because they understand they can go to jail for being impaired to the slightest degree.

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              • #8
                Here in Florida PDT is only used on underage for the .02 law. Also, if you arrest based on the FSTs, then they blow under a .08, the arrest still holds (based on FST) as long as they blow above a .05. Of course rather it holds up in court or not it depends. Obviously if for some reason you aren't able to run FSTs and they are under a .08 they can't be charged with DUI.

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                • #9
                  Those that show good indicators of impairment, but display low BAC's could very well have drugs in their system.

                  Also remember, if you stop someone and put them through the battery of SFST's and they blow .06 or .07, how do you know their BAC isn't climbing??
                  I'm 10-8 like a shark in a sea of crime..

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                  • #10
                    Depends when he stopped drinking...his BAC could be on the rise. If we had to stop them for something and the officer thinks they are impaired, I expect an officer to make the arrest regardless of the BAC level, especially if it is a .05 or higher. Remember, .08 is the per se level, so some people will be impaired at a lower level. How did the guy do on the SFST? Also, how do you know the guy wasn't on drugs of some kind as well as the booze? I'm wasn't there, so I'm not saying your BIL did anything wrong and I might have done the same thing, but there is a lot more to consider than the BAC result on a PBT.

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                    • #11
                      Originally posted by just joe
                      . How did the guy do on the SFST? Also, how do you know the guy wasn't on drugs of some kind as well as the booze? I'm wasn't there, so I'm not saying your BIL did anything wrong and I might have done the same thing, but there is a lot more to consider than the BAC result on a PBT.
                      Very true. My judgement is based on the totality of the circumstances. A PBT is nice to have but my decision is made before a PBT anyways

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                      • #12
                        In Missouri I don't have to hit the magic number of .08. If they are at or over the legal limit they are presumed intoxicated. If they are driving bad enough for me to pull over, I usually cite/arrest for DWI if .05 or higher. If the BAC is below .08 I just make sure I do a very good job of documenting EVERYTHING to show they were "unable to safely operate a motor vehicle".
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                        • #13
                          Honestly, having him sit in the passenger seat of the patrol car is one of the most bizarre things I have ever heard.


                          EDIT: Then again, maybe that is common place in the snow. Don't have to worry about that in Sunny California. Hope he at least pats them down first.
                          Last edited by kcr; 04-21-2007, 05:11 PM.

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                          • #14
                            Depends

                            To be honest it all depends. What type of infraction warranted me stopping him? In your case weaving within his lane, which isnt against the law. However, you did say he touched the lane change line a couple of times.
                            Second what is his demanor? Did the individual at any time lie?
                            These are the factors I use if someone is borderline.

                            Me personally I do not let anyone go on DUI, if they are over the legal limits. Doesnt matter who they are even fellow officers.

                            In Georgia we have a DUI Less Safe law which if someone is between .05 and .079 which is still under the legal limits they can be arrested if they comitted an unsafe act, or present a danger to themselves and/or the public. Also I have seen officers charge this for persons over the legal limit .08 which I dont really understand.
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                            • #15
                              If he's even iffy on FSTs, he's outta here. I got no truck losing in court - I'll know I got him off the road and likely saved a life.

                              As for PBTs, they should be forbidden until after an arrest - to many cops use them instead of their own judgement anymore. A person can be well beyond safe operation and be under the per se limit.
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