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Attorney present during BAC test


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  • Attorney present during BAC test

    The other day I arrested an idividual for OVI. After I asked him to submitt to a BAC test and read him all of the proper paperwork, he stated he was not going to take a chemical test without his attorney present. The officer conducting the test immediately stated, you can call your attorney but we are not waiting on him to get here. The individual then stated he would not take a test without his attorney present and stated he felt his rights were violated. I am under the impression you (as LEOs) are not required to wait for an attorney at the time of a BAC either blow or you dont. Is this correct?

  • #2
    Nope not waiting for a lawyer to get there. They refuse we get a warrant and get the blood anyway. If they refuse to give the blood after a warrant has been issued and we have to hold them to the floor w/ 6 officers then they get another charge of violating a lawful court order.
    Caught in the action of kill or be killed, greater love hath no man than to lay down his life for his brother.

    RIP brother and sister officers who have made the ultimate sacrifice.


    • #3
      Much easier in La..when you get your d.l. you sign for "Implied Consent" you dont blow-we go ,straight to the hospital,and as stated if it takes 6 so be it,or we can just get that red stuff dripping out your nosej/kIt is rarely done except in accidents with injury/fatality.We also have ,that if you refuse (and we dont take blood) it is an AUTOMATIC 6 month suspension of your license.
      Sleeping Giant. They're not fat and happy anymore. They are hungry and increasingly angry. That is not a good recipe for a "Puppies and Rainbows America".


      • #4
        No..we are not going to wait for his attorney to show up. He can make phone calls AFTER the booking process is completed. If he refuses he will be suspended by DMV for a year and then we will force a blood draw. The prisoner does not dictate the terms of his arrest.


        • #5
          You are not entitled to a lawyer during an investigation. Only during question, and if no questions are going to be asked, no lawyer. Also, a lawyer is not going to come down there especially at 3 a.m.

          If you refuse, I get a warrant. If you still refuse, we will get the blood by force!
          "When I close my eyes.....I'll see you on the other side....!!!"

          Hate to put it this way skippy, buy every night I suit up and climb in the cruiser I'm at war. I'm always outnumbered, potentially out gunned and always behind enemy lines.


          • #6
            Alabama is an "Implied Consent" state. Under the circumstances you described, the subject would have been written up as a refusal, and his license would be suspended for ninety days. The suspension takes effect regardless of the disposition of the original charge.


            • #7
              Indiana has implied consent as well.
              "...and the taking of a life is murder. And the punishment for murder is.... well it varies from state to state and by race, but...." - Homer J Simpson.

              Police: "Stop and we'll shoot!"
              Dilbert: "Stop AND we'll shoot? If you're gonna shoot, why should we stop?"
              Police: "Well, it would be alot easier for us. The targets at the shooting range don't run."

              R.I.P. Momma Coleman. You may have left our world, but you have NOT left our hearts.


              • #8
                In CT, I have to allow you to call your lawyer. If you do, the lawyer typically tells you not to blow. I don't mind because it's a lot easier doing the paperwork for a refusal. But, I don't wait for the lawyer to show up. We have time constraints in the law that give us parameters on how we run a DUI (DWI).
                "Blaming the prince of the fools should not blind anyone to the vast confederacy of fools that made him their prince" - Unknown Author

                "That government is best which governs the least, because its people discipline themselves." - Thomas Jefferson

                “There are two ways to conquer and enslave a nation. One is by the sword. The other is by debt.” - John Adams


                • #9
                  Implied Consent here, too.
                  The sheep generally do not like the sheepdog. He looks a lot like the wolf. He has fangs and the capacity for violence. The difference, though, is that the sheepdog must not, cannot and will not ever harm the sheep. Any sheepdog who intentionally harms the lowliest little lamb will be punished and removed.

                  I Am the Sheepdog.

                  "And maybe just remind the few, if ill of us they speak,
                  that we are all that stands between
                  the monsters and the weak." - Michael Marks



                  • #10
                    Here in Kentucky the subject has “at least 10 minutes but not more than 15 minutes to attempt to contact and communicate with an attorney” per state law.
                    It could be that the purpose of your life is only to serve as a warning to others.


                    • #11
                      My old and new states of LE practice, CA and CO, are both implied consent states....we're not waiting for any third party to be present for the FST, a GCI, or the selection of drapes and pillow shams for the jail cell windows and bunk.
                      "You're never fully dressed without a smile."

                      Pain is inevitable, suffering is optional.

                      Three things I know for sure: (1) No bad deed goes unrewarded, (2) No good deed goes unpunished, and (3) It is entirely possible to push the most devoted, loyal and caring person beyond the point where they no longer give a 5h!t.


                      • #12
                        here they refuse they automatically lose there driving privileges from 1 to four years if there found guilty of dui or not by the district, they do get a administrative hearing on the revocation though.

                        so like a old cop told me the best thing you can do is talk them into refusing.
                        "What the problem is?"


                        • #13
                          Originally posted by DRock24 View Post
                          The other day I arrested an idividual for OVI.

                          I am under the impression you (as LEOs) are not required to wait for an attorney at the time of a BAC either blow or you dont. Is this correct?
                          I'm a little under the weather so forgive me if I'm wrong but if you arrested the individual for OVI, I don't see how you would not know whether or not you have to wait for an attorney. You're an LEO, right?

                          "I am under the impression you (as LEO)", that part seem's to refer to you not being an LEO, every LEO I know of would have said "I am under the impression WE (as LEO's)".

                          Maybe I'm reading it wrong, but I had to ask.




                          • #14
                            I think the key is whether there's a fifth amendment issue and whether the evidence is testimonial in nature.

                            Breath and blood samples are NOT testimonial. Thus, the defendant cannot take the fifth and is NOT entitled to an attorney.

                            "Jerry, just remember, it’s not a lie if you believe it". George Constanza.


                            • #15
                              CA is a one year suspension for test refusal. Two years second within 10 years. Three years for third within 10 years.

                              I think we need a three strikes law for DUI violators. First DUI, use the existing laws and advise them they have a DUI Strike. Second, you get a second chance to clean it up and are advised that a third strike means you will be riding a bike for the rest of your life. Third strike...maybe you can join Critical Mass now you no-good criminal.
                              -I don't feel you honor someone by creating a physical gesture (the salute). You honor them by holding them in memory and, in law enforcement, proceeding in vigilant, ethical police work. You honor this country or deceased soldiers or whatever you're honoring when you salute a flag by thinking, feeling, and continuing a life of freedom.



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