Carrying while Intoxicated
Posted: Wed Oct 13, 2010 3:34 pm
This week I had the pleasure of serving on a jury for a DWI charge. Although this has no relevance on what I am about to ask, there was a high probability that the defendant was "intoxicated", but the state failed to prove "beyond a reasonable doubt" that the defendant was intoxicated. Had we been asked to look at it from a preponderance of the evidence standard, the outcome might have been different. The state's evidence was largely the patrol car video and the testimony of the arresting officer. The main part of the video has to do with standard field sobriety tests...and in this case the environment in which the tests were administrated and how they were administered play a key role in finding the guy not guilty (poorly administered and in a poor environment giving rise to reasonable doubt). I walked away from this with the impression that it is not in One's best interest (guilty or not) to voluntarily submit to FST's nor submit to giving a breath or blood specimen.
Which brings me to my question(s). As CHL holder we are subject to the same standard of intoxication as one would be in a DWI case (at least as far as I can tell in code). This is what I think I know (I could be wrong).
**There is not a law, case law, or any other means to compel One to submit to FST's and they are completely voluntary.
**An officer cannot use refusal of FST alone for probable cause but can consider it as part of the totality of the situation to bolster probable cause. Also, FSTs are not needed to prove probable cause.
**FSTs, when properly administered in ideal situations, are only 85% effective in determining if someone is either physically and mentally impaired due to the introduction of alcohol or drugs.
Imagine a scenario not involving a motor vehicle and/or etc. In which an officer has made contact and has reasonable suspicion that One is carrying while intoxicated. Is it reasonable to assume that the officer would follow similar investigative protocols and ask the suspect to submit to FSTs? I guess I'm asking what would be standard or normal protocol for the investigating officer. If FSTs are the protocol, Why in the world would anyone voluntarily submit to it knowing that it can and will be used against you. As a CHL holder, is there any means by which to compel One to submit to FSTs?
Blood and Breath, what I think I know:
**An officer cannot compel a suspect to provide a Blood or Breath specimen unless the charge includes serious bodily injury and/or death. Granted in a DWI charge, refusal is an automatic suspension of a driver's license for no less than 180 days according to IMPLIED CONSENT.
**Again, refusal by itself cannot be the sole grounds for probable cause but can be considered in the totality of the situation.
Can they suspend One's driver's license, even if the charge has nothing to do with a motor vehicle (I'm inclined to say yes)? And if so, how, if at all does this affect CHL status (I assume if charges are filed, CHL will be suspended until resolved). What if One refuses to provide a specimen, but charges are dropped by DA several days later. The driver's license is still suspended for the refusal.
So, Is it better to refuse FST and Specimen, knowing it will most likely give rise to (at least bolster) probable cause? Possible benefit is it gives a DA less ammunition (no pun intended) to use against you. Or is it better to submit FSTs and specimen in hopes of proving to the officer that you are not impaired? Possible benefit is that the officer releases you before going further. On the other hand, the officer most likely already believes he has probable cause, and only wants the FSTs and Specimen to bolster the case for the DA. Given that most "clues" on a FST is subjective to the officer, any misstep/misunderstanding, no matter how slight (e.g. not hearing and asking the officer to repeat instructions due to a loud truck driving by or something), can be perceived in a negative light.
Which brings me to my question(s). As CHL holder we are subject to the same standard of intoxication as one would be in a DWI case (at least as far as I can tell in code). This is what I think I know (I could be wrong).
**There is not a law, case law, or any other means to compel One to submit to FST's and they are completely voluntary.
**An officer cannot use refusal of FST alone for probable cause but can consider it as part of the totality of the situation to bolster probable cause. Also, FSTs are not needed to prove probable cause.
**FSTs, when properly administered in ideal situations, are only 85% effective in determining if someone is either physically and mentally impaired due to the introduction of alcohol or drugs.
Imagine a scenario not involving a motor vehicle and/or etc. In which an officer has made contact and has reasonable suspicion that One is carrying while intoxicated. Is it reasonable to assume that the officer would follow similar investigative protocols and ask the suspect to submit to FSTs? I guess I'm asking what would be standard or normal protocol for the investigating officer. If FSTs are the protocol, Why in the world would anyone voluntarily submit to it knowing that it can and will be used against you. As a CHL holder, is there any means by which to compel One to submit to FSTs?
Blood and Breath, what I think I know:
**An officer cannot compel a suspect to provide a Blood or Breath specimen unless the charge includes serious bodily injury and/or death. Granted in a DWI charge, refusal is an automatic suspension of a driver's license for no less than 180 days according to IMPLIED CONSENT.
**Again, refusal by itself cannot be the sole grounds for probable cause but can be considered in the totality of the situation.
Can they suspend One's driver's license, even if the charge has nothing to do with a motor vehicle (I'm inclined to say yes)? And if so, how, if at all does this affect CHL status (I assume if charges are filed, CHL will be suspended until resolved). What if One refuses to provide a specimen, but charges are dropped by DA several days later. The driver's license is still suspended for the refusal.
So, Is it better to refuse FST and Specimen, knowing it will most likely give rise to (at least bolster) probable cause? Possible benefit is it gives a DA less ammunition (no pun intended) to use against you. Or is it better to submit FSTs and specimen in hopes of proving to the officer that you are not impaired? Possible benefit is that the officer releases you before going further. On the other hand, the officer most likely already believes he has probable cause, and only wants the FSTs and Specimen to bolster the case for the DA. Given that most "clues" on a FST is subjective to the officer, any misstep/misunderstanding, no matter how slight (e.g. not hearing and asking the officer to repeat instructions due to a loud truck driving by or something), can be perceived in a negative light.
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