"FOR LEOs ONLY" DUI Question

[CDR Stang]

I was talking to some insurance people I know and the conversation turned to being pulled over after drinking. They told me if the officer asks if you've been drinking you tell them yes. If they ask you to perform the breathalizer you're supposed to tell them "I will not consent to a breathalizer test due to the known inaccuracies and unrelyable readings associated with these kinds of tests." The reasoning here is you are not refusing to take the test because you know you're guilty, but you're refusing to take this type of test because they are known to show false readings. You then tell the officer "I want a court ordered blood/alcohol test performed." At this point, the officer must observe your rights and haul you off to jail so they can get the appropriate paperwork to have a blood/alcohol test performed. Since it takes longer to do the court ordered test, the b/a should be lower than if they just haul the person in to the hospital or clinic right on the spot. Your comments please.

Tom

 

[jshen]

Holy Crap!

Who ever told you that is an absolute moron...Gee, what if you actually passed the field alcosensor intox test? You go home. By the way you explain, you just forced the officer to arrest you, impound your car, give you an arrest record AND you will take the state administered test or loose your license. Here we give two breath tests within minutes of each other and I can tell if you more or less impaired at the time of your driving. Furthermore, experts can tell from you how fast you metabolize alcohol. Guess what, you don't get to choose the test...the officer does and I would much prefer the blood test as it's easier to get into evidence and it usually runs higher than the breath test. If the officer chooses a blood test..and it takes several weeks to get results back...you get to go to jail and post bond...Now you have a permanent arrest record...regardless of the outcome of your test. Your fingerprints will be on file as well as record of arrest forever and ever. Next, such a BS response will not bode well for you with the officer so expect nothing but "by the book" treatment and no warnings or slack given.

Advice from friends...a dangerous thing. I hope you see the falicy of his suggestion.

 

[stangd1909]

Who ever told you that is an absolute moron...Gee, what if you actually passed the field alcosensor intox test? You go home. By the way you explain, you just forced the officer to arrest you, impound your car, give you an arrest record AND you will take the state administered test or loose your license. Here we give two breath tests within minutes of each other and I can tell if you more or less impaired at the time of your driving. Furthermore, experts can tell from you how fast you metabolize alcohol. Guess what, you don't get to choose the test...the officer does and I would much prefer the blood test as it's easier to get into evidence and it usually runs higher than the breath test. If the officer chooses a blood test..and it takes several weeks to get results back...you get to go to jail and post bond...Now you have a permanent arrest record...regardless of the outcome of your test. Your fingerprints will be on file as well as record of arrest forever and ever. Next, such a BS response will not bode well for you with the officer so expect nothing "by the book" treatment and no warnings or slack given.

Advice from friends...a dangerous thing. I hope you see the falicy of his suggestion.

Agree....and on top of that in FL if you refuse the breath test you lose you DL for a year.

 

[Lawfficer]

Here comes the Defacto Cheesehead Expert....!!!

"I will not consent to a breathalizer test due to the known inaccuracies and unrelyable readings associated with these kinds of tests."

The Preliminary Breath Test (PBT) is quite accurate, but not accurate enough for most courts to convict on it alone. This is why we do not convict on it alone and use the other field sobritey tests to determine if you are Under the Influance. The PBT is only accurate to two Decimal places(.00) But, The Breathilizer is accurate out three decimal places(.000).

Most of the time, I know if you are drunk a few seconds after you step out of the car, and just put you through the paces to confirm it. You can refuse to take the PBT, as It's considered another Field Sobriety Test but im going to mark it as a failure. One Failure is a total failure and you will then get a arrested and ticketed for Operatiing While Intoxicated.

Now, Under Wisconsin's Implied Consent law, you CAN NOT refuse the breathilizer that is at the station, if you do, It will get you another ticket and I will fill out paper work that will REVOKE your drivers license. Then, Im going to stuff you back into the squad car and take you to the hospital. There they will take your blood as it is evidence. If you try to refuse this by fighting etc, It can be taken as far as putting you down with muscle relaxers, but I don't know if I would go that far unless you were in an accident and hurt or killed someone.

As for the Lower Blood Alcohol Level comment, that is correct. The Longer you wait to take the test, the lower it will be due to your body doing it's thing and cleaning the alcohol out of your system. However, your blood alcohol can be determined after an arrest using your body weight and known level of Blood Alcohol at a certian time. Most people will clean out around .01 an hour out of their system, depending on a few things. The Judge here is cool and if you put in your report that you would like the Time of Arrest and the Time of test taken into consideration, he will and normally will tack on .01 for every hour. That being said, Officers have other things to do and will not sit there and play a drunks games. I have yet to arrest someone for OWI where I have not had them blow into a tube, or had a nurse stick a needle in their arm within an hour of the arrest time.

Furthermore, Yout ability to drive while drinking is what gets you an Operating while intoxicated charge. If you are not a drinker and are drunk at a .02, then you are guilty of OWI even if your not over a .08. The .08 is the amount at where Wisconsin has determined that the average person is drunk, and prohibits them from driving. This way, your Alcoholics that can seem to function at a .15 are not driving. If your BAC is over .08 in Wisconsin, you get another completely seperate ticket than the OWI, called Operating with a Prohibited Alcohol Concentration.

So anytime you are arrested for OWI you get a stack of tickets, the more cooperative you are the better........

Ticket 1: Original Offense for Stop (Left of Center for Example) $181.00 3pts
Ticket 2: Operating While Intoxicated $798.00 6 pts
****** Possible 6mo License Suspension.
Ticket 3: Operating With a Prohibited Alcohol Concentration $798.00 6pts(<.08)

This is where they start to add up for the non-complient person:

Ticket 4: Refusing to take a Breathilizer Test (Cant remember cost right now)
******* Plus add on that you are now Revoked and can not drive for a year.
Ticket 5: Disorderly Conduct $248.00
Ticket 6: Resisting an Officer $248.00

346.63(1)
(1) No person may drive or operate a motor vehicle while:

346.63(1)(a)
(a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or

346.63(1)(b)
(b) The person has a prohibited alcohol concentration.

No person may engage in the operation of a vehicle while the person has an alcohol concentration of 0.08 or more.

 

[lowdrag]

A common misconception is that the longer you wait to take a breath test, the lower your blood alcohol level will be. This is usually the case but not always. If you've just put down two or three drinks "for the ride home". Your blood alcohol level may be on its way up for a while before it starts to come down. If you've got a higher concentration of alcohol in your digestive system than in your blood stream, it will take a while for your blood alcohol level to level off as the blood stream will absorb the alcohol at a faster rate than the body processes it out of your system.

 

[CDR Stang]

A common misconception is that the longer you wait to take a breath test, the lower your blood alcohol level will be. This is usually the case but not always.

So by your statement the odds are in favor of the level coming down.

Ticket 5: Disorderly Conduct $248.00
Ticket 6: Resisting an Officer $248.00

I can see how all this would happen if the person just wants to forgo all the formalities and willingly to want to have a blood test taken. I think the point my moron friend was trying to make is that if the person is drunk and he knows he's going to be cuffed and stuffed anyway, just be overly cooperative but insist on the blood test only right from the start. How can it be Resisting an Officer if you ask them "can I get in your car so you can give me a ride to the hospital for my test?" :-D

 

[jshen]

Quite Correct!

A common misconception is that the longer you wait to take a breath test, the lower your blood alcohol level will be. This is usually the case but not always. If you've just put down two or three drinks "for the ride home". Your blood alcohol level may be on its way up for a while before it starts to come down. If you've got a higher concentration of alcohol in your digestive system than in your blood stream, it will take a while for your blood alcohol level to level off as the blood stream will absorb the alcohol at a faster rate than the body processes it out of your system.

That's why in GA we use two breath tests...We can tell if you're on the rise or fall...

 

[FordSVTFan]

So by your statement the odds are in favor of the level coming down.



I can see how all this would happen if the person just wants to forgo all the formalities and willingly to want to have a blood test taken. I think the point my moron friend was trying to make is that if the person is drunk and he knows he's going to be cuffed and stuffed anyway, just be overly cooperative but insist on the blood test only right from the start. How can it be Resisting an Officer if you ask them "can I get in your car so you can give me a ride to the hospital for my test?" :-D

As Tony stated it is the officers decision as to what test you take, not yours. So if you refuse the breathalizer, then those charges can be added.

Either way you look at your friend's advice it is plain wrong. Plus as you initially stated the reasoning on refusing the breathalizer was

Since it takes longer to do the court ordered test, the b/a should be lower than if they just haul the person in to the hospital or clinic right on the spot

So that information is also bogus and is more likely to cause you to get charges added and more of a slam dunk for the prosecutor.

 

[sbro712]

We offer you a breath test. You DO NOT get to tell us which test you are going to take. Refusal to take the test offered is a refusal. Period.

Funny story about the "supposed inaccuracies of the Breathalyzer" we had a so called "expert" running around Dallas County that the defense liars would use for DWI defense. This imbecile claimed that eating such things as hot dogs, onions, pickles, and peppers could cause someone to blow over a .08. The prosecutors got tired of his lies and called his bluff in one trial.

After this blowhard moron had given his little spiel to the jury the DA wheeled in a Intox 5000 followed by a hot dog cart with all of the trimmings (onions, peppers, pickles, mustard and ketchup). The so called "expert" declined to put his theory into action. He is no longer used by the defense liars.

 

[Lawfficer]

In the State of Wisconsin, there are three different types of Test that can be given for determining Blood Alcohol Level: Breath, Blood, or Urine.

The officer gets to determine the primary test, and must have a second test available should the first one not work etc. Ours is breath. Why? Because I know if your getting a PAC ticket or not 15 seconds after you blow in the tube. It dosen't hurt and dosen't give the person the option to fake faiting during a blood draw making my stay in the hospital longer.

Blood is our back up for a few reasons. We have to take you to the hospital, which is a pain. Then we have to wait in line at the hospital. Obviously we get priority over the common person, but when the Ambulance follows you in with a car crash victim, they get attended to first... As it should be.
Also, it increases our paperwork. The blood draw has to be sent into the State Hygine lab to be tested. The last few I did only took a week, but it can be alot longer. Then we have to submit an amended Complaint to the DA indicating the results of the tests and then write another PAC ticket, making sure to get all the Date/Time info correct.

Third is Urine: Least Favorite of all for lots of reasons but the main one is, your drunk and im not holding the cup.

As far as the Obstruction and Resisting tickets I mentioned, 99% of the time, no one get those. The 1% who do are the Mean drunks where you can't get them to do anything and they fight and fight the whole way. Like A-holes that won't stop spitting so you have to pull their shirt over their head. Or Lock their feet against the sqaud cage so you can't pull them out. They're also the ones that will squirm in the hospital so the nurse can't get a good blood draw, and the ones that use profanity that would make a sailor blush. If I have to call in Hospital Security to help my hold you down while a Nurse draws blood on you, you bet your ass your getting a Obstruction Ticket.

 

[Lawfficer]

I can see how all this would happen if the person just wants to forgo all the formalities and willingly to want to have a blood test taken. I think the point my moron friend was trying to make is that if the person is drunk and he knows he's going to be cuffed and stuffed anyway, just be overly cooperative but insist on the blood test only right from the start. How can it be Resisting an Officer if you ask them "can I get in your car so you can give me a ride to the hospital for my test?" :-D

343.305(2)
(2) Implied consent. Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon the public highways of this state, or in those areas enumerated in s. 346.61, is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer under sub. (3) (a) or (am) or when required to do so under sub. (3) (b). Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3) (a) or (am), and may designate which of the tests shall be administered first.



You can also get a blood draw done after the test if you want, but you have to make your own arrangement and pay for it yourself. Also, another good reason to submit to the Breath Test is the results are rounded down. For eample, if you blow a .233 on the first tst. Then a .229 on the second test, the Machine drops the last decimal and only records you are a .22. The Blood comes back with Three decimal places and is exact, which in my expirance, is normally higher.

 

[Lawfficer]

Here is the last OWI stop I made that is all the way through court. As you can see, Drinking and Driving don't mix
This case is an example of someones 3rd OWI, typical with your common Alcoholic. He refused the breath test, and blood returned a .262. Since he had prior OWI's, his legal limit was only .02. So he was Thirteen Times(13) his legal limit.

 

[Spade]

**Removed by Moderator** as author requested only L.E.O. answers.

 

[CDR Stang]

Funny story about the "supposed inaccuracies of the Breathalyzer" we had a so called "expert" running around Dallas County that the defense liars would use for DWI defense.

Interesting. I have asthma, and I carry an inhaler incase I get an asthma attack. The ingredients in this inhaler states it has 33% alcohol. I wonder what a breathalyzer would show after a couple of hits of that. I'll have to see if my brother-in-LAW will let me test this.

BTW Good stuff. I'll have to print this post and show it to my friend. I'll leave out the offensive poster that called him a moron. We're all just looking for information folks. :thumbsup:

 

[Lawman85]

Interesting. I have asthma, and I carry an inhaler incase I get an asthma attack. The ingredients in this inhaler states it has 33% alcohol. I wonder what a breathalyzer would show after a couple of hits of that. I'll have to see if my brother-in-LAW will let me test this.

BTW Good stuff. I'll have to print this post and show it to my friend. I'll leave out the offensive poster that called him a moron. We're all just looking for information folks. :thumbsup:

It will register on the breath test originally, much like mouth alcohol (the residue alcohol in your mouth after taking a drinking). The effects only last for a few minutes and quickly go away. The dead give away is if the officer suspects someone is about a .12 or so and the breat test shows a .25 or.30 (which is common with mouth alcohol or the inhaler), then he knows to wait 5 mins or so and retest.

 

[Lawfficer]

Wisconsin requires 20 min observation of the subject prior to the Intoximeter test. No eating, drinking, burping, throwing up, etc.... If you do, time starts all over.

 

[Spoyldrotn]

Wisconsin requires 20 min observation of the subject prior to the Intoximeter test. No eating, drinking, burping, throwing up, etc.... If you do, time starts all over.

Same in NJ

 

[sbro712]

Wisconsin requires 20 min observation of the subject prior to the Intoximeter test. No eating, drinking, burping, throwing up, etc.... If you do, time starts all over.

I think that is a national standard.