No Refusal Weekend

[aramis307]

It is a No Refusal Weekend in Brazoria County, Texas.

If you are stopped and asked for a breath sample in conjuction with a DWI, you may not refuse. If you do, we will get a search warrant and take your blood. We have personnel standing by to write the warrants, judges on call, and nurse available for the draw.

Drive safe.

Comments

[aramis307]

1. Refusal to consent does not constitute cause.

2. If I have probable cause to arrest someone for DWI without a warrant, I have probable cause to secure a search warrant. So there is no violation of the Fourth Amendment.

Perhaps I did not articulate this adequately.

If I, or another officer, is asking for a breath sample, the person is already under arrest. At this point, I have enough probable cause to arrest (sign of intoxication, a person at the wheel of a vehicle with the keys in the ignition, manner of handling the vehicle, etc). Further, I also have the person on video, as well as their driving patterns.

It's really no different than getting a warrant for DNA from a suspect in a sexual assault or a burglary.

So given that the breath sample is only requested after a person is already in custody for DWI, and given that the elements have alread been met (BAC is only a supporting element, and not a determining factor), and given that the refusal is not an element of cause for the warrant (nor can it ever be), how is this a circumnavigation of the 4th Amendment?

Having said that, 24 hours into this, I'd rather just accept the refusal and move on. Believe it or not, I don't need the BAC to prove intoxication. Why go to all this trouble then? Beats the hell out of me. They dodn't consult me on this one.

[aramis307]

1. I don't know how they do things in Louisianna.

2. The news is getting it wrong. They do that more often than you'd think.

2A. In your scenario, you are not free to leave because a traffic stop is an arrest. A citation is merely a PR bond. Further, if someone is stopped for a tail light, and the officer then observes signs of intoxication, then he has every right to ask for a field sobriety test. A person can refuse, of course, but that doesn't prevent an officer from making an arrest for DWI. Additionally, it is possible to deprive a person of freedom of movement with making an arrest. That is called a detention, and is based upon reasonable suspicion, which is a lower standard than probable cause.

After making the arrest, the officer asks for a breath or blood sample, depending on circumstnces (if some type of drug is suspected, it will be blood). In fact, the statutory warning even reads "You are under arrest for an act or acts alleged to have been committed while operating a motor vehicle or water craft while in a public place while intoxicated". The key words here being "You are under arrest". Once again, the breath sample isn't even asked for until after the arrest. Like I said, though, I don't know how they do it in other states.

Side note, a breathalyzer is not mobile. It is a giant machine which is not transported. The small hand held units are not true breathalyzers, and not even an accurate predictor of BAC. So the only way for a person to give a breath sample is to be taken to the police department, and thus they are already under arrest.

Are you satified with my integrity now, or do I need to make another clarification? As I stated, I don't think I articulated this adequately in my initial statement.

Re: Hold on,

[aramis307]

I have actually heard that about Louisianna.

Miranda rights are not read at the moment of arrest. This is a popular misconception fueled by TV shows. Miranda is only read after a custodial arrest (more ont hat shortly) prior to guilt seeking questions. "Guilt seeking" is the key phrase. There is a difference between the traffic stop (usually not a custodial arrest) and an arrest where a person is subsequently incarcerated, which is custodial. In the traffic stop, if a person refuses to sign the citation, then the officer is required to take the person into custody, because they refuse to agree to abond, which is what a citation actually is.

Side note about Miranda; it is only required when a person is being asked guilt seeking questions relating to the offense for which the person is in custody. If someone is in custody on a narcotics charge, but they are questioned about a murder, it is not required. Having said that, I imagine at some point in the future it will be required. Any officer who doesn't give it in such a circumstance is a dumbass.

No signs of intoxication; well, an officer can always ask if you've been drinking, but not "what have you had to drink". DWIs have been thrown out when officers have asked that question prior to Miranda. I realize what I said above, but the reason is when a person is stopped on traffic and then asked a specific question about alcohol, then the courts have held that the person stopped reasonably believes s/he has been stopped for DWI, and thus Miranda applies..sort of...they think...but cases get thrown out. Now, if a person says they've been drinking then an officer can ask if they are willing to submit to a Field Sobriety Test (Horizontal Gaze Nystagmus, Walk and Turn, and One Legged Stand). This test will then be used to eastablish intoxication for the purpose of a custodial arrest. A person can say no to that with no real penalty (for the most part). If the officer then makes an arrest, he has to do so on articuable signs of intoxication. Four bigs clues to this are slurred speech, unsteady gait, difficulty maintaining an upright position, and disorientation to time, place, and event. This will almost always be on video (why an officer would try to do this without video is beyond me, as cases without video are being thrown out). It is not until all of this is done that a person is asked for a breath sample. The courts have held if a person rides to the police department in the back of a patrol unit, then that person has the reasonable belief he is under arrest. Further, any breathalyzer test run without a Statutory Warning (DIC 24 in Texas) is inadmissable (in Texas, not promises about other states).

I know there are bad cops who abuse their authority and discretion. In all fields of human endevour, there are people who will stray outside the lines. I don't deny this. However, in Law Enforcement, I think it is the exception rather thant he rule.

It seems I have to go do something with the Kiddopotamus.

Re: Hold on,

[aramis307]

I understand. I guess it is a little different for me, because I am the favorite parent, which has my wife ticked off to no end.

But you know, if it were possible, I would spend every moment sitting and holding her.

Damn job and life functions.