yes another cop/legal question

[CADsortaGUY]

OK, normally I stay away from all these threads because everyone flames people for what they did or didn't do and just say to get a lawyer but ofcourse my situation is different

My brother was just dropped off at my place after being pulled over by the wonderful "peace" officers in the town I live in. He was stopped and ticketed for not coming to a complete stop at a stop sign. $65 fine. Whoop-dee-doo

Now he admits to not stopping so he should pay the fine but......

He had a few beers(according to him) and so the cop had him perform field sobriety tests. She claims he failed but that is subjective anywho, so she gave him a breathelyzer. In Iowa the BAC limit is .08 mind you. He blew a .067 the first time and a .71 the second (don't ask me why he had to blow the second time which was 15 mins after the first one) but anyway he was not "legally" drunk so she couldn't get him for DUI. Now my question come in right here - Does the cop have any legal right to impound his vehicle? She did because according to her she "didn't feel that she should let" him drive home. Now he has to pay impound fees and the like. This is a reletively small city (20K?) and it could have been just left there parked on the street as there is on street parking.

Is there law or precidence for impounding cars when only a minor traffic ticket was issued?

I'm scouring the web since any decent lawyer would be sleeping at this hour and I don't feel it neccesary to get them involved anyway...at this point. Any help?


Again - sorry for the car/cop thread

CkG

 

[Konigin]

I don't think she had the right to impound the car because there was no actual reason. As far as I know they don't have the right to impound the car for minor traffic violations.

 

[IamElectro]

1st he should pay the fine pay the impound fee consider himself very lucky.

Second did the officer have the breathelyzer in her car? Most small towns would not. Meaning they had to goto station to do so. There by they had every right to impound the vehicle.

Does the cop have any legal right to impound his vehicle? She did because according to her she "didn't feel that she should let" him drive home

Sure she does she was covering her @ss and the cities, say he got in a wreck and injured people she the officer and the city could be held responsible.

If I were him forget the lawyer. The impound and ticket would be cheaper than fighting it. Again consider himself lucky.
I dont know about Iowa, but In WV a DUI runs about 5000 grand after a lawyer fines and everything else plus the increase in insurance. My ex's father is paying 4500 a year in insurance since his DUI.

Yet again consider himself lucky

 

[slickcat]

IamElectro: he said that his brother blew under the legal limit. Why is it ok to impound the car when he was legally able to drive the car? Is that ok to do when he is not legally drunk? That would be like me drinking a beer and then driving somewhere and getting my car impounded just because I drank a beer even though I blew under the legal limit. That doesn't make sense to me.

 

[minendo]

Is your bother over 21?

 

Originally posted by: slickcat
IamElectro: he said that his brother blew under the legal limit. Why is it ok to impound the car when he was legally able to drive the car? Is that ok to do when he is not legally drunk? That would be like me drinking a beer and then driving somewhere and getting my car impounded just because I drank a beer even though I blew under the legal limit. That doesn't make sense to me.

Think about it though. I know a couple of girls that can have only 3 beers and be totally trashed. Their BAC would only be around .05, but they are in no shape to drive. Do you still think they should be on the road?

 

[minendo]

(don't ask me why he had to blow the second time which was 15 mins after the first one)

You BAC reaches its peak 15 minutes after the drink was fully consumed.

 

[Jmman]

Well, here in Colorado they can give you a ticket for DUI even if your BAC is below the limit if you do something that shows that you were impaired (like not stopping at a red light!)...... Might have been a similar situation here.......

 

[josphII]

She probably had the right to do so but if he gets lawyer he will surely win (and get he stop sign violation tossed out too)

 

[KK]

If you get pulled over and you have been drinking, do not let them do any type of tests.

KK

 

[minendo]

Originally posted by: KK
If you get pulled over and you have been drinking, do not let them do any type of tests.

KK

Why? So they can drag your ass to the station and do a blood test?

 

Originally posted by: KK
If you get pulled over and you have been drinking, do not let them do any type of tests.

KK

That will probably be your best bet. However, if you are so drunk that you pass out or vomit, they will get you to a hospital and then your BAC will be known. The hospital can be really accurate at finding out what your BAC was at the time of detention/arrest.

 

[Jmman]

Refusing to take the test is not really a valid option in any states I know of. If you refuse to take the test, they automatically take and suspend your license for at least a year if not more......

 

[Vette73]

Your brother is a real smart one, drinking and driving. And a .06-.07 is still to the point he should have not been driving.

Your brother = LOSER

 

[DurocShark]

Breathalizers or no, the cop is legally reaquired to use his/her best judgement to determine if someone is intoxicated. And they're considered expert witnesses too, so a cop's judgement call is the same as a breathalizer.

 

[KK]

Originally posted by: minendo

Originally posted by: KK
If you get pulled over and you have been drinking, do not let them do any type of tests.

KK

Why? So they can drag your ass to the station and do a blood test?

Yes, that is the idea.

KK

 

[Spac3d]

Originally posted by: Marlin1975
Your brother is a real smart one, drinking and driving. And a .06-.07 is still to the point he should have not been driving.

Your brother = LOSER

A .08 is ridiculous level, it should be raised.

 

Originally posted by: Spac3d

Originally posted by: Marlin1975
Your brother is a real smart one, drinking and driving. And a .06-.07 is still to the point he should have not been driving.

Your brother = LOSER

A .08 is ridiculous level, it should be raised.

your right, so we can have even more drunks killing our family members. asshat.

 

[bunker]

When I was 19 I got pulled over 1/2 mile from my house. I think I blew a .15

Anyway, the cops parked my truck in a local shopping area parking lot and drove me home, didn't impound it.
Maybe the cops in my city were just nicer?

Yeah, yeah, I know, I got lucky. I did learn my lesson though and haven't driven drunk since (30 now).

 

[TheCorm]

Originally posted by: minendo

(don't ask me why he had to blow the second time which was 15 mins after the first one)

You BAC reaches its peak 15 minutes after the drink was fully consumed.

LOL....so he was drinking while the first test was being taken?

Your brother is a real smart one, drinking and driving. And a .06-.07 is still to the point he should have not been driving.

I don't drink AT ALL after even 1 drink....it's the sensible thing to do....BUT...he wasn't over the limit at least.

IamElectro: he said that his brother blew under the legal limit. Why is it ok to impound the car when he was legally able to drive the car? Is that ok to do when he is not legally drunk? That would be like me drinking a beer and then driving somewhere and getting my car impounded just because I drank a beer even though I blew under the legal limit. That doesn't make sense to me.

I too think that there was no justification at impounding his car....I think he should have been warned, given the other fine and sent on his way....then if the same situation occured again then bye bye car....of maybe something a little stricter.

 

[tnitsuj]

In most jurisdictions a police officer can arrest you for DWI or DUI even if you do not blow at or above the legal limit. Was your brother given any other tests besides the Portable Blood Alchohol Test? I mean the walk and turn, horizontal gaze nystagmus, etc? most jurisdictions also have different cutoffs for DWI, DUI.

If based on the officers observations, and experience she felt that your brother was not able to safely drive she can order the car towed in most jurisdictions. Police departments have been sued for doing otherwise. Be thankful she didn't haul him in.

Summary, the portable breath test is not the deciding factor. That would be stupid, different people are at different levels of competance depending on weight, sex, etc. Officers use the portable breathalyzer as a guideline along with the SFST to determine impairment.


BTW your numbers are off, .71 is dead. A .067 is not a level you should be driving at. Your brother needs to learn a lesson from this, but I doubt he will. They never do.

 

[jemcam]

The cop has a legal responsibility to prevent anyone from driving if they think they are not safe to drive, intoxicated or not. The same would apply to an older person, say in their 80's. They may meet the legal requirements, but if the cop felt they could not drive safely, they have the right to prevent that driver from operating the vehicle.

We had a similar situation in my home town where a cop pulled a kid over, noted that he was drinking, but didn't think he was intoxicated. Sure enough a mile down the road the kid crossed the center line and killed three people including himself.

Now the attornies are suing the city for BIG bucks, claiming that even though the cop didn't think the kid was drunk, the cop knew the kid was impaired and thus should have stopped him. The decision to let the kid go cost 3 innocent people their lives. Could it have happened if the kid never drank anything? Possibly, but we'll never know, and since it's all in the police report, the cop and the city is going to foot the bill for millions.

In your brother's case, the cop did the right thing IMHO.

 

[HomeBrewerDude]

write a letter to the police chief. Ask him to review the actions of the police officer. If they have a written policy for what she did then you don't have much choice...i.e., she WAS just doing her job. BUT if they have a contrary policy, or they have don't have a policy at all, then thats another matter.

My guess is that you bro is out the impound fees.

 

[BigJ]

Although a PITA for your brother, I'd have to say the cop made the correct call.

 

[Rogue]

First off, as other people have said, if he failed the FST (field sobriety testing), then it can be articulated that he was incapable of driving safely. Second, the time lapse for the PBT (preliminary breath test) or Intoxilizer is because often times people's BAC climbs dramatically if they've just had a drink. Also, you are supposed to initiate a deprivation period where the person cannot have anything in their mouth or burp or otherwise do anything that may interfere with the Intox machine. Did she use a small handheld machine on site after the FST, then transport to the station and conduct Intox testing? She was probably hoping his BAC would break the limit so she could bust him for DUI, not that she couldn't have articulated it anyway and possibly charged him just based on failing the FST and running a stop sign alone. Third, she probably impounded the car for several reasons.

a) to ensure that he, in his condition would not simply drive off when she was out of eye sight

b) to ensure that her removing him from his vehicle and leaving it parked on the side of the road did not put her or the department or anyone else at risk of the vehicle being damaged or getting hit by someone

c) it's possible that she suspected that he was transporting an open container and hid it from plain view so by impounding it, she could legally "inventory" the car to find the suspected bottle/container of alcohol and maybe make a better case against him

Either way, he doesn't have a good leg to stand on. As stated, he's better off chocking it up to experience and realizing that he came very, very close to a world of hurt in being charged for DUI. As a cop, I recommend that he simply pay his fines and call a cab from now on when he drinks.