yes another cop/legal question

[tnitsuj]

"She claims he failed but that is subjective anywho"

Everything is always subjective when you are the one at fault.....roll..

 

[Vic]

Even though he was under the 0.08% limit, he was still "under the influence," so the officer had probable cause to make an arrest and do the impound. Your brother is out the impound fees. Considering that he came a mere 0.009% from jailtime, license suspension, and thousands of dollars in fines and fees, I think he should feel lucky.

And tell your brother that the next time he's only had 2-3 beers (which is what 0.071% would be), that he should just baldface lie to the cop and say that he hasn't had anything to drink. Because telling a cop that you even had so much as one sip 6 years ago causes them to go into their hyperactive "timeshare salesperson" mode...
And for the nerds here... yes, 0.08% is too low. Most people are still unaffected at that BAC. The 0.10% level should be restored. I don't condone drunk driving, but damnit, I want to be able to take my woman out to dinner and have a single glass of wine and without be hassled, thank you very much you puritan assholes...

edit: I was NOT suggesting that anyone ever refuse the breathalyer -- that's called "implied consent" and you can lose your license on the spot.

 

[Rogue]

KK,

Go ahead and refuse to cooperate in a DUI investigation as the primary suspect. As stated, most states ask nicely once and then the second time you do not drive for a year for lack of cooperation. The "odor of an alcoholic beverage" on a driver of a vehicle is what's called "probable cause for investigation." Here in Kansas, you refuse to cooperate, we sign the form and you don't drive for a year, period. Remember, driving is a privledge, not a right of the people. See, even better is that we record, on video, your lack of cooperation, then we send it up with the report to the judge just so he/she can get a good laugh at a drunk a$$hole thinking he's getting one over on the law by "not doing $hit" for the police. It's always a fun process.

 

[Rogue]

In my personal experience, .08% is not too low. Hell, I'd make it .06% if I were in charge. I've seen far too many people at a mere .08% here were completely incapable of operating a vehicle. .06% is good for about two drinks which is enough for someone to "enjoy" with dinner and any more than that is careless. Besides, as stated above to KK, driving is a privledge. You DO NOT have to operate a vehicle at all after drinking.

I do remember one time though that a Command Sergeant Major from a National Guard unit got pulled over here on post and took off running from his car into the woods. The officers, once they hauled him down would have never guessed that his BAC at the time was .27 or more. I guess practice makes perfect!!!

 

[Kyteland]

Originally posted by: 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.

Not to be an ass, but it sounds to me that he only cost two innocent people their lives. Personally, I wouldn't have counted the drunk driver among the innocent.

 

[Ness]

I hope your brother takes this to court and gets an a$$-riping by a judge. Man, I sat in on court a few times to do research and just sitting there I felt like cowering into the corner at some of the things the judge said to some people.

 

[jemcam]

Originally posted by: Kyteland

Originally posted by: 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.

Not to be an ass, but it sounds to me that he only cost two innocent people their lives. Personally, I wouldn't have counted the drunk driver among the innocent.

I should have been clearer. There were a total of 4 people killed including the driver. I should have said killed three people in addition to himself.

 

[KK]

Originally posted by: Rogue
KK,

Go ahead and refuse to cooperate in a DUI investigation as the primary suspect. As stated, most states ask nicely once and then the second time you do not drive for a year for lack of cooperation. The "odor of an alcoholic beverage" on a driver of a vehicle is what's called "probable cause for investigation." Here in Kansas, you refuse to cooperate, we sign the form and you don't drive for a year, period. Remember, driving is a privledge, not a right of the people. See, even better is that we record, on video, your lack of cooperation, then we send it up with the report to the judge just so he/she can get a good laugh at a drunk a$$hole thinking he's getting one over on the law by "not doing $hit" for the police. It's always a fun process.

Who the hell said you should refuse to cooperate? All I said is that one doesn't have to participate in those road side sobriety tests.

KK

 

[CADsortaGUY]

Originally posted by: Vic
Even though he was under the 0.08% limit, he was still "under the influence," so the officer had probable cause to make an arrest and do the impound. Your brother is out the impound fees. Considering that he came a mere 0.009% from jailtime, license suspension, and thousands of dollars in fines and fees, I think he should feel lucky.

And tell your brother that the next time he's only had 2-3 beers (which is what 0.071% would be), that he should just baldface lie to the cop and say that he hasn't had anything to drink. Because telling a cop that you even had so much as one sip 6 years ago causes them to go into their hyperactive "timeshare salesperson" mode...
And for the nerds here... yes, 0.08% is too low. Most people are still unaffected at that BAC. The 0.10% level should be restored. I don't condone drunk driving, but damnit, I want to be able to take my woman out to dinner and have a single glass of wine and without be hassled, thank you very much you puritan assholes...

edit: I was NOT suggesting that anyone ever refuse the breathalyer -- that's called "implied consent" and you can lose your license on the spot.

He was NOT arrested He "failed" the Field sobriety tests at 75-80% according to what she said. And I would agree that at 75-80% she should administer the breathalyzer which he passed therefore no arrest was made. So since that potential infraction was gone the only violation she had left was the rolling stop. Does a rolling stop warrant impounding a car?

In Iowa you must consent to a field sobriety tests otherwise you will be arrested and hauled down to the clink, same as you must allow a cop to search your vehicle if they ask otherwise they will arrest you so they can search it

Now the whole reason I ask is because he obviously doensn't feel he should have to pay the impound fee but also it seems to be a gross injustice to be able to seize a person's car(impound) and search it without there being a criminal offense. He recieved a traffic citation which is not a criminal offense.

Marlin1975- thanks for the flame

ness1469- gets his ass-ripped for making a rolling stop? right

CkG

 

[austin316]

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

KK

In Ohio this will get your license a lengthy suspension. But I guess if your really tanked, maybe this is the better choice.

 

[EMPshockwave82]

Originally posted by: 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.

TECHNICALLY the cop COULD take the guy to the station and impound his vehicle if he had TRACE amounts of alcohol or none at all. that wouldnt make it right to do so but they could because it is up to the officer as to weather he/she feels that this person is safe on the road. if road and weather conditions were involved you have to factor that in as well. basically what it comes down to is he was wrong. time for him to pay up

 

[jemcam]

Originally posted by: CADkindaGUY

Originally posted by: Vic
Even though he was under the 0.08% limit, he was still "under the influence," so the officer had probable cause to make an arrest and do the impound. Your brother is out the impound fees. Considering that he came a mere 0.009% from jailtime, license suspension, and thousands of dollars in fines and fees, I think he should feel lucky.

And tell your brother that the next time he's only had 2-3 beers (which is what 0.071% would be), that he should just baldface lie to the cop and say that he hasn't had anything to drink. Because telling a cop that you even had so much as one sip 6 years ago causes them to go into their hyperactive "timeshare salesperson" mode...
And for the nerds here... yes, 0.08% is too low. Most people are still unaffected at that BAC. The 0.10% level should be restored. I don't condone drunk driving, but damnit, I want to be able to take my woman out to dinner and have a single glass of wine and without be hassled, thank you very much you puritan assholes...

edit: I was NOT suggesting that anyone ever refuse the breathalyer -- that's called "implied consent" and you can lose your license on the spot.

He was NOT arrested He "failed" the Field sobriety tests at 75-80% according to what she said. And I would agree that at 75-80% she should administer the breathalyzer which he passed therefore no arrest was made. So since that potential infraction was gone the only violation she had left was the rolling stop. Does a rolling stop warrant impounding a car?

In Iowa you must consent to a field sobriety tests otherwise you will be arrested and hauled down to the clink, same as you must allow a cop to search your vehicle if they ask otherwise they will arrest you so they can search it

Now the whole reason I ask is because he obviously doensn't feel he should have to pay the impound fee but also it seems to be a gross injustice to be able to seize a person's car(impound) and search it without there being a criminal offense. He recieved a traffic citation which is not a criminal offense.

Marlin1975- thanks for the flame

ness1469- gets his ass-ripped for making a rolling stop? right

CkG

Man, did you not read the other posts? There's a legal precedent that she has the right and the responsibility to prevent him from driving if she believes he's impaired? End of story, a judge would laugh this out and would cost your brother even more money. Tell him to own up and pay the fees and learn the lesson! If he doesn't, please make sure and tell us the outcome.

 

[911paramedic]

It's a pretty simple case.

You can indeed be too impaired to drive without being over the "legal limit".

 

[Ferocious]

You CAN be charged with DUI in most states if you blow under the limit.

The number is simply used as a guide for the officer.

(Though if you do blow below the limit AND you were charged with DUI.....quite often you can get it reduced to reckless op.)

 

[Rogue]

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

KK

Ok, what part of the above indicates to me that you meant just the road side tests? So you're perfectly fine with being transported to the station to participate in an Intox breath test, but you won't work to prevent that by doing simple testing on the side of the road? I can tell you from experience that declining to participate in testing on site will go in the report "against" you and make it even worse if you are over the legal limit. Furthermore, go ahead and wait for your BAC to keep climbing until you do exceed the limit by declining to test until you get to the station, as quite often happens. I've seen people sit for 15-20 mins. and their BAC climbs higher and higher while they wait.

 

[Zebo]

Your brother needs to take his lumps and move on. IMO she did him a favor...she could have wrote him for 'wet and reckless' and he would be unlicenced now and no car. Maybe he will learn not drink before getting behind the wheel...


Why does everyone think cops are out to get them?

 

[bunker]

His car was most likely impounded in the interest of public safety.

Who's to say he doesn't have someone drive him right back up there to pick it up.

 

[yukichigai]

If he failed the field sobriety test but passed the breathalizer all it means is that he can't be hit with a ticket for DUI. Most states have statues for driving while otherwise impared, as it were. For example, if you were driving along and a packet of hot sauce from Taco Bell got between your foot and the brake pedal just before you went to stop, thereby squirting you in the eye, you wouldn't be allowed to drive since you wouldn't be able to see for about an hour or so. (Not that you would probably try to anyway) I don't think the cop really needed to impound the vehicle but she may have either been trying to teach your brother a lesson or covering her ass in case the car got stolen. She does have the right to stop him from driving, though she has to have evidence to support it; blowing a 0.067 - 0.071 on the breathalizer along with a fail of the standard field sobriety test are probably enough to support the claim. I dunno if you can really sue or anything for unneccesarily impounding the vehicle or not, but I would bet you wouldn't win if you did.

 

[IamElectro]

I have read through this thread and all I can do is laugh it seems most people are missing the point. This dude should consider himself very lucky. He failed the FST and beat the breathilyzer by the skin of his teeth.

1st Failing the FST gave the officer the probable cause to search the vehicle "maybe there was an open container".

2nd as for impounding the car he wont beat that wrap not in a small town the cop would be praised for doing her job considering he was so close to limit on the breath test.

3rd drinking and driving is illegal the .08 limit is there because that tells an officer this person has had to much to be responsibly driving a vehicle and needs to be taught a lesson.

I live in a college town and the police dept here averages 40-60 DUI's a month and could easily do more. It scares me to think I have heard people laughing in class about how they got a DUI over the weekend that just shows you why this limit is in place. People don't want to be held responsible for thier own actions and try to place the blame elsewhere.

I know this is from Virginia but is will give you some idea as to what is with the officers actions

Just under the limit

 

[Mill]

Originally posted by: 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......

Yep, and typically the insurance charges are just as bad and most of them time you get a DUI anyway because they will get a blood test.

 

[Mill]

Oh and yeah pretty much everything Rogue, fallenhero, and tnitsuj said. Your brother should be thankful that she didn't arrest him anyway for DUI. The impounding of the car is due to officer discretion and is not something that is really a law per se.

 

[CTho9305]

Originally posted by: 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

In Pennsylvania, getting a drivers license implies consent to take a breathalyzer test. You CANNOT refuse it or you will be arrested.

Anyway, if you drink at all and drive, you deserve any punishment you are given.

 

[HappyPuppy]

I read the original post and nothin in between.

Yes, the officer had the right to impound the vehicle if he/she believed that the driver was incapable of driving safely. Your brother didn't have to "blow drunk". The officer felt that he shouldn't be driving. If he/she had allowed your brother to continue driving and he caused an accident the officer would have been found derelict and the municipality could be sued.

Sounds to me like your brother got off easy.

 

[CADsortaGUY]

OK, what you people seem to be dwelling on is the drinking factor but that isn't my question. I understand a cop can "take someone off the road for safety reasons" and even approve of what she did by doing so but what is wrong is that they can IMPOUND a vehicle and thus search it. Search and seizure without a crime being committed. He had no chance or option of calling someone(me) to come pick up his car. She just impounded it. He WAS NOT charged with a crime and only received a traffic ticket. My beef isn't with her taking him off the road - it's that she impounded the car when a crime was not committed. He was never "arrested" and he was never asked for his consent to have his vehicle searched. And in-fact, she didn't search his car until after she was ready to bring him to my place and the tow truck had shown up. What I am looking for is proof that a cop can seize your car(impound) it when no criminal charges were leveled against you.

Understand my question then respond.

Millennium - so you are saying that a cop can impound cars at their discretion without allowing alternate plans to be made if they take someone off the road even when a crime hasn't been committed?

CkG

 

[Mill]

Millennium - so you are saying that a cop can impound cars at their discretion without allowing alternate plans to be made if they take someone off the road even when a crime hasn't been committed?

CkG

In a word... yes. The car was impounded because your brother was intoxicated and not safe to drive a motor vehicle. When a car is impounded they are typically searched and inventoried, but not always. How do you know the officer has searched it? Your brother could have been taken to jail for DUI regardless of what he blew that night. If she felt he failed the field sobriety and was a danger it is pretty much a cut and dry case for reckless driving or DUI. The fact that he blew so close to the limit would have almost certainly resulted in a conviction had he been arrested and charged. You brother is a very lucky guy and you both should count your blessings. As others have stated there are numerous reasons for why they decided to impound the car. They don't have to fvcking sit around and let your brother make arrangements. Here is a strong and cold dose of reality. You brother is VERY fvcking lucky he wasn't arrested anyway, and I find it appalling that you or him would bitch about having the car impounded. If I was the officer in question, and he failed a significant portion of the field tests, I would have used the Breathalyzer evidence, my training, and knowledge(if I was an officer) in court, because I would have certainly arrested him. Not only would I arrested him, but I would have impounded his car, searched it, and made him stay in the cell until someone came to got him.

Now... that would only happen if I sensed even the slightest attitude that you just gave. Otherwise I would impound the car and drop him off like the officer did. You are lucky your brother wasn't stupid enough to have an attitude and ruin the good will and LUCK that he was already getting.

I think you need to understand that you don't have a leg to stand on, and should really just forget about the whole incident. Everything the police officer did was well within their powers(99.9% sure) in 99.9% of all states.