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  1. #1

    Exclamation Officer Refused to Give Alternative Sobriety Test Despite Medical Impairment

    My question involves criminal law for the state of: Wisconsin
    I was pulled over for a suspected DUI in the middle of the afternoon and charged with an OWI based on the hear say of an 81 y/o woman. I agreed to take a breathalyzer which came back as 0.00 however that didn't satisfy the officer. He insisted I take a field sobriety test and refused to give me an alternative to the heel to toe walk and balance on one foot despite the fact I explained that I have back problems that effect my balance and therefore inhibit my ability to pass those tests. He then used the test as grounds to search my vehicle and confiscate my prescription medication, none of which were narcotic or controlled substances. I was then forced to take a blood test which they have refused to give me the results of. My question is this; I have doctor's notes that document my condition, does his refusal to give me an alternative test provide grounds to have everything that stemmed from the FSB (the search of my vehicle, the blood test, etc.) thrown out as fruit of a poisonous tree?

    I could really use some advice on this matter. Thanks in advance to anyone who can give me some insight.

  2. #2
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    Default Re: Owi-Officer Refused to Give Alternative Sobriety Test Despite Medical Impairment

    If the 81 year old woman told the police you were drunk, it's not hearsay.

    A lawyer would certainly make the case that there wasn't probable cause for the search. Where you under arrest at that point. I'm not sure what fruit was obtained that was poisoned if you say the medication was not impairing (and you were legitimately in possession of it) and you were sober.

  3. #3
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    Default Re: Officer Refused to Give Alternative Sobriety Test Despite Medical Impairment

    Hearsay is a legal term, referring to out-of-court statements offered within court proceedings for the truth of the matter asserted. What you're describing is a witness statement.

    The officer was responding to a description of your conduct, presumably your driving conduct. After pulling you over and establishing that you had no alcohol on your breath, the officer remained sufficiently concerned about your sobriety that he performed RST's and obtained a blood test. (Did the officer get a warrant for the blood test?) It's reasonable to infer that there was something about your conduct and demeanor that led the officer to believe that you were intoxicated.

    If the only evidence of your intoxication came from the FST's and you can document through medical evidence that your failure was due to your medical condition and not through intoxication, you may be able to suppress the fruits of the subsequent search and blood test on that basis. Having a doctor's note that says "thatblondchick has a back problem" isn't helpful to a determination of your sobriety or which FST would be appropriate, nor is it the officer's job to be calling doctor's offices in the midst of a traffic stop to verify the note; having a doctor's note that says, "thatblondchick shouldn't be given FST's if stopped on supsicion of drunk driving because of her bad back" would be just plain suspicious.

    From what you've told us the police didn't find anything inappropriate in the vehicle - just your prescription medications. So unless the blood test shows that you had been consuming controlled substances, or had high levels of intoxicating prescription medication in your blood, I'm not sure what evidence was obtained that is harmful to you.

  4. #4

    Default Re: Officer Refused to Give Alternative Sobriety Test Despite Medical Impairment

    Thanks for the information. The officer said that his "gut" told him something was "off", which isn't a legal reason to proceed with the course of action taken (As far as I know). I hadn't been drinking and after reading up on the laws the only thing he had to go on was my appearance, though I wasn't aware I required make up and perfectly done hair in order to operate a motor vehicle and perhaps my demeanor (I suffer from anxiety/panic disorder) after a half hour of being accused of wrong doing.

    Also, I wasn't requesting not to be given an FST but to be given one I was physically capable of performing and when stopped on a previous occassion, the officer took my condition with my back into consideration and gave me the 'Finger to Nose' and 'Rhomberg Balance Test' test to determine my sobriety. The officer did not ask for my permission to search my vehicle, did not have a warrant and did not merely look for things in plain sight, he went through my entire car including my glove compartment and console where he found my prescriptions, (one of which was for insomnia!). He then went through every bottle to determine how many pills were in each and hassled me over my prescriptions not having the correct number of pills in each bottle, however I had just moved from my father's house therefore I kept a number of pills at home in the event I forgot my bottles at my dad's, which I wasn't aware was against the law. I took my prescriptions according to the directions and was completely sober, however I have read that certain medications stay in one's system longer than others. Could this pose a problem for me?

    Thanks again for the insightful information.

  5. #5
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    Sep 2010
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    Default Re: Officer Refused to Give Alternative Sobriety Test Despite Medical Impairment

    Were you charged with some drug charge? If you were then it sounds beatable (regardless of the number of pills in the bottles). If you weren't then the "forbidden fruit" really doesn't apply. Then it's back to the evidence of the OWI. Absent any prima facie (i.e., blood/breath test) evidence the subjective evidence of the FST physical tests, especially in light of any physical disability, is probably easily challenged by any lawyer worth anything. I've seen such done in court here.

  6. #6
    Join Date
    Dec 2010
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    Default Re: Officer Refused to Give Alternative Sobriety Test Despite Medical Impairment

    i was charged with a refusal because i physically could not due a Breathalyzer due an indented chest bone. the cop was made aware of this. i did blow but could not make it register. my police report says i puffed. the law has not made proper provision for those with medical issues. it took my lawyer a yr and alot of work to get the car Breathalyzer waived. its rarely been done.
    have a dr write a report about your medical condition sometimes it takes 2 reports.

  7. #7
    Join Date
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    Default Re: Officer Refused to Give Alternative Sobriety Test Despite Medical Impairment

    Quote Quoting thatblondechick
    View Post
    I was pulled over for a suspected DUI in the middle of the afternoon and charged with an OWI based on the hear say of an 81 y/o woman.My question is this; I have doctor's notes that document my condition, does his refusal to give me an alternative test provide grounds to have everything that stemmed from the FSB (the search of my vehicle, the blood test, etc.) thrown out as fruit of a poisonous tree?
    What exactly are you trying to have thrown out? Although you can be DUI on more than alcohol, just drugs, IF you were not DUI by any acceptable method or cognitive loss, you are saying then he only charged you after he found the pills, which then he based his consclusion of law on? Am I reading that right?

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