Refusing a Field Sobriety Test

[cdwjava]

I assume that you are referring to case law under United States v. Martinez-Fuerte - 428 U.S. 543 (1976) where the police can detain anyone for "any reason they wish" within 100 miles of the border.

Nope. Try Mimms:

http://supreme.justia.com/cases/federal/us/434/106/

I believe you, but a citation/reference would give your statement more credence.

Specific statue? Case law?

More to the point, find a statute that says you MUST perform the SFST. I am not aware of any state that has any such law. I could not find any such law in NJ so it appears that you do not have to cooperate with the FSTs. Though, you would still likely have to get out of the car if directed.

A "professional alcoholic" like my cousin who has been driving drunk for over thirty years, will do a good job at building immunity to the obvious signs of impairment and take appropriate measures to suppress any other signs of inebriation. He never had a DUI, or was ever detained on suspicion thereof.

Some of the signs are not the kind that you develop tolerance over ... such as HGN and the way the body purges alcohol from the system (thus causing the odor we commonly associate with the odor of someone who has been drinking).

But what if the suspect DOES NOT seem impaired, what if the suspect's behavior is civilized, cordial and exhibits a demeanor that would render him/her apt enough to function normally.

If the officer is not sufficiently trained or experienced enough to observe the objective symptoms that would give rise to the probable cause necessary to support an arrest, I guess the officer would have to let him or her go.

This would obviously work against the officer. A video exhibiting the Defendant to be acting rationally will call the officer's establishment of reasonable grounds into question.

And the officer is going to know this is the case BEFORE contact ... how?

And why risk one's freedom, career, and assets simply to make it all up? While it is possible, and I imagine it occasionally happens, the risk-reward analysis would cause it to be a thumbs-down proposition.

Oh, and a DUI can be supported even without a chemical test. Cops have done this for years and will continue to do so. In one county where I used to work forced blood draws were not permitted on misdemeanors so if we had a refusal, we had no test. But, if the officer was a DRE or a well-trained officer, the case could be made rather easily. As a note, I rarely EVER use a PBT in the field and I have never lost a DUI case. I can make the case for probable cause when it exists without that particular tool, and so can many other officers.

[David K]

No. He is referring the an officer being able to demand the person exit the vehicle in order for the officer to create a safer situation for himself.

Therefore, please correct me and cite the applicable statute/case law for such circumstance accordingly. Thanks.

but what if there is an odor of booze and they fail the nystagmus test?

The nystagmus test will not be failed, because the nystagmus test (a counterpart of a coherent FST) can be refused without penalty, and refused it shall be.

but what about your argument of the professional alcoholic? It would then go to the FST's results.

Once more, the FST is assumed to be refused, and rightfully so without penalty.

there is much more than rational talk and speech that isn't slurred to not being suspected of being impaired.

so, if the cop does not have a PBT there can never be an arrest for DUI? I think you have misinterpreted something there.

Again, we are assuming a person who is a long-time alcoholic, wherein during a traffic stop a police officer lacks enough probable cause to arrest the subject, and must rely on the PBT to yield enough PC that would warrant a rightful arrest.

We are NOT discussing an obviously plastered drunk slob who can barely put the keys in the ignition, has an open container of alcohol in the vehicle, and admitted to drinking.

Again the argument is: When there is minimal reasonable grounds, minimal probable cause, and the PBT is the only last resort ultimatum that would establish enough PC for an arrest.

Obviously you can get arrested without a PBT. I've heard of cases where the subject was too drunk to even willfully blow into the breathalyzer.

Do you really think I would believe that a person who is too drunk to blow into a breathalyzer should not get arrested due to no accurate PBT reading?

[itsjustme]

My cousin has been drinking and driving for over 30 years, and a friend of mine for 15 years (with heavy alcohol use). They tell me that the paranoia of getting pulled over makes them pay even MORE attention to their driving. They never had an (at fault) accident in those years, and my cousin has been pulled over multiple times (for minor violations) over the years whilst intoxicated - the officer in every instance unable to detect sings of impairment. Eye drops, mouthwash/gum, and ventilating the vehicle by opening the windows are all countermeasures that can be used to at the very least lessen signs of impairment.

The officer smells something funny; could be alcohol breath. How does the officer prove that in court? The officer/prosecutor would have the burden of proof. Quite literally, how do you produce evidence to validate an odd smell at a certain juncture?


Correct. But police officers (have) and will continue to turn off their dash-cam for many reasons. It could be a technical reason, or they honestly forgot to turn it on at the inception of their shift, or it could be to make an encounter go off the record (that would otherwise be legally exigent in court if the dash-cam recording were revealed).

Many times an officer will turn off their dash-cam so that all evidence therein cannot be tendered in court, whereafter it would be the officer's word against yours (and we all know that the police will always have the prerogative). Very smart. As a countermeasure thereof, a personal recording will always be of avail.

Yep, I stopped drinking one year ago but I have been drinking for about 13 years before that and I have been pulled over multiple times , when i was somewhat buzzed, sometimes when i was hammered and police officer either didnt know or too lazy.

and most people dont emit booze smell. All depends when and what they were drinking. I use to drink vodka and nobody could ever smell it on me

In dash cameras is usually activated when the overhead blue/red lights are activated

and this thread brings up a good discussion because i was about to post something similar

[jk]

David K;590111]Therefore, please correct me and cite the applicable statute/case law for such circumstance accordingly. Thanks.

feel free to research it for yourself. I have confidence in my statement. It is you that wants proof it isn't correct so I'll let you find that.

The nystagmus test will not be failed, because the nystagmus test (a counterpart of a coherent FST) can be refused without penalty, and refused it shall be.

you already said it was failed. What are you talking about now?

Again, we are assuming a person who is a long-time alcoholic, wherein during a traffic stop a police officer lacks enough probable cause to arrest the subject, and must rely on the PBT to yield enough PC that would warrant a rightful arrest.

if we are going to play hypotheticals, we can change the facts of the situation to fit any need we desire.

We are NOT discussing an obviously plastered drunk slob who can barely put the keys in the ignition, has an open container of alcohol in the vehicle, and admitted to drinking.

whoops, you just gave PC plus a citable offense.

Do you really think I would believe that a person who is too drunk to blow into a breathalyzer should not get arrested due to no accurate PBT reading?

you are the one that argued that without a PBT there was no probable cause. Remember you posted this:

Without reasonable grounds, no portable breathalyzer can be (legally) administered as per NJ 39:4-50.2 (a), and without probable cause (via the portable breathalyzer), no arrest can be made.

[itsjustme]

STATE: TN

Im going to post here before i make my own thread. hopefully I can piggyback my question here since its same of nature:


I got a dui earlier this year.

-Cops said I was swerving in /out of traffic
-cops pull me over
-cop smell booze
-cops see red eyes
-cops said speech slurred.
-cop said I tripped over my self when going to police car

- I refused all test on scene
- I never admitted to drinking
- I go to jail and cop did NOT give me a BAC test

Now i will say this but ignore it now, cop did write on the report that i admitted drinking but the cop straight up lied. Not once did I admit drinking at all! But ignore that because I think he wrote that down because he knew i could beat the dui without it.

OK I never admitting drinking, and I told them my cousin was in my car drinking and spilled some beer in my vehicle so that is why my vehicle smell of alcohol.
I did not take any test at all, cop take me to jail and didnt not even do a blood test or bac test. i asked if I can take one and he said nope too late???

I ended up pleading guilty to the charge but my question is this:


Based off what I told you above, it seems like they had a weak case against me and that it should had been dismissed or I could have beaten right? Based off cop had no proof of me drinking anything since there was no blood/bac test/ no fst test. All he had on me was the smell of alcohol, red eyes,slurred speech.

[cdwjava]

Therefore, please correct me and cite the applicable statute/case law for such circumstance accordingly.

Done ... see above. (Mimms)

There are others, but that is the first and best.

We are NOT discussing an obviously plastered drunk slob who can barely put the keys in the ignition, has an open container of alcohol in the vehicle, and admitted to drinking.

As a note, MOST DUI arrests do not involve an "obviously plastered drunk slob." Most involve people that are impaired, but not blotto.

One of the best DUI aware ness ads I have seen in the past few years is the series of ads that points out "Buzzed driving IS drunk driving." Because, it is.

Most injury and fatal collisions involving DUI drivers involves a driver at or above a BAC of .15. However, many of these might seem to the casual observer to be merely "tipsy," or, if a well practiced drinker, they may appear to the untrained eye to be just fine and dandy when, in fact, they are not.

Again the argument is: When there is minimal reasonable grounds, minimal probable cause, and the PBT is the only last resort ultimatum that would establish enough PC for an arrest.

In my state the BAC on the PBT cannot generally be used to establish a specific BAC so that, by itself, would not generally be sufficient probable cause to support an arrest. In NJ this might be different - and probably is.

Obviously you can get arrested without a PBT. I've heard of cases where the subject was too drunk to even willfully blow into the breathalyzer.

Many people either won't blow or try to "trick" the machine by blowing out of the side of their mouths or blocking it with their tongue. We really do not NEED the PBT. I believe some officers use it as a crutch to support their decision to arrest or release, and it should never be used in that way. Either you have evidence of impairment, or you do not.

Now, when you have a minor and a state where they have zero tolerance laws for those under .08, then the PBT becomes valuable because it might be hard to detect a .01 or .02 BAC through the FSTs, but the PBT can catch it just fine.

uhm where did my post go?

Two posts above the one you made with this inquiry timestamped at 8:09 PM.

[jk]

and most people dont emit booze smell. All depends when and what they were drinking. I use to drink vodka and nobody could ever smell it on me

sorry but you are wrong.

In dash cameras is usually activated when the overhead blue/red lights are activated

not always true. it varies with each department and that is if there is even a camera

[itsjustme]

sorry but you are wrong.

not always true. it varies with each department and that is if there is even a camera

hence the "usually"

[David K]

Nope. Try Mimms:

http://supreme.justia.com/cases/federal/us/434/106/

Yes, but if you recall, the charges brought against Mimms were ultimately reversed.

We are assuming all requests from a police officer to exit one's vehicle during a traffic stop are made to secure the officer's welfare and safety. Let us therefore elaborate ...

Terry vs Ohio 392 U.S. 1 (1968) was the precept for Pennsylvania v. Mimms where an officer must "warrant a man of reasonable caution in the belief" that he/she elicits some kind of safety threat to the police officer in order to legally detain and henceforth rightfully request the subject to exit the vehicle.

In the case for Mimms "a large bulge under his jacket was noticed by the officer," meeting the criteria for lawful detention as per Terry vs Ohio, and empowering the arresting officer with the prerogative of rightfully requesting the vehicular exit.


Justice Marshall in his Per Curiam opinion of Pennsylvania vs Mimms held that:

However, the Pennsylvania Supreme Court reversed the conviction, holding that the officer's order to vacate the car was "an impermissible seizure." Why, you ask? Because, "...the officer could not point to objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety."

We now know that the Court held that an officer must establish "reasonable caution" to rightfully request a motorist to exit his vehicle.

In the absence of "reasonable caution," a motorist can decline an officer's request to exit his/her vehicle.

So back to the case for DUI stops/checkpoints. Surely an officer can get a better impression of the degree to which you are inebriated by having you step out of the car.

Wherefore, if the officer cannot articulate any cause for hazard, his/her request can be refused without penalty.

[jk]

then feel free to refuse the request and subsequent demands of an officer when he asks you to step out of the car and see how that works out for you. You have to remember; even if you believe the demand is not valid, it doesn't matter. What matters is what the cop and prosecution can support when you are in court fighting whatever charges are being prosecuted. You do not get to determine the validity of the demand. You get to defend yourself using an improper seizure in court. The state gets to argue their justification for the demand.

the cop does not have to justify the demand to you at the time of the demand.