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  1. #1

    Default Field and Breath Test Refusal

    My question involves criminal law for the state of: All

    It is my understanding that DUI is an Opinion Arrest...with that said how are these cases prosecuted and defended when there is not any evidence such as a field sobriety or a breath/blood b.a.c. test. I understand that there will be video of the defendant driving and being stopped, etc... but let's assume there was no evidence such as horrible driving and stumbling and falling all over the place. Without any concrete evidence how are these cases prosecuted and defended??? to prove beyond resonable doubt that the defendent was indeed intoxicated?

  2. #2
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    Default Re: Field and Breath Test Refusal

    They are prosecuted based upon whatever evidence is available.

    If this is a real case, tell us what evidence is available.

    If not, the nature and amount of evidence available to the prosecution will vary by case.

  3. #3
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    Default Re: Field and Breath Test Refusal

    All is not a state.
    Arrests aren't made on opinion but probable cause.
    Not submitting to the tests makes prosecution more difficult which is why there are at least administrative sanctions for refusing tests in most states and in many it's a criminal act in its own right.

  4. #4

    Default Re: Field and Breath Test Refusal

    Quote Quoting Mr. Knowitall
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    They are prosecuted based upon whatever evidence is available.

    If this is a real case, tell us what evidence is available.

    If not, the nature and amount of evidence available to the prosecution will vary by case.
    The evidence is...

    Nothing on the video while the officer followed

    On video after stop was an open container and when officer asked how much to drink the reply was enough.

    in written report was smell of alcohol, glassy and bllodshot eyes, and unsteady on feet swaying side to side (accused had torn acl surgery less than 6 months prior), and slurred speech

    That's about it.

  5. #5
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    Default Re: Field and Breath Test Refusal

    That is sufficient in many courts. Likely, you will also lose your license if you refused to submit to a test.

  6. #6
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    Default Re: Field and Breath Test Refusal

    If you're not going to honor the terms of the forum, we can't really help you. If this is a real situation rather than the hypothetical venting, give us the state and the details.

    I've seen FSTs successfully challenged here in Virginia when there were other disabilities involved.

    Did you have a question?

  7. #7
    Join Date
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    Default Re: Field and Breath Test Refusal

    A state would help as well. One county where I worked the judges, in their jury instructions said, "Take the defendents chemical test refusal as an admission of guilt on the charge of DUI."

  8. #8
    Join Date
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    Default Re: Field and Breath Test Refusal

    Quote Quoting manyquestion
    View Post
    My question involves criminal law for the state of: All

    It is my understanding that DUI is an Opinion Arrest...with that said how are these cases prosecuted and defended when there is not any evidence such as a field sobriety or a breath/blood b.a.c. test.
    As with ANY arrest, it has to be based upon probable cause to believe a crime has been committed and that the person arrested has committed the crime. So, it's not merely the officer's opinion, but also must be based upon articulated probable cause to support that opinion or belief.

    An officer's testimony as to the objective signs of impairment observed can be sufficient to gain a conviction. In fact, in many counties that IS all they require to prosecute. One county I worked in did not require chemical tests because there were numerous well-trained officers who could testify to the observations and who had special expertise in the detection and evaluation of those under the influence of drugs or alcohol.

    I understand that there will be video of the defendant driving and being stopped, etc...
    Sometimes. But, in some states (like mine) cameras in car are the exception and not the rule.

    but let's assume there was no evidence such as horrible driving and stumbling and falling all over the place. Without any concrete evidence how are these cases prosecuted and defended??? to prove beyond resonable doubt that the defendent was indeed intoxicated?
    The court is free to weigh the credibility of the officer's observations and whether they might indicate sufficient probable cause to indicate that the defendant was impaired.

    Quote Quoting manyquestion
    View Post
    The evidence is...

    Nothing on the video while the officer followed

    On video after stop was an open container and when officer asked how much to drink the reply was enough.
    If a jury hears that, whatcha gonna bet that they interpret "enough" to mean something akin to, "Enough to get me tanked," or, "enough to get the job done and get me buzzed." That's not gonna look good for the defendant.

    Then, of course, there is the open container.

    And why did the officer stop the driver in the first place? Some bad act of driving BEFORE the camera was turned on? Something else?

    in written report was smell of alcohol, glassy and bllodshot eyes, and unsteady on feet swaying side to side (accused had torn acl surgery less than 6 months prior), and slurred speech
    Those are pretty boilerplate symptoms, but can be the objective symptoms of impairment. And there is a difference between the unsteadiness one might see in a person who has had too much alcohol and one who had ACL surgery many months ago. I suspect that this will be obvious in the video as well.

    So, in this case, you have an open container, an admission to drinking "enough" alcohol, an unsteady gait and swaying, the odor of alcohol, glassy and bloodshot eyes, and slurred speech. Sounds like a pretty decent case for impaired driving so far. The defense MIGHT be able to cast some doubt on the unsteady gait or swaying if they bring in medical experts on his ACL surgery and records of the defendants rehab, but that's probably a longshot. I suspect that a reasonable jury is likely to conclude that he is guilty even without a chemical test.
    **********
    Retired Cal Cop Sergeant & Teacher

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    Love mercy,
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    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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