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  1. #11
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    DREWCREW has a point,

    I have been pulled over few times because once they said my license plate light was not working but as soon as officer leaves I check and its working just fine. So it is possible that the officer used that BS excuse to pull you over , probably was out fishing

    The officer made it hell for him for no reason. The offficer had no grounds, seems that way, to even ask him to take a fst and breath test but then again drewcrew admitted to drinking which was his fault,maybe that is cause for a officer to administer fst and breath test.


    If the officer ask if i was drinking I would had simply said NO, then he would had said nothing at all, then i would had said NO again.

    I also do believe drewcrew was killing time to allow his bac to go down when he was reading that doc

    and PTPD22
    Why would you go with the dui chagre if he blew below the legal limit and he was not speeding swerving or anything that you can articulate a dui. I mean you need some good proof that the driver was not fit to drive if you were to charge him when he was below the limit or the judge and da would have a word with you

  2. #12
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    Quote Quoting itsjustme
    View Post
    and PTPD22
    Why would you go with the dui chagre if he blew below the legal limit and he was not speeding swerving or anything that you can articulate a dui. I mean you need some good proof that the driver was not fit to drive if you were to charge him when he was below the limit or the judge and da would have a word with you
    As was pointed out in another post, just because the BAC is below .08 does not mean that the person is not guilty of impaired driving. Here in Washington State, over .04 is the presumptive limit for a commercial driver...and OP admits he was over that limit. But, again, it is not the "legal limit," it is the PRESUMPTIVE limit. That means that, if you are over .08, there is an automatic legal presumption that you are impaired. Below that, it just means that the state has to articulate the impairment.

    As I said in my first reply, the OP himself gives some very good articulable cause to charge him with the DUI. Since he HAD been drinking, I have no doubt that the officer could smell it...remember it was a snow storm. So, I doubt OP had the windows down to air out the car before the stop. The OP was immediately insulting and disrespectful to the officer..."do you make a habit of destroying evidence?" That shows lowered inhibitions and judgment...Both indicators of impairment. OP failed the horizontal gaze nystagmus test. As I previously said, that all by itself is about 70% accurate indicator of impairment. OP stopped at an intersection with no stop sign or signal...an indicator of impairment. As I also said before, based on my experience, I think it is likely that it was OP who was mistaken about the street he was on, not the cop...another indicator of impairment. His transparent shenanigans to kill time so his BAC could go down...both an indicator of impairment AND an indicator that he KNEW he was impaired.

    And all that is without even being there to see physical indicators such as droopy eyelids, slack facial expression, unusually slow and deliberate movements, unusually slow and deliberate speech, unusual attention to walking, walking in a weaving path or a staggering gait, lack of normal dexterity in fine motor skills, inability to divide attention, inability to maintain mental focus...etc., etc., etc. If the officer saw these, he wouldn't tell OP about them so OP wouldn't know to refute them here...but, I'd bet $100 that some of those indicators were there to see.

    In my opinion, again based just on OP's version of events, the officer had more than enough to show impairment. Many cops don't have the confidence in their ability to articulate these indicators. So, they won't make the DUI arrest without the presumptive BAC. But, it really isn't hard to see when someone is impaired...we've all been doing it since we were in high school. I'm sure you can tell when your buddy is "a little buzzed." A person does not have to be anywhere near "falling down drunk" for the average person to recognize they have "had a couple." Guess what? The fact that you can recognize it shows impairment.

    It is the putting it down in writing, so someone who wasn't there can see the impairment too, that is challenging. So, yeah, I think the OP got off lucky with a cop that knew (correctly) that he had a DUI, but didn't have the experience and/or confidence in his ability to articulate it.

    I've made many arrests of impaired drivers who were under the presumptive limit. Often with no more articulable signs than the OP himself states he showed. And, yes, the DA did "have a word" with me. The word he had with me was , "great job."

  3. #13
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    Itsjustme Thanks man for not being like almost everyone else on here. All you cops on here can't say that you've never gone fishing for a dui. I gaurentee that all of you have done it atleast once.

    PTPD22 This is ridiculous. You are so blinded for you love of police that you can't even read. I said that in the report the officer said that I was stopped at an intersection. Which was the wrong intersection. The intersection he said I stopped at had no sign or light so why would I stop. Thats what I said. I was not confused about which intersection I was stopped at. I had been driving those streets for 20 years. I know the streets and I wasn't stopped at an intersection with no light or sign.
    You don't think that snow going into my eyes during a snow storm would cause a nystagmus? or uncontrollable eye movement. The only reason that I was insulting to him is because he was in the first place. I don't care if you have a badge and a uniform on if your an asshole your still an asshole. I simply asked in a polite way when I got out of the car why I was getting out of the vehicle. Now I know you don't believe that I was polite when I asked this because you can't look at anything objectively. The only reason I keep checking this post is to see what B.S. you say next.

    Quote Quoting PTPD22
    View Post
    The OP was immediately insulting and disrespectful to the officer..."do you make a habit of destroying evidence?" That shows lowered inhibitions and judgment...Both indicators of impairment."
    He was immediately insulting and disrepectful to me does that mean he as impaired? seriously so every time someone is a smart ass (because thats what I was being when I said that) then they must be impaired?

    As far as you giving dui's to people under the limit how many of those were thrown out? I bet a lot. I'm sure anyone with a good lawyer beat those charges.

  4. #14
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    Quote Quoting drewcrew73
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    All you cops on here can't say that you've never gone fishing for a dui. I gaurentee that all of you have done it atleast once.
    LOL. Ok, like I said before, as far as I know, I am the only cop that has replied to your post…yet, most posters here seem to agree that your demeanor left something to be desired.

    Have I ever “gone fishing” for a DUI. You can bet your butt I have! I do it almost every night. But, that is MUCH different than saying I’m willing to falsely accuse and arrest someone out of spite because I was looking for a DUI and “failed” because the person turned out to not be actually drunk. That accusation is patently ludicrous. If the person shows no signs of impairment, I deal with the issue that prompted the stop and throw my line back in the water for a real DUI.

    Quote Quoting drewcrew73
    View Post
    PTPD22 This is ridiculous. You are so blinded for you love of police that you can't even read. I said that in the report the officer said that I was stopped at an intersection. Which was the wrong intersection. The intersection he said I stopped at had no sign or light so why would I stop. Thats what I said. I was not confused about which intersection I was stopped at. I had been driving those streets for 20 years. I know the streets and I wasn't stopped at an intersection with no light or sign.
    Ok, yes, what you said was “why would I stop.” But, this post is the first place that you actually denied having done so. I have already explained “why.” So, let me ask you a “why” question…what would be the cop’s motivation to falsely claim that you did (risking his entire career for falsifying an official document) when he didn’t even charge you with the DUI?

    Quote Quoting drewcrew73
    View Post
    You don't think that snow going into my eyes during a snow storm would cause a nystagmus? or uncontrollable eye movement.
    No. I absolutely do not think that blowing snow will cause HGN. It may cause your eyelids to flutter or your eyes to water, but it absolutely WILL NOT cause HGN.

    Quote Quoting drewcrew73
    View Post
    The only reason that I was insulting to him is because he was in the first place. I don't care if you have a badge and a uniform on if your an asshole your still an asshole. I simply asked in a polite way when I got out of the car why I was getting out of the vehicle. Now I know you don't believe that I was polite when I asked this because you can't look at anything objectively. The only reason I keep checking this post is to see what B.S. you say next.
    Nothing in any post you have made says anything about the officer being immediately insulting to you. All you have said is that he told you to get out of the car. That is not insulting, rude, or belligerent behavior. Please explain what he said or did that insulted you to the point that you feel justified in retaliating by sarcastically questioning his professionalism and integrity.

    Quote Quoting drewcrew73
    View Post
    He was immediately insulting and disrepectful to me does that mean he as impaired? seriously so every time someone is a smart ass (because thats what I was being when I said that) then they must be impaired?
    Again, you have never said anything that shows he was insulting or disrespectful. And, no, that BY ITSELF does not mean a person is impaired. What I clearly said was that intentionally antagonizing a cop shows a diminished judgment and inhibition. And, yes, that is ONE indicator of impairment. ONE indicator is not enough. But, that one along with all the rest I mentioned is.

    Quote Quoting drewcrew73
    View Post
    As far as you giving dui's to people under the limit how many of those were thrown out? I bet a lot. I'm sure anyone with a good lawyer beat those charges.
    How many were thrown out? Zero. Out of over 500 DUI arrests I have never had one that the prosecutor did not file. I have had 2 that beat the license suspension hearing, but even those lost the criminal trial. Every single one of my DUI arrests has resulted in either a guilty verdict, a plea deal, or a deferred prosecution. And, we have some pretty good DUI attorneys around here.

  5. #15
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    1) The officer most likely established probable cause to justify the traffic stop. Any officer knows, if they follow a vehicle for long enough, they will eventually find something (however minor) to establish a legally actionable traffic stop.


    2) The officer's demand for you to exit the vehicle may have been invalid.


    In Terry vs Ohio 392 U.S. 1 (1968) and Pennsylvania v. Mimms 434 U.S. 106 (1977) the Court held that 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.

    Wherefore, it is reasonable to conclude that if the police officer cannot "articulate specific reasons why the person's gestures or other circumstances caused the officer to expect more danger [State of New Jersey v. Smith, 134 N.J. 599 (1994);State of New Jersey vs Danny Mai]" then the officers request is NOT legally actionable.

    A request to exit the vehicle is made for safety reasons not as a prelude to an FST. If no safety hazard can be articulated, the demand is invalid.

    An invalid demand can be used against the officer in court for whatever circumstance. Again, "reasonable caution" is indeed a low standard. But there is still a STANDARD. The officer MUST articulate those specific reasons that he perceives to be a danger to his well-being. If the car is observably clean, empty and you don't seem to be carrying anything on you, this "low standard" becomes a lot more difficult to materialize.

    If the officer used circumstances or established probable cause to proceed with a PBT after said (presumed invalid) demand, file a Motion to Suppress with the applicable court as per the foregoing.

    3) You could have refused the Field Sobriety Test without penalty.

    An FST is ONLY a means of establishing reasonable grounds (to proceed with a PBT) and ultimately probable cause for a DUI arrest. Before an officer can legally administer a PBT (to establish PC for a DUI arrest), he/she must establish reasonable grounds that you are in some form intoxicated or have been drinking (in NJ Title 39:4-50.2 (a); I don't know the code for your state, but it should be something similar).

    - You admitted to drinking. That alone is WAY more that enough reasonable grounds to legally proceed with a PBT.
    - You stepped out of the vehicle. The officer could have made an arbitrary observation about your stance, demeanor, and/or dexterity that could establish reasonable grounds.
    - You took an FST. Even though FSTs are conducted using reasonable standards set forth by the National Highway Traffic Safety Commission, it's still just a just a means of establishing "reasonable grounds." Obviously you're going to fail an FST in one way or a another, sober or not, when it's results are based on the arbitrary observation of an officer whose sole duty is to intimidate and arrest.

    The foregoing made your BAC test refusal penalties legally actionable.

    As for your defenses, the nonoperational dash-cam, assault, failure to read the BAC preamble, failure to secure legal counsel after proper demand thereof, and other miscellaneous details are quite strong in your case and may ultimately have the case dismissed/conviction reverted.

    FOR NEXT TIME:

    You CAN refuse to exit the vehicle if the officer neglects/refuses to articulate a safety hazard.

    You CAN refuse a field sobriety test without penalty.

    Doing any of the above will most likely get you arrested (unless the officer is smart), which is the reason that the multi-billion dollar legal industry exists. Because police officers put ego ahead of law, and will continue to arrest subjects without any legal basis for doing so, ultimately in vain upon the dismissal of the case, arrest record expunction, and initiation of a lawsuit against the officer.

    I don't know what evidence you can produce against the officer, but if you believe it to be sufficient, go ahead and sue him for wrongful arrest/detention and negligent use of force and battery. Research and speak to your attorney regarding the nonoperational patrol car dash-cam. In many states, not having a dash-cam could be non-compliant with applicable statutes and would certainly help your case.

    Good Luck!

  6. #16
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    Wow, David K, you state so much misconstrued, misguided, or simply erroneous information that it is actually humorous. I bet you advise your friends that, if they put a penny under their tongue, they can fool the BAC, too. LOL. Practically your entire post is either simply wrong or goes too far.

  7. #17
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    your living in a fansty land if you think what you posted would pass in courts.
    LOL because the OP said do you make it a habit of destroying evidence? So that would make on presume lowered inhibition and judgement..LMAO try that in court
    and all cops fish, and they do risk their career because most fo the time what they did cannot be proven anyways. Im sure you all back your selfs and each other just incase. Come on, you think people here is stupid.

    whos going to prove his license plate was covered by snow? If his camera was working he would had never made that stop


    Quote Quoting PTPD22
    View Post
    As was pointed out in another post, just because the BAC is below .08 does not mean that the person is not guilty of impaired driving. Here in Washington State, over .04 is the presumptive limit for a commercial driver...and OP admits he was over that limit. But, again, it is not the "legal limit," it is the PRESUMPTIVE limit. That means that, if you are over .08, there is an automatic legal presumption that you are impaired. Below that, it just means that the state has to articulate the impairment.

    As I said in my first reply, the OP himself gives some very good articulable cause to charge him with the DUI. Since he HAD been drinking, I have no doubt that the officer could smell it...remember it was a snow storm. So, I doubt OP had the windows down to air out the car before the stop. The OP was immediately insulting and disrespectful to the officer..."do you make a habit of destroying evidence?" That shows lowered inhibitions and judgment...Both indicators of impairment. OP failed the horizontal gaze nystagmus test. As I previously said, that all by itself is about 70% accurate indicator of impairment. OP stopped at an intersection with no stop sign or signal...an indicator of impairment. As I also said before, based on my experience, I think it is likely that it was OP who was mistaken about the street he was on, not the cop...another indicator of impairment. His transparent shenanigans to kill time so his BAC could go down...both an indicator of impairment AND an indicator that he KNEW he was impaired.

    And all that is without even being there to see physical indicators such as droopy eyelids, slack facial expression, unusually slow and deliberate movements, unusually slow and deliberate speech, unusual attention to walking, walking in a weaving path or a staggering gait, lack of normal dexterity in fine motor skills, inability to divide attention, inability to maintain mental focus...etc., etc., etc. If the officer saw these, he wouldn't tell OP about them so OP wouldn't know to refute them here...but, I'd bet $100 that some of those indicators were there to see.

    In my opinion, again based just on OP's version of events, the officer had more than enough to show impairment. Many cops don't have the confidence in their ability to articulate these indicators. So, they won't make the DUI arrest without the presumptive BAC. But, it really isn't hard to see when someone is impaired...we've all been doing it since we were in high school. I'm sure you can tell when your buddy is "a little buzzed." A person does not have to be anywhere near "falling down drunk" for the average person to recognize they have "had a couple." Guess what? The fact that you can recognize it shows impairment.

    It is the putting it down in writing, so someone who wasn't there can see the impairment too, that is challenging. So, yeah, I think the OP got off lucky with a cop that knew (correctly) that he had a DUI, but didn't have the experience and/or confidence in his ability to articulate it.

    I've made many arrests of impaired drivers who were under the presumptive limit. Often with no more articulable signs than the OP himself states he showed. And, yes, the DA did "have a word" with me. The word he had with me was , "great job."

  8. #18
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    Quote Quoting itsjustme
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    Come on, you think people here is stupid.
    Some people here seem quite knowledgeable and intelligent. But, yes, some who post here are, in my opinion quite stupid...I've seen you make remarks in these forums that imply you feel the same.

  9. #19
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    Quote Quoting PTPD22
    View Post
    Wow, David K, you state so much misconstrued, misguided, or simply erroneous information that it is actually humorous. I bet you advise your friends that, if they put a penny under their tongue, they can fool the BAC, too. LOL. Practically your entire post is either simply wrong or goes too far.
    PTPD22,

    Your arrogance and narcissism is nauseatingly disgusting, and will not warrant my response thereof.

    I had successfully sued two officers in the State of New Jersey in 2006 for false arrest as I was forcibly removed upon refusing to exit my vehicle. This ultimately led to their resignation.

    TAKE NOTICE, I will refuse to entertain anything you post hereon unless you cite the applicable statues, rulings, and court opinions relevant to your argument.

  10. #20
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    Default Re: Arrested After Refusing a PBT, but Beat the DUI Charge

    Quote Quoting David K
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    TAKE NOTICE, I will refuse to entertain anything you post hereon unless you cite the applicable statues, rulings, and court opinions relevant to your argument.
    Notice taken.

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