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  1. #11
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    Default Re: .06 Dui

    Quote Quoting cdwjava
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    Actually, he is likely facing charged from our Vehicle Code ... and I am curious as well. If she faces Penal Code charges, or Health and Safety charges, then all bets are off.

    - Carl
    That makes sense.

    Getting information from a third party isn't always reliable. It would be helpful if Afronate can find out the exact charges in this case.

  2. #12
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    Default Re: .06 Dui

    Carl -

    It is rare when I would ever say that you are wrong. Technically and legally you are right; someone who blew a 0.06 and passed all the SFTS should not be getting the magic monopoly ticket. Regarding the SFTS - Only 65% to 80% of sober people pass; the more you weigh the less likely you are to pass, believe it or not. Only 45% of people can pass the SFTS on the roadside.

    There are two charges now - The Per Se 0.08 limit and the inability to perform normal functions or the "under the influence" charge. If you look at www.duiblog.com or www.madd.com you can find more information about 0.08 as well as zero tolerance. I highly recommend www.duiblog.com.

    That having been said; many officers are practicing "zero tolerance" and making the person pay the attorneys and the courts to fight it out. In many cases people will take a wet reckless or a "wet wreckless" than chance a bench or eat the costs of a jury trial.

    The police officer gets a winning ticket:
    1) HE/She usually has to show up for court. ...maybe not the initial plea, but the case. This is in addition to their patrol responsibilities so they may get to pull overtime.
    2) HE/She may get a kickback if they mention a bail bondsman. This is rare, but it happens less and less because they are "Mic'd up" and always on voice and on video when their lights are on. ...and that makes it really hard to pass SFTS.
    3) They get an extra arrest to add to their "100 in a year". Local MADD chapters provide plaques and letters, which usually make it into the file for a promotion board, based upon the amount of arrests and officer makes. MADD does not look for the number of convictions in a year, but simply the number of arrests in a year.


    With a good attorney two things will happen:
    1) You will still have the arrest on your record but will likely recieve a dismissal or will recieve a dismissal after going to "school" or a MADD meeting. Sometimes judges want people to go to school and not have another arrest in 6 months even if they are innocent. It's not diversion or probation, but is a way of a judge protecting themselves and their job on the bench.
    2) The officer will make a few extra hundred bucks that week showing up in court for the trail.

    I was a member of MADD and SADD; both organizations have done a lot to bring the problem of drinking into the limelight. Unfortunately they focus way too much on pushing for legislation that focuses on punishment and not enough on education. Yes, I know, technically a 501c3 should not be participating in political activities like that. I also know of few 501c3's that get $20-$30MM in donations and grants from the Federal Government.

  3. #13
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    Default Re: .06 Dui

    Quote Quoting usedbranflakes
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    Regarding the SFTS - Only 65% to 80% of sober people pass; the more you weigh the less likely you are to pass, believe it or not. Only 45% of people can pass the SFTS on the roadside.
    And in what peer-reviewed study did you find that little tidbit of information? I have seen many anecdotal articles and dog and pony shows at colleges put forth these stats, but I have yet to read an actual peer-reviewed study with those numbers. Since I am actually TEACHING a course on the SFSTs tomorrow (Monday) I'd like to know if there is something up to date I can add to the course.

    Sorry, but if we are talking about the proper application of the SFSTs (as presented by NHTSA), the accuracy rate is up to 91% to determine a BAC of .08+ and 93% to determine .10 and higher.

    I highly recommend www.duiblog.com.
    Which, of course, is a collection of news stories, opinion, some law, and the position of people that generally oppose DUI laws for a host of reasons. Hardly a source of unbiased research and opinion. Though, I have found the site entertaining from time to time.

    In many cases people will take a wet reckless or a "wet wreckless" than chance a bench or eat the costs of a jury trial.
    That's a decision every defendant needs to make.

    Remember, an arrest is based upon probable cause. An officer does not need to be right, he or she only needs to have probable cause to believe that a crime has been committed and that the person arrested has committed the crime (in this case, DUI). Even if later shown to be wrong, the arrest is good if based upon good probable cause - hence the reason to properly train personnel on SFSTs ... and, hence the reason I have an 8 hour training class tomorrow for that.

    1) HE/She usually has to show up for court. ...maybe not the initial plea, but the case. This is in addition to their patrol responsibilities so they may get to pull overtime.
    Out here most DUIs plead. We get more overtime for traffic tickets than DUI arrests.

    2) HE/She may get a kickback if they mention a bail bondsman. This is rare, but it happens less and less because they are "Mic'd up" and always on voice and on video when their lights are on. ...and that makes it really hard to pass SFTS.
    Wow! What state are you in? That officer wouldn't be employed long in virtually any agency out here! In fact, receiving a "kickback" would likely be illegal as well as a violation of policy!

    3) They get an extra arrest to add to their "100 in a year". Local MADD chapters provide plaques and letters, which usually make it into the file for a promotion board, based upon the amount of arrests and officer makes. MADD does not look for the number of convictions in a year, but simply the number of arrests in a year.
    Yeah, we get those plaques - and pins, too. The officers would be making those arrests anyway.


    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

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

  4. #14
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    Default Re: .06 Dui

    First, allow me to say thanks for all that you do, Carl. Your work is greatly appreciated.

    Quote Quoting cdwjava
    View Post
    And in what peer-reviewed study did you find that little tidbit of information? I have seen many anecdotal articles and dog and pony shows at colleges put forth these stats, but I have yet to read an actual peer-reviewed study with those numbers. Since I am actually TEACHING a course on the SFSTs tomorrow (Monday) I'd like to know if there is something up to date I can add to the course.
    Sorry, but if we are talking about the proper application of the SFSTs (as presented by NHTSA), the accuracy rate is up to 91% to determine a BAC of .08+ and 93% to determine .10 and higher.
    It wasn't a Peer reviewed study, but was actual figures from the NHTSA for all but the 45%; that was from my college days. I can try to find Peer reviewed studies that are not performed by PhDs at colleges and not performed by State or Government funded programs; only neutrally funded studies will truly be unswayed by politics.

    The three tests (One Leg Stand, Horizontal Gaze Nystygmus (I know I misspelled that), and Walk and Turn) are 81% accurate when all three are combined. The most accurate is one of the easiest to perform; the HGN. It is 77% accurate according to the documents I studied in 1993 when I was preparing to wear the badge. Granted, I only had a B average and was not a Straight-A Trooper by any stretch. I had 3 jobs at the time I was in school. Now, things may have changed since 1992/1993. The 45% figure was something we had in our notes; it was imperative to get a "fat boy" Alcosensed at the scene before and after the SFTS because attorneys could fight the OLS and WAT because overweight people are top heavy; you also don't want them tilting their head backwards if they are drunk.
    ...but the attorneys could not fight the HGN, even on a Fat Boy! My understanding is that these tests have not changed in 20 plus years. Is that correct?


    Remember, an arrest is based upon probable cause. An officer does not need to be right, he or she only needs to have probable cause to believe that a crime has been committed and that the person arrested has committed the crime (in this case, DUI). Even if later shown to be wrong, the arrest is good if based upon good probable cause - hence the reason to properly train personnel on SFSTs ... and, hence the reason I have an 8 hour training class tomorrow for that.
    Thanks for taking the time to teach the troopers to properly apply the SFTS. It also is good because it provides a refresher. I have seen a few of the brothers in blue botch the HGN on the stand, but knew they did it right by the roadside. ...and they likely did it quite well.


    Out here most DUIs plead. We get more overtime for traffic tickets than DUI arrests.
    If you need some OT, move to Houston. I lived there for 3 months working a corporate security gig. Several of the top DUI officers made near $200k.
    http://www.thenewspaper.com/rlc/news...D=1090&m=print
    http://www.chron.com/disp/story.mpl/front/3812910.html

    Wow! What state are you in? That officer wouldn't be employed long in virtually any agency out here! In fact, receiving a "kickback" would likely be illegal as well as a violation of policy!
    I am actually not in the U.S. right now, but I know of kickbacks being accepted from bondsmen in GA, NC, and WV. I also know that it is decreasing greatly after oversight from MADD. Give those men and women an Access Database and they can do amazing things. Tracking arrests, conviction percentages, appearances of certain officers in front of certain judges, and attorneys with higher win percentages in front of certain judges. ...and, of course, who bonded out the DUI suspect and the relation of bondsmen to officers.

    Wake County, for example, will not let an officer make a reference to a specific bondsman, but will allow them to open the page to bail bonds if the suspect is too innebriated to do so.

    MADD actually pushed several counties in GA to start DUI courts; they have had good success. MADD in NC seeks punishment with a dash of treatment. MADD in GA seeks a heaping helping of treatment with a sprinkle of punishment. The recidivism rate for DUIs in some Georgia counties, such as Dekalb (Atlanta) and Chatham (Savannah), has decreased since the DUI courts were put into place. I think they have done the same in Maryland with the "PBJ program", again, lowering the number of people who reoffend.

    Yeah, we get those plaques - and pins, too. The officers would be making those arrests anyway.
    If I were working as a police officer I would do my job. But I would also have a family and chase anything that could help me get promoted.

    I am trying to find the old Washington Post article, but in D.C. they arrested a lady on a 0.03! Eventually there was a big fuss where MADD actually backed down from "Zero Tolerance" and "You Drink, You Drive, You Lose" was changed to "You Drink, You Drove over the limit, You Lose" and "Over the Limit, Under Arrest"

  5. #15
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    Default Re: .06 Dui

    Quote Quoting usedbranflakes
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    The three tests (One Leg Stand, Horizontal Gaze Nystygmus (I know I misspelled that), and Walk and Turn) are 81% accurate when all three are combined.
    The number you cite is from 1981 based upon the initial results of NHTSA's implementation of initial SFSTs. A 1998 study increased this success at .10 to 91%. The increase was attributed to 17 years of standardized training and experience. Three additional validation studies conducted between 1995 and 1998 resulted in results of 93% and 95% for a BAC of .10 and a 91% correct evaluation of .08 or higher.

    The most accurate is one of the easiest to perform; the HGN. It is 77% accurate according to the documents I studied in 1993 when I was preparing to wear the badge.
    Hence the reason the tests are performed as a battery. Individually, their results vary but are less than 80% ... with each additional test, the reliability rises - with the highest possible result being when the three are conducted as the SFST battery.

    My understanding is that these tests have not changed in 20 plus years. Is that correct?
    In general, the tests haven't changed, but the standardization and training has improved a great deal. It used to be that officers were presented with this training once - in the academy. Now, in many states (certainly in mine) training is ongoing.

    If you need some OT, move to Houston. I lived there for 3 months working a corporate security gig. Several of the top DUI officers made near $200k.
    That's not enough money to get me to move to Texas.

    I am actually not in the U.S. right now, but I know of kickbacks being accepted from bondsmen in GA, NC, and WV.
    In those states, I'm not TOO surprised, though I suspect policies or laws are being broken.

    If I were working as a police officer I would do my job. But I would also have a family and chase anything that could help me get promoted.
    I never chased anything that would get me promoted. Out here, I have found that being honest, diligent, and competent does the job fine. I was never "officer of the year" was never the DUI arrest poster child, nor the drug arrest poster child ... though I did bust a child prostitution ring, work gang and juvenile crimes, and implemented the first ever Truancy Abatement program in San Diego County, so I made my own mark without having to make any compromises.

    I am trying to find the old Washington Post article, but in D.C. they arrested a lady on a 0.03!
    Was she impaired? Was there drugs on board?

    I have arrested people for DUI with BACs of .00 ... they had drugs on board, but the BAC was zero. The numbers do not tell the whole story. And my wife is one of those people who is impaired after a couple of glasses of wine, so they ARE out there.


    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

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

  6. #16
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    Nov 2007
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    Default Re: .06 Dui

    Carl -

    $172k is a lot of money...but that probably meant he was pulling 80 hour weeks between patrol and court; not fun.

    Thanks for the updated info on the tests. I went through learning the SFST battery once. Granted, I am not an officer and am ineligible to wear a badge in most cities for 5 more years because of my DUI. I would expect an officer with 17 years of experience to have a near-100% judgement call even before the person looks at them for the HGN! ...sorry, high standards.

    The lady with the .03 was not a DWI-Drug, just got nailed by an overzealous officer. She actually aced her SFTS, but the officer "smelled alcohol." Which we know is a misnomer. He smelled the fermented grape juice and tannins on her breath. She was just 0.03 and the officer was enforcing a "zero tolerance" law. Apparently she did very well on her SFTS according to several follow-on articles.

    Linkage:
    http://www.washingtonpost.com/wp-dyn...101101968.html

    D.C. has since changed their laws (for unrestricted drivers 21 and over) to 0.08 or over, automatic arrest on the per se limit, even if SFTS are passed; 0.05 - 0.079 is the officer's discretion, and relies upon pass/fail of the SFTS; below 0.05 is not arrestable. It actually was a "business decision" for D.C. more than a position which was studied.

    It sounds like you have had a great career on the beat and as a detective. It's good that CA has you passing your abilities on to other officers that you supervise. We could use more people like you out there.

  7. #17
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    Default Re: .06 Dui

    Quote Quoting usedbranflakes
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    I would expect an officer with 17 years of experience to have a near-100% judgement call even before the person looks at them for the HGN! ...sorry, high standards.
    I find it to be a very accurate test. But, I have seen good studies that tell me that even well-trained officers can make a mistake on this test, so even I do not rely on it solely.

    The lady with the .03 was not a DWI-Drug, just got nailed by an overzealous officer. She actually aced her SFTS, but the officer "smelled alcohol." Which we know is a misnomer. He smelled the fermented grape juice and tannins on her breath.
    The odor of alcohol is not an indicator of impairment or intoxication - merely the presence of alcohol being processed out of the body. Had the officer phrased it properly, he would have ignored the "breath" and indicated, instead, the odor of an alcoholic beverage emanating from her person. This purge of alcohol is very distinct and nearly impossible to mask. Breath alcohol is merely a bonus.

    And, again, I have to ask, how do you know she "aced" her FSTs? If she did pass them, and she was still arrested, I would contend that the arrest was likely without probable cause and the officer and the agency likely settled out of court for a pretty hefty penny.

    D.C. has since changed their laws (for unrestricted drivers 21 and over) to 0.08 or over, automatic arrest on the per se limit, even if SFTS are passed; 0.05 - 0.079 is the officer's discretion, and relies upon pass/fail of the SFTS; below 0.05 is not arrestable.
    BAD practice. It sends a message that you can gamble with drinking and driving, hoping that you will blow before .05. Plus, a drug induced DUI will ALWAYS blow below .05 unless the driver was using both drugs AND alcohol. So, I doubt this was quite the absolute practice as presented here.

    As it stands in most states, .08+ is the 'per se' limit at which impairment is presumed and does not need to be shown. From .05 through .079 (under .08) the presumption is "neutral" on the issue of impairment, and generally must be demonstrated by a preponderance of the evidence (note: 'preponderance' is MY term, not the legal standard). A BAC of UNDER .05 lends itself to a presumption of sobriety - but, it is a rebuttale presumption, and not an automatic status.

    It sounds like you have had a great career on the beat and as a detective. It's good that CA has you passing your abilities on to other officers that you supervise. We could use more people like you out there.
    Fortunately, I am not unique.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

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

  8. #18
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    Default Re: .06 Dui

    RE "Aced":
    It was on the news where her attorney went over the police report. The prosecutor was attempting to mount what I am calling the "Yoga Defense". They noted that the reason she did so well was not because she was sober, but because she performed Yoga.
    ...this was an interesting case.

    When are they going to lower the DUI standard to .05? I have seen legislation being tossed around some of the states, but nothing on the Federal level yet. ...and that is where the drive will have to be. Some states lower the DUI threshold for a 2nd-time offender to .05 or .04, but nothing about the initial offender.

    Granted, we also have to ask "When does impairment really start?" Does it start at 0.02, 0.04, 0.08. I can't say that I agree with the old study that showed it at 0.15, but that was impairment back then. Today the younger generation appears to be taller (and a bit chubbier in some cases), so will the change in height and the amount of sway possible have a change on impairment? ...and then there is state dependent learning. I actually read a study where someone at .12 could pass the SFTS and could not pass them stone-cold sober. They were even able to pass the HGN, which is not something that we can train our eyes to do. It was just a university study in a controlled (non-driving) environment.

  9. #19
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    Default Re: .06 Dui

    Quote Quoting usedbranflakes
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    RE "Aced":
    It was on the news where her attorney went over the police report. The prosecutor was attempting to mount what I am calling the "Yoga Defense". They noted that the reason she did so well was not because she was sober, but because she performed Yoga.
    ...this was an interesting case.
    When I was down south, we had Marines that could do quite well on most the FSTs ... they couldn't beat the HGN, though.

    When are they going to lower the DUI standard to .05?
    I doubt you will see it happen.

    Granted, we also have to ask "When does impairment really start?" Does it start at 0.02, 0.04, 0.08. I can't say that I agree with the old study that showed it at 0.15, but that was impairment back then.
    I'd say that the evidence is pretty good that it physiologically starts at just under .02 (can't argue with science) but that it cannot generally be measured by an evaluator very easily until about .03.

    Today the younger generation appears to be taller (and a bit chubbier in some cases), so will the change in height and the amount of sway possible have a change on impairment?
    Not really. BAC is based upon a percentage of alcohol by volume, not a static amount. So taller and heavier just means that more alcohol will be required to achieve a specific BAC.

    I actually read a study where someone at .12 could pass the SFTS and could not pass them stone-cold sober. They were even able to pass the HGN, which is not something that we can train our eyes to do. It was just a university study in a controlled (non-driving) environment.
    There is an exception to everything. Fortunately, the legal system is not based on whether or not it is POSSIBLE for something to have happened. Therefore, the case has to be proven beyond a REASONABLE doubt - not beyond ALL doubt.

    - Carl
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

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

  10. #20
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    Nov 2007
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    Default Re: .06 Dui

    Thanks so much for the information and feedback!!

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