Legal Loophole to Get Through DUI Checkpoints

[fonzob1]

I justifiably criticize the "reporter" who wrote the story. It says the flyer is tailored to 10 states but does not name those states, hence the "reporter" has not answered all of the questions good reporter answers in a well reported story. This is a problem I have with the internet Everyone thinks that owning a computer makes them a journalist just like owning a car makes them a driver.

CCC.

It was a news brief on a local television station. They have like a half hour to cover all of the local news for a particular region, so some things are not reported on in as great of detail. Local television news has been that way for as long as I can recall.

The now 11 states are listed on the attorney's website if you are interested to know.

http://fairdui.org/flyer/#comment-135030

 

[MacLeod]

As with many laws is the individual vs the public good. You could make a strong case that random testing at anytime acts as incentive not to drink and drive as you don't know if you might be checked so why risk it.

The question is lets say it was your father/mother/wife/husband/sister/brother etc.. That was killed due to a drunk driver would your position change on the acceptablity of random checks? Because if you don't think you can be stopped for a random check you might think what the hell I'll take the risk.

I might go so far as to say they should lower the drink drive limit to virtually zero say 10mg in every 100ml blood

 

[CorporalCaptain]

I'm curious about the flier asserting that the driver will comply with clearly stated lawful orders, but will not open the window. Would a clearly stated order to open the window somehow not be a lawful order?

 

[Alidar Jarok]

^ Probably depends on the state. I'd argue requiring someone to open a window constitutes a "search" that requires at least reasonable suspicion (and probably probable cause unless it's justified by officer safety). Typically, if there's at least reasonable suspicion for a stop, you can also simply order someone out of a vehicle for no additional reason. I don't think that would necessarily apply for a checkpoint, but I doubt there's any caselaw on it.

Also, in the commonwealth of Virginia for example, if you are behind the wheel of your parked vehicle but you are in possession of your car keys, you can be charged with DUI even if you have not yet started the vehicle. That is why sometimes you might see Americans drop their car keys beside their vehicle when they are pulled over or otherwise approached by law enforcement.

It technically hasn't reached that point. Virginia law (18.2-266) charges you with "operating" a motor vehicle, which includes having the key in the ignition but not having yet turned it to start the engine. I think the logic is broad enough to include having a key that has a button to automatically start the engine, but, thankfully, no case has gone as far as to say that merely having keys is enough.

Yeah, and at those checkpoints, they're allowed to briefly stop everyone and get their license information. However, they aren't allowed to force you to submit to a breath test, to my knowledge.

If you refuse to use a breathalyzer at the request of law enforcement, the state can suspend your driver's license.

Not quite. There are two breath tests. The first is the preliminary breath test (PBT). You have an absolute right to take or refuse the test (failure to off a PBT raises problems down the line for the prosecution's case). If you refuse the test, it can't be used against you in any way. If you take the test and you blow above a .08, that can't be used against you in court. However, if you argue you were illegally arrested, the .08 can be used to establish probable cause.

There is a separate breath test at the station called an Intoxilyzer. This test you have no right to refuse because of implied consent. Failure to take the test results in an additional charge of "unreasonable refusal." First offense is a civil penalty of a 12 month license suspension with no right to a restricted operator's license (to get to work, hospital visits, school, etc.). However, in order for the police to require you to take this test, they must have arrested you within three hours of driving, you must have been driving on a public road, and, most importantly, the police must have probable cause to suspect you have a DUI. If the police just say "hey, blow into this machine" and they have no reason to suspect you, you can refuse. If it's just the PBT (what they would have at a checkpoint) you have an absolute right to refuse.

I'll add one additional caveat: The Intoxilyzer requires a steady breath for a significant period of time. If it gets cut short, it gets counted as an insufficient sample. Failure to blow two full samples results in the test failing. Even people who genuinely want to blow into the machine but have lung issues can get charged with unreasonable refusal and have their license suspended. That's the only concern I'd have.

 

[Pingfah]

I'm curious actually, the number of road deaths in the USA held steady at 40,000 a year-ish for many decades (representing a gradual real terms decrease considering population growth) but suddenly in 2008 the number dropped by a quarter over the space of just 2 years, and has held steady at about 30,000 a year since.

What did the USA do in those years to cause this?

Given the timing, my guess would be that that's a result of the "Great Recession" of December 2007-June 2009 (and its lingering effects). Higher unemployment, people getting their cars repossessed, people unable to afford the cost of gas so they used more public transport, etc. all combining to give you much fewer drivers on the road.

That sounds highly plausible, the fact that it hasn't bounced back is some weird combination of good and bad though...

 

[cultcross]

You could also add in if you are supervising a Learner drive and are intoxicated you would likely be charged with Drunk Whilst in Charge.

True - a supervisor for a learner must be ready to take charge of the vehicle at any time and therefore must be fit to drive. They therefore can't be drunk, must not be disqualified, etc.

Of course the Police still have to prove that you had recently driven a vehicle to charge you with that offense. I.e via an Intoximeter, the road side breath test as far as I am aware is not admissable in court. As well as CCTV/witness/video recording.

Actually, no - the Drunk in Charge offence is complete from being drunk while being in charge of a vehicle. No actual driving is required. This is one of those offences where the literal interpretation is very broad, and quite different from how it is actually applied. For example, if you are in your house with your car keys in your pocket and you are trashed, you are arguably in charge of the vehicle on your driveway, and you're drunk. But you're not going to get prosecuted for it, because that would be stupid.
The defence to the charge is relevant too - it is a defence for the accused to prove there was no likelihood that they were going to drive. So if you are stood outside a pub with your car keys and get nicked for being drunk in charge, you could show you had a taxi booked and were waiting outside for it, for example.

But I suspect most people in the UK and in many other places accept the need for random breath tests, after all if you haven't done anything wrong you'll be quickly on the way. And the feeling most will have if someone gets caught they deserve everything they get, they risked not only their life but the life of others, and better to catch them before they cause an accident.

To clarify, random breath tests are not legal here - in England and Wales, at any rate. Section 163 of the Road Traffic Act allows a constable in uniform to stop any vehicle being driven on a road, without grounds or suspicion, and speak with the driver. They can then require the driver to identify themselves and produce licence, MOT and insurance. They can also submit the vehicle to a brief inspection for roadworthiness. This is pretty much the extent of the powers that can be applied randomly to any and all drivers.

To require a roadside breath test, a constable must reasonably suspect:
- That the person has been driving or is in charge of a vehicle and has alcohol in their body (any amount, not necessarily over the limit)
- That the person, while driving, committed a moving traffic offence
- That the person was driving at the time of an accident.

Once the requirement has been lawfully made, it is an offence to fail or refuse to provide a sample.

 

[Alidar Jarok]

Are two and three conjunctive or disjunctive? Traffic offense and accident or Traffic offense or accident?

 

[MacLeod]

I would say that only 1 has to apply.

For example

A Police Officer witnesses you leaving a bar and driving off.

It's not unreasonable to think that they might have been drinking

You were speeding or failed to indicate or driving in an eratic manner etc..

It's not unreasonable to think that they might have been drinking

You where invovled in a Road Traffic Accident

It's not unreasonable to think that they might have been drinking



Of course more than one could apply.

 

[fonzob1]

It technically hasn't reached that point. Virginia law (18.2-266) charges you with "operating" a motor vehicle, which includes having the key in the ignition but not having yet turned it to start the engine. I think the logic is broad enough to include having a key that has a button to automatically start the engine, but, thankfully, no case has gone as far as to say that merely having keys is enough.

Law enforcement in Northern Virginia will charge you just for having your keys. Whether that is lawful or not, they do it. That is why sometimes you will see people toss their keys out the window during a traffic stop. It is similar to how law enforcement will charge you for open container if you have closed alcohol containers sitting in your seat instead of in the trunk. It happens all the time, and you have to prove your innocence against the word of an officer.

Not quite. There are two breath tests. The first is the preliminary breath test (PBT). You have an absolute right to take or refuse the test (failure to off a PBT raises problems down the line for the prosecution's case). If you refuse the test, it can't be used against you in any way. If you take the test and you blow above a .08, that can't be used against you in court. However, if you argue you were illegally arrested, the .08 can be used to establish probable cause.

There is a separate breath test at the station called an Intoxilyzer. This test you have no right to refuse because of implied consent. Failure to take the test results in an additional charge of "unreasonable refusal." First offense is a civil penalty of a 12 month license suspension with no right to a restricted operator's license (to get to work, hospital visits, school, etc.). However, in order for the police to require you to take this test, they must have arrested you within three hours of driving, you must have been driving on a public road, and, most importantly, the police must have probable cause to suspect you have a DUI. If the police just say "hey, blow into this machine" and they have no reason to suspect you, you can refuse. If it's just the PBT (what they would have at a checkpoint) you have an absolute right to refuse.

I'll add one additional caveat: The Intoxilyzer requires a steady breath for a significant period of time. If it gets cut short, it gets counted as an insufficient sample. Failure to blow two full samples results in the test failing. Even people who genuinely want to blow into the machine but have lung issues can get charged with unreasonable refusal and have their license suspended. That's the only concern I'd have.

I am skeptical about all that because I had an attorney tell me otherwise once. Is it your understanding that you don't have to perform field sobriety tests either? If so, can they not arrest you if you refuse?

 

[Alidar Jarok]

I would say that only 1 has to apply.

Well, I think that makes intuitive sense, but I figured it was a good idea to ask a person who probably knows the answer to clarify. Certainly, one or the other could be sufficient in this country depending on the specific facts.

Law enforcement in Northern Virginia will charge you just for having your keys.

Can you cite any specific examples?

I am skeptical about all that because I had an attorney tell me otherwise once. Is it your understanding that you don't have to perform field sobriety tests either? If so, can they not arrest you if you refuse?

Keep in mind I am a Virginia attorney (I was a Northern Virginia attorney recently). Although, as a disclaimer, my post isn't intended as legal advice.

I'll answer the questions in reverse order. You can't be arrested for refusing to perform field sobriety tests, in the sense that it isn't a crime to refuse. If an officer arrests you, it's because they believe they have probable cause to believe you were operating a motor vehicle while intoxicated. Given that, you aren't legally required to perform SFSTs and the most high profile example of this I can think of resulted in an acquittal. In my own experience, I'm one and one, although there were other facts that complicated things.

The interesting question is whether refusal to perform SFSTs can be used to establish probable cause for an arrest. My personal belief is no. There's a case that assumed it couldn't, but didn't hold it. In my own experience making that argument, I lost. I ultimately won on the DUI, but the defendant was convicted of the unreasonable refusal.

Regarding the Preliminary Breath Test, my source is this. Compare that to implied consent and unreasonable refusal. The charge of unreasonable refusal only applies to 18.2-268.2, not to 18.2-267.

 

[fonzob1]

Can you cite any specific examples?

I was threatened with it once myself because I was sleeping in my car and the keys were not outside the vehicle on the ground.

Plus there is this...

http://www.lawqa.com/qa/can-they-still-charge-me-for-dui-if-officer-did-not-see-me-driving

Even when conviction is unlikely, the possibility of getting charged or arrested is a real pain in the ass.

 

[SeerSGB]

Try the shit in the OP in TN and you're fucked: TN Law

) Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person's blood, a test or tests for the purpose of determining the drug content of the person's blood, or both tests. However, no such test or tests may be administered pursuant to this section unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, or was violating § 39-13-106, § 39-13-213(a)(2) or § 39-13-218.

In short, we can't say "no" in TN.

And that's ignoring "Open Container" is grounds to arrest you in TN. You don't even have to have a BAC, just have a open can in the car somewhere.

 

[Alidar Jarok]

Can you cite any specific examples?

I was threatened with it once myself because I was sleeping in my car and the keys were not outside the vehicle on the ground.

Plus there is this...

http://www.lawqa.com/qa/can-they-still-charge-me-for-dui-if-officer-did-not-see-me-driving

Even when conviction is unlikely, the possibility of getting charged or arrested is a real pain in the ass.

Regarding that link, I have two points: One, none of those attorneys are talking about Virginia law. More importantly, they're answering a different question. The question is whether the officer needs direct evidence that you were operating a motor vehicle. They don't, they can prove it through circumstantial evidence. Even if they didn't see you driving the car, they can still prove that you had been. But you can be down the street walking to the store and they can still convict you.

Anyway, whether just having keys are enough, here is my full answer: "Operate" is defined as having "actual physical control" over the motor vehicle. The farthest I'm aware of it going is Floyd v. Commonwealth, where the key was in the ignition and turned part way but the engine wasn't started. The court said "manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion" is operating. On the other hand, in Stevenson v. Falls Church, the defendant was passed out behind the wheel with the key in the ignition, but there was no evidence the key was turned into an on position. Therefore, he was not operating the motor vehicle. I think that second case should answer the question.

 

[SeerSGB]

Looks like TN might be getting stricter on cars and drinking.

Although cities might have bans on passengers drinking alcohol in cars, state law still allows anyone but the driver to drink at their leisure. But bills from Sen. Randy McNally, R-Oak Ridge, and Reps. Jon Lundberg, R-Bristol, and John Ragan, R-Oak Ridge, would make it illegal for anyone to drink alcohol in a moving car.


The same committee is also discussing a bill from Sen. Frank Niceley, R-Strawberry Plains, and Rep. John Holsclaw, R-Elizabethton, that would make it illegal for anyone convicted of three or more DUIs to purchase alcohol in Tennessee.

The first one would be pretty simple to enforce. Pulled over, someone drinking the car, you cite them. The second one would at the least, I'm thinking, require a public retailer database or some sort of retailer protection from prosecution seeing as you have no way of knowing the number of DUIs a person may or may not have.

 

[cultcross]

I would say that only 1 has to apply.

Well, I think that makes intuitive sense, but I figured it was a good idea to ask a person who probably knows the answer to clarify. Certainly, one or the other could be sufficient in this country depending on the specific facts.

Yeah sorry that wasn't clear, it's an either/or test. Only one of those three conditions need apply. Interestingly though, only the first (suspicion of alcohol) comes with an automatic power of arrest for failing to provide. In the latter two cases, in the absence of suspicion that the person has actually been drinking, or any other arrest necessity, the normal procedure would be to report for summons by the roadside. The logic being, I suppose, that there is no risk to the public of them driving off if you don't suspect they are actually impaired.

Another unusual bit of law related to drink driving is that normal custody time limits don't apply in the same way - if you fail the evidential breath test, the police can hold you in custody until you pass it - i.e. until you could drive legally. For someone over Xmas who blew 152 (the limit being 35), that was quite a long wait.

 

[Alidar Jarok]

I don't suppose you would know what 152 translates into as blood alcohol percentage by volume? More a curiosity. The legal limit in the US is .08%, so I wonder how that compares to 35.

 

[fonzob1]

Can you cite any specific examples?

I was threatened with it once myself because I was sleeping in my car and the keys were not outside the vehicle on the ground.

Plus there is this...

http://www.lawqa.com/qa/can-they-still-charge-me-for-dui-if-officer-did-not-see-me-driving

Even when conviction is unlikely, the possibility of getting charged or arrested is a real pain in the ass.

Regarding that link, I have two points: One, none of those attorneys are talking about Virginia law. More importantly, they're answering a different question. The question is whether the officer needs direct evidence that you were operating a motor vehicle. They don't, they can prove it through circumstantial evidence. Even if they didn't see you driving the car, they can still prove that you had been. But you can be down the street walking to the store and they can still convict you.

Anyway, whether just having keys are enough, here is my full answer: "Operate" is defined as having "actual physical control" over the motor vehicle. The farthest I'm aware of it going is Floyd v. Commonwealth, where the key was in the ignition and turned part way but the engine wasn't started. The court said "manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion" is operating. On the other hand, in Stevenson v. Falls Church, the defendant was passed out behind the wheel with the key in the ignition, but there was no evidence the key was turned into an on position. Therefore, he was not operating the motor vehicle. I think that second case should answer the question.

Either way, I think the law is B.S. If you're going to do the responsible thing and sleep in your car, law enforcement shouldn't screw with you. Someone may want to turn on their vehicle for heat.

 

[MacLeod]

I don't suppose you would know what 152 translates into as blood alcohol percentage by volume? More a curiosity. The legal limit in the US is .08%, so I wonder how that compares to 35.

Well the 35 is just one measurment and I'm going to say that's the breath test.

Which in the UK (except Scotland which is 50 micrograms) it's 35 micrograms per 100ml of breath. So a reading of 152 would be over 4 times the legal limit

You also have 80milligrams (except Scotland which is 50 milligrams) per 100ml of blood (Which I believe would match how the US would express it)

And for urine is 107 micrograms (67 for Scotland) per 100ml

 

[Alidar Jarok]

Yeah, I looked it up. It's usually grams per liter, so .08 grams per 100 ml. That would be 80 milligrams, it's just never expressed that way.

It's the 35 that threw me off. Here, it's .08 grams per 210 liters of breath. I bet the math works out the same, but I've never heard it expressed differently.

 

[BillJ]

I just don't see driving as something that is (or should be) a Constitutional right. If one can't obey various state laws then they should give up their cars and find another way to get around.