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The Range
Law & Order
Unconstitutional but for the better good?
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<blockquote data-quote="henschman" data-source="post: 2663732" data-attributes="member: 4235"><p>I agree it is a way overblown issue. Because of groups like MADD, DUI is treated like the crime of all crimes, and it is politically impossible to get the limits raised or penalties lessened.</p><p></p><p>People frequently ask my advice for what to do if you're stopped for DUI. The answer, of course, is "it depends." As far as the standard field sobriety tests go (walk and turn, stand on one foot, etc.), I think you should always refuse. There is really no way it can help you, whether you're over the limit or not. Cops can always find a way to criticize what you do on one of these tests, or just make it up. the same goes for the horizontal gaze nystagmus test (shining a bright fukcing light in your face and having you follow an object back and forth with your eyes). Cops are not doctors, yet they are allowed by the courts to testify regarding this particular medical phenomena. You are opening yourself up to being the victim of bad science, or them just plain making $hit up, by taking this test. No matter what you are just handing them further opportunities to develop evidence and testimony that they will use to hang you by taking these tests.</p><p></p><p>The breathalyzer is another matter. Sometimes it is a good idea to take the breathalyzer. Basically, if you think you are under the legal limit, you should take it, as they will probably let you go at that point. if you think you are over the limit, you shouldn't take it. Another thing to understand about breathalyzers is that there is a big difference between the portable ones cops carry in their cars, and the big ones down at the station. The portable ones are not admissible as evidence in in court, and you will not have your license suspended if you refuse one of them. The big ones at the station are admissible, and if you refuse, you WILL have your license suspended, and will have the burden of proving to the DPS that you weren't drunk or there wasn't probable cause to think you were in order to get it back. Of course they suspend your license anyway for DUI, which is why I say you don't have much to lose by refusing the test if you think (or know) you are over the limit. By taking the test, you are just handing the cops evidence that makes you easier to convict in that situation. A DUI case based on nothing more than an officer's observations of you is a lot easier to beat than one where they have an over-the-limit breathalyzer reading.</p><p></p><p>Be aware that if they try to pin a DUI on you, EVERY cop will ALWAYS put in his report (and testify on the witness stand) that you had "red, watery, bloodshot eyes, slurred speech, and were unsteady on your feet." It is a good idea to take a picture of yourself either before you drive or as you are getting pulled over to be able to impeach this testimony and discredit the cop as a witness if it comes to that. It is also a lot harder for them to make a case against you based on this kind of stuff if you have witnesses who were with you either at the stop or just before you drove, and will testify that it isn't true.</p><p></p><p>They can take blood by force if they get a judge to sign a search warrant. They probably won't go this far unless it is a slow night or you jist really pissed them off, but if they decide to do this there isn't much you can do unless you want to have even more violence directed at you as well as further charges. Just be sure you are clear to everyone involved that you do not consent and you are doing this only under threat of violence, so they can't later claim it was a consensual jabbing of your veins if there is a problem with the warrant.</p><p></p><p>To be clear, you have the right to refuse to take any test except a blood draw pursuant to a warrant. The only one you will suffer any negative legal consequences for refusing is the big breathalyzer at the station.</p></blockquote><p></p>
[QUOTE="henschman, post: 2663732, member: 4235"] I agree it is a way overblown issue. Because of groups like MADD, DUI is treated like the crime of all crimes, and it is politically impossible to get the limits raised or penalties lessened. People frequently ask my advice for what to do if you're stopped for DUI. The answer, of course, is "it depends." As far as the standard field sobriety tests go (walk and turn, stand on one foot, etc.), I think you should always refuse. There is really no way it can help you, whether you're over the limit or not. Cops can always find a way to criticize what you do on one of these tests, or just make it up. the same goes for the horizontal gaze nystagmus test (shining a bright fukcing light in your face and having you follow an object back and forth with your eyes). Cops are not doctors, yet they are allowed by the courts to testify regarding this particular medical phenomena. You are opening yourself up to being the victim of bad science, or them just plain making $hit up, by taking this test. No matter what you are just handing them further opportunities to develop evidence and testimony that they will use to hang you by taking these tests. The breathalyzer is another matter. Sometimes it is a good idea to take the breathalyzer. Basically, if you think you are under the legal limit, you should take it, as they will probably let you go at that point. if you think you are over the limit, you shouldn't take it. Another thing to understand about breathalyzers is that there is a big difference between the portable ones cops carry in their cars, and the big ones down at the station. The portable ones are not admissible as evidence in in court, and you will not have your license suspended if you refuse one of them. The big ones at the station are admissible, and if you refuse, you WILL have your license suspended, and will have the burden of proving to the DPS that you weren't drunk or there wasn't probable cause to think you were in order to get it back. Of course they suspend your license anyway for DUI, which is why I say you don't have much to lose by refusing the test if you think (or know) you are over the limit. By taking the test, you are just handing the cops evidence that makes you easier to convict in that situation. A DUI case based on nothing more than an officer's observations of you is a lot easier to beat than one where they have an over-the-limit breathalyzer reading. Be aware that if they try to pin a DUI on you, EVERY cop will ALWAYS put in his report (and testify on the witness stand) that you had "red, watery, bloodshot eyes, slurred speech, and were unsteady on your feet." It is a good idea to take a picture of yourself either before you drive or as you are getting pulled over to be able to impeach this testimony and discredit the cop as a witness if it comes to that. It is also a lot harder for them to make a case against you based on this kind of stuff if you have witnesses who were with you either at the stop or just before you drove, and will testify that it isn't true. They can take blood by force if they get a judge to sign a search warrant. They probably won't go this far unless it is a slow night or you jist really pissed them off, but if they decide to do this there isn't much you can do unless you want to have even more violence directed at you as well as further charges. Just be sure you are clear to everyone involved that you do not consent and you are doing this only under threat of violence, so they can't later claim it was a consensual jabbing of your veins if there is a problem with the warrant. To be clear, you have the right to refuse to take any test except a blood draw pursuant to a warrant. The only one you will suffer any negative legal consequences for refusing is the big breathalyzer at the station. [/QUOTE]
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