What if you refuse a breathalyzer?

[gopherpuckfan]

Is that standard for the penalty of a refusal? Or are you making them go to jail simply because they defied you and the state's "authority"?~

It's not a personal vendetta against them.

They're going to jail because they just committed a Gross Misdemeanor crime by refusing to test. When we were using the Intoxilyzer 5000 machine, if I had a test result printout that showed their DWI offense level was anything higher than a Misdemeanor 4th Degree DWI, they'd go to jail. A 4th Degree would get a bail release slip with a court date printed on it and I'd release them to a sober party. Now, since we have to send the urine or blood off to the lab and wait weeks for a result, I release them to a sober party. If they refuse or can't get a hold of a sober party to pick them up, they get booked into jail.

I book everyone into jail for all Gross Misdemeanors (GM) or Felonies. If I stop a car and the driver's license is Cancelled-IPS (Inimical to Public Safety), that's a GM and they go to jail. If their license is Cancelled/Revoked/Suspended for any other reason, that's a Misdemeanor and they get a ticket and go on their way. If they're unable to provide current proof of insurance and it's the 3rd time in 10 years that they'll be convicted of it (based on their driving history), it's a GM and I take them to jail. If it's a misdemeanor No Insurance offense (they admit they don't have insurance) and I see either one or no priors in the past 10 years, they get a ticket and go on their way (minus their impounded vehicle).

That's how I've operated since the day I was hired.

[Jks9199]

DUI is section 18.2-266 of the Code of Virginia. Intoxication can be inferred by either a per se Blood Alcohol Content (BAC) greater than .08 g/210 liters breath or .08% mass by volume (conveniently, the ratio between BAC in breath and percentage is 1:1 so the numbers are interchangeable), or by other evidence such as performance in field sobriety tests.

Under Virginia's Implied Consent laws (18.2-268.2 to 18.2-268.4), by choosing to drive on the highways (which includes any public roadway, not just the interstates), you have consented to chemical tests to determine the BAC (or any other drug content) if you are arrested for DUI. This gets around the 4th Amendment; you have already given consent. You will do a breath test, unless the arresting officer has reason to believe that you're under the influence of something other than alcohol, or the breath test is unavailable for some reason (documentable inability to perform the test -- not very easy!, I've had peopel with severe asthma, Bell's Palsy, and other conditions successfully complete the test personally, no breath test device available, or injuries). If you refuse, it's a separate offense and a separate punishment, including a separate license suspension.

How polite you are or are not doesn't matter. You drove, you got arrested -- you do the breath test or you collect an extra charge. Either way, you're locked up until the deputies feel you're sober. And your license is suspended for 7 days.

Let me outline a typical, non-injury DUI arrest in Virginia...

An officer encounters the driver of a vehicle, and the officer develops the suspicion that the driver is drunk. The cop smells the odor of alcoholic beverages, or other indicia of intoxication. The cop asks the driver to perform some field sobriety tests. The driver's performance on those tests is also consistent with intoxication, and the officer offers a non-evidentiary, preliminary breath test. The PBT may seal the deal for the officer's arrest decision, or it may not. Either way -- the officer decides, based on his assessment of the tests, to arrest the driver. The arrested driver is then taken to a facility for the evidentiary breath test. Some PDs have them at hand in the station, in other cases, the breath test is at the jail. The consequences of refusal are explained to the arrested driver, and the driver is then given the opportunity to consent again to the breath test. (I actually generally briefly advise the person in the street, because we do have a breath test device in our station, and if they say they're not going to do the test -- I'll go straight to the jail & magistrate and do the formal notice there. If they consent -- there're breath testing facilities at the jail. If they don't... the magistrate is handy.) If they consent, the formal breath test is administered (or blood drawn if the suspicion is that the driver is high, not drunk), and the arrested driver is taken before the magistrate. The officer makes a sworn statement of probable cause to the magistrate, warrants are issued and served, and the initial bond is set. The arrestee is left in the care of the jail staff until they sober up and pay any bond required.

Notice that the driver is already under arrest at the time of the breath test. Consenting or refusing in Virginia doesn't change that fact -- though doing the breath test and returning a very low BAC may get the driver dearrested if there's no evidence of drugs. It's rare -- but it does happen. In Virginia, if the BAC is between .05 and .08, there's no presumption made and the case rests on the officer's articulation of the other tests and driving behavior. BAC below .05, and no drugs, and you are presumed NOT too impaired to drive.

In Virginia, drivers arrested for DUI go to jail until they're sober for a simple reason: to protect themselves and the public. Maybe in some parts of the state, the magistrate might let a friend pick you up -- but up here where I work, I don't know of a magistrate who'll take that bet. The driver is locked up simply to ensure that they don't get behind the wheel or otherwise get hurt because they're drunk.

[berserk]

If a person who is extremely polite, takes the field balance tests, is respectful of the officers, yet politely refuses the BAC test is encountered, would he/she be offered the same leniency? Or is it dependent on the taking of the breath test? What if I would rather have my blood drawn or provide a urine sample and the Officer wants me to blow? Is that still a refusal?

Depends on the state. In some states, the officer may choose which test to request. In others, the suspect may choose which test to take.

[McCrackhd]

Here a refusal nets you a suspended license that you can apply for and receive a hardship to get them back.

So what's 1st and 2nd degree?

[MacLean]

I've just heard of a thing called "attitude arrest", or "contempt of cop" as I've seen mentioned and thought an incident such as this seemed to fit that.

Welcome to the real world.

If you think your attitude should not change the booking decision, I have some ocean front property to sell you in Arizona.

Our job is to achieve voluntary compliance with the law. If I think booking is the best way to accomplish getting your attention, so be it.

[McCrackhd]

Since we're talking about DUI's, I have an interesting story. A couple of years ago, while I was training the last rookie I've had since before becoming a detctive, we made a possible DUI stop. Being as how it was my rook's last couple of weeks of FTO, I let him call the shots. The driver, who was in his 50's, was almost fall down drunk. Personally, I hate doing DUI'S, but this one I was contemplating because of his level of impairment. But, I decided to let my rookie make the decision whether or not to arrest him. The guy lived about a mile from where we stopped him, FYI. My rook decided to let him call his wife cause he had already done a few himself and wasn't fond of the pain in the ass that they are. The guys wife comes to get him and arrangements are made to get his truck later.
We clear the scene and 30 minutes later a domestic comes out at the guy's address. Yeah, one of those "Oh shit" moments, right? Other officers get there before us and the idiot had backed his 1960-something Shelby Mustang into a ditch across from his house. Turns out, dumbass was upset that he had to leave his truck and had decided he was going to go get it. If that wasn't bad enough, dumbass had a
.12 ga shotgun in the Stang that he was going to use to get his truck back with. My stomach dropped when I learned this, because just before the call came out, I had seen two officers 40'd up in the parking lot where the truck was parked. He went to jail this time.

[berserk]

Welcome to the real world.

If you think your attitude should not change the booking decision, I have some ocean front property to sell you in Arizona.

Our job is to achieve voluntary compliance with the law. If I think booking is the best way to accomplish getting your attention, so be it.

So you're saying that there's nothing wrong with adapting our approach to suit the needs of the situation and the behavior of the suspect?

Interesting....

[Tango Zulu 22]

Much easier over here - fail to provide a preliminary breath test at the roadside after a requirement to provide same and I have the teeniest suspicion that you have alcohol in your body - you're under arrest.

Simples!

[TXCharlie]

Much easier over here - fail to provide a preliminary breath test at the roadside after a requirement to provide same and I have the teeniest suspicion that you have alcohol in your body - you're under arrest.

Simples!

Haha, that almost sounds like Dallas, which makes the news occasionally by inviting judges to tag along with their DWI task force... The judges hold a hearing in mobile trailers or on the side of the road, sign the blood search warrants, and a police officer who has nursing certifications draws blood on the spot. LOL

I think they had some lawsuits over that, but not sure how they turned out, or if they're even settled yet.

[MacLean]

So you're saying that there's nothing wrong with adapting our approach to suit the needs of the situation and the behavior of the suspect?

Interesting....

Don't you?

[lewisipso]

So what's 1st and 2nd degree?

Hmm. Interesting. I've never known anyone to be convicted of that here so I don't know. Drunk driving in La is a spectator sport. I'm pretty sure that if you kill a family of 4 in a mini van the DA's office will at least consider a non moving violation. There will be a fine but court cost will be waived. After all, true justice is about making money yes?

[McCrackhd]

Hmm. Interesting. I've never known anyone to be convicted of that here so I don't know. Drunk driving in La is a spectator sport. I'm pretty sure that if you kill a family of 4 in a mini van the DA's office will at least consider a non moving violation. There will be a fine but court cost will be waived. After all, true justice is about making money yes?

Sorry Lewis, I was meaning to quote someone else. They said in thier state DUI with refusal goes from 4th degree to 3rd degree, so I was wondering what 1st and 2nd were.

[berserk]

Might not be a 1st or 2nd degree.

[Traffic Goddess]

Personally, I didn't completely trust the Intoxilyzer. I always went for blood.

The important thing to remember is that driving a motor vehicle is a privilege, not a right. When you sign your driver's license you are consenting to submitting to a test if stopped for DUI. You can have ZERO alcohol in your system and if you refuse the test you are penalized.
It's just not worth it. Take the test.

Another important point is that you do NOT have the right to speak to an attorney or anyone else before taking the test.

Just sayin'.

[gopherpuckfan]

Sorry Lewis, I was meaning to quote someone else. They said in thier state DUI with refusal goes from 4th degree to 3rd degree, so I was wondering what 1st and 2nd were.

You were probably talking about us in MN.

2nd Degree is a Gross Misdemeanor. It relies on 2 or more aggravating factors to reach that level. It also results in vehicle forfeiture. 1st Degree is a Felony and is triggered from more than 3 DWI convictions in 10 years, or *any* DWI after you've already been convicted of Felony DWI in the past. So, you may have someone get 4 while they're in their 20's and get a felony from the last one. Then, 30 years later they get another one, it's going to be a DWI because of the prior felony DWI.

[gopherpuckfan]

Another important point is that you do NOT have the right to speak to an attorney or anyone else before taking the test.

Just sayin'.

Here, they do. It's even on the Implied Consent form we're required to read them. We run into suspects that dick around and play games with us while they pretend to contact an attorney. It can get annoying, but I just keep documenting what they're doing. If they mess around too long, it goes down as a Refusal.

[Traffic Goddess]

Here, they do. It's even on the Implied Consent form we're required to read them. We run into suspects that dick around and play games with us while they pretend to contact an attorney. It can get annoying, but I just keep documenting what they're doing. If they mess around too long, it goes down as a Refusal.

Seriously? I guess the O'Connell precedent isn't applicable there. That's a shame.

I love Jamaica's law. You have 24 hours after arrest to have a blood test done by your own doctor. Gee....

I guess you can tell by my screen name that I was a traffic hammer and I specialized in DUI cases. A lot of this had to do with the fact that I was struck by a drunk driver on 12/22/89 while standing outside of my patrol car on a traffic stop. I was only on the job for three months. The drunk hit my right hip after his car bounced off of the rear driver's corner of my brand new patrol car. I was thrown 25 yards and the barrel of my gun was actually bent.
I became hell on drunk drivers after I got out of the hospital. I was one of the first officers in PA to be certified in VGN as well as HGN.
I'd be pretty darn mad if I had to put up with them calling an attorney.

[armygrnt502]

In KY its different. I'll explain.

I pull you over for DUI..even before you get out of the car, I do preexits (touch fingers, count from 42 to 67 and do the alphabet normally starting from E and stopping at R). If I determine that you are under the influence (alcohol or drugs) you are asked to exit the vehicle.

Standard FST's are given: One leg stand, walk and turn and HGN. (We are all taught those in our acad. as well as operating the Intoxilyzer) After you do those tests, yes you can refuse any and all of them or I can stop them from continuing based on your safety, I will give you a PBT. This PBT is not admissable in court, but can be used as a determing factor to whether or not you get arrested. I do the PBT last due to being burned on a DUI case one time that my judgement was clouded due to their client blowing a .320.

You are taken to jail, you are under arrest, not detained, not along for a joy ride, arrested. In KY it is the the officer's choice as to if he/she wants breath, blood or urine or all three. Breath test is the easiest. Blood test costs the department as well as urine since its done at the hospital. If Im getting blood (usually for drug cases) Im getting urine as well.

We have to read you the implied conset form. In this reading you are given the opportunity to contact an attorney and if you are able to do so, have him/her present for the breath/blood testing. We CAN NOT be in the same room as the suspect and have to give them reasonable time (no more than 20 mins) to contact an attorney. Now if its 2am you are SOL because I dont know of any attorney that is up at that time, however you are still given the chance to find one.

After that time, I finish reading you the implied conset form, have you sign it. (going on the 20 min observation period where you havent burped, spit up or chewed anything) This does not imply guilt, only that you have been read the words. If you refuse, no biggie, I write subject refused and go on. I personally always have my voice recorder on for my camera so its on the same DVD as the FSTs. I will tell you what test I want to you to do, breath being the easiest.

When we get into the breath room, I type your info into the machine, give you a new thingy to blow in and we go from there. You refuse? I put that on my paperwork, hit the R on the machine and any and all tests stop. If you cooperate you are entitled a blood test at your own expense by a doctor, nurse phlebotomist etc...within a reasonable time of your arrest, refuse and that right is denied to you. What I do is this, they cooperate and want a blood test, I drive them from the jail to the hospital and we go straight into the lab. After the test, which they pay for on the spot or no test, they are taken (still in cuffs) back to jail.

You refusal is called an enhancement. All that does is deny the court from seeing your true BAC. It is looked upon as why were you refusing, did you have something to hide?

What normally would be a 30 day suspension is now a 90 day for your OL.

We have 4 offenses for DUI. All are misdemeanors save for the 4th one. If you get 4 or more within a 5 year period it becomes a felony. Now mind you, the penalties are worse per each successive time, but its still DUI 1st, 2nd etc...


If you cooperate does not change my disposition towards you. To me, you failed the FST's, the PBT and the preexits, you deserve to be off the road. I may not win it in the courtroom (although I have only lost 4 cases out of 72) but thats not my area of expertise. I make sure my paperwork is straight and water tight and let the lawyers handle the rest. If you are polite, I remember this and will treat you accordingly. If you are rude, I will still treat you professionally but will not me leniant with the prosecutor or defense attorney.

[armsmaster270]

Here you are required to give blood, breath or urine when you get to the jail for DUI if you refuse you are booked DUI on officers observations and your license is automatically suspended no matter how the DUI goes in court.

[pgg]

Here you are required to give blood, breath or urine when you get to the jail for DUI if you refuse you are booked DUI on officers observations and your license is automatically suspended no matter how the DUI goes in court.

In CA Blood can now be forced