No Refusal DUI Checkpoints

**Five-0** · 12-30-10, 12:05 PM

I want to get the public's opinion on this issue:

"No refusal" DUI checkpoints could be coming to Tampa | Tampa Bay, St. Petersburg, Clearwater, Sarasota | WTSP.com 10 News

CLICK THE LINK FOR THE FULL STORY.

Poll is attached to this thread. Would you support this enforcment tactic where you live?

Tampa, Florida-- With New Year's Eve only days away, the National Highway Traffic Safety Administration expects this to be one of the deadliest weeks of the year on the roads.
But now a new weapon is being used in the fight against drunk driving.
It's a change that could make you more likely to be convicted.
"I think it's a great deterrent for people," said Linda Unfried, from Mother's Against Drunk Driving in Hillsborough County.
Florida is among several states now holding what are called "no refusal" checkpoints.
It means if you refuse a breath test during a traffic stop, a judge is on site, and issues a warrant that allows police to perform a mandatory blood test.
It's already being done in several counties, and now Unfried is working to bring it to the Tampa Bay area.
"I think you'll see the difference because people will not drink and drive. I truly believe that," she said.
Not everyone is on board, though.
DUI defense attorney Kevin Hayslett sees the mandatory blood test as a violation of constitutional rights.
"It's a slippery slope and it's got to stop somewhere," Hayslett explained, "what other misdemeanor offense do we have in the United States where the government can forcefully put a needle into your arm?"
The federal government says Florida has among the highest rates of breathalyzer refusal.

**Sam** · 12-30-10, 01:46 PM

There is no way that they should allow this. This is 100% a violation of my rights. I have a right to refuse a breath test, if I do refuse I know that they can suspend my license but that is my choice. It is just another way for the state to get money.

**Five-0** · 12-30-10, 01:48 PM

Are you aware of implied consent laws? Who do you mean when you say "they" should not allow this. The cops or the on scene judge issuing the warrant for the blood?

**Sam** · 12-30-10, 01:52 PM

Yes i have heard of of those laws. The law also states that if you refuse to take a test that you loose your license for a predetermined amount of time. No where does it say that they can violate me by sticking a needle in my arm.

**Five-0** · 12-30-10, 01:55 PM

Originally Posted by Sam

Yes i have heard of of those laws. The law also states that if you refuse to take a test that you loose your license for a predetermined amount of time. No where does it say that they can violate me by sticking a needle in my arm.

How is this different than a judge issuing a warrant based on probable cause for any other search or seizure in order to secure evidence of a crime?

**Sam** · 12-30-10, 01:59 PM

Because the implied consent law states that they can only use force to get a sample if it is felony for DUI in my state.

**Five-0** · 12-30-10, 02:06 PM

Each state is a different animal on certain matters. Could you post the law or your state?

Mine:

2006 Alabama Code - Section 32-5-192 — Implied consent; when tests administered; suspension of license or permit to drive, etc., for refusal to submit to test. - Alabama Section 32-5-192 — Implied consent; when tests administered; suspens

**Sam** · 12-30-10, 02:17 PM

After looking into my State laws I stand corrected. They are allowed to use force but I still feel that this is a violation of my rights and I do not agree with what Florida is doing. This is my opinion ~~

**Pudge** · 12-30-10, 02:27 PM

We are no refusual here, and have been for several years now. I like it.

Here we fax an affadavit to the judge who reviews, signs, and faxes it to the Emergency Department at the hospital. We transport from Corrections to the ER, read the warrant, and a lab tech or nurse draws the blood.

The defendant still faces the suspension for the refusal, and gets charged for the BAC concentration.

**jmur5074** · 12-30-10, 06:23 PM

We can only force a blood draw if there is a criminal vehicle homicide or injury.

If they refuse for any other DWI related crime, they lose their license for a year (rather than 90 or 180 days) and they're charged with Test Refusal which is an aggravated crime (Gross Misd. rather than a Misd).

So as long as it's allowed in Florida, I say go for it. It expedites the process and can help get drunks off the road.

**MacLean** · 12-30-10, 06:38 PM

No can do here. Forced blood only for incapacity or felony vehicle crime.

The checkpoint itself isn't legal here.

This is a bad idea, legally. Taking forced blood to this extreme could result in the loss of forced blood for all cases.

**Sam** · 12-31-10, 11:36 AM

Originally Posted by MacLean

No can do here. Forced blood only for incapacity or felony vehicle crime.

The checkpoint itself isn't legal here.

This is a bad idea, legally. Taking forced blood to this extreme could result in the loss of forced blood for all cases.

Awesome ~~

**121Traffic** · 12-31-10, 11:53 AM

I'm kinda with Mac here. A man's home is his castle, but his body is his temple. There is nowhere more private to a person than within the confines of their own body. I think that the comparison to a judge signing a warrant based upon probable cause for other evidence NOT contained in my body has SOME merit, but falls short of justifying this intrusion. The 4A protects us from unreasonable searches, and from my viewpoint, this search is unreasonable, whether a judge says it's okay or not. Judges aren't always correct, not by a long shot, so I don't think we can justify this by saying "a judge said it was okay!" The intrusion always has to be weighed against the greater good it serves, and I can't honestly say I would feel comfortable with strapping someone down and sticking a needle in them for a traffic offense absent any other justification (i.e. an accident involving serious bodily injury, etc)

Violating the sanctity of my very physical existence against my will for what amounts to a misdemeanor crime against society is treading a VERY slippery slope. I'd just as soon steer clear. If this were my jurisdiction, I would not volunteer for that checkpoint any more than I would follow an order to seize a citizen's lawfully owned firearms, just because some judge said it was okay, ya know?

**Pudge** · 12-31-10, 12:16 PM

Originally Posted by 121Traffic

I'm kinda with Mac here. A man's home is his castle, but his body is his temple. There is nowhere more private to a person than within the confines of their own body. I think that the comparison to a judge signing a warrant based upon probable cause for other evidence NOT contained in my body has SOME merit, but falls short of justifying this intrusion. The 4A protects us from unreasonable searches, and from my viewpoint, this search is unreasonable, whether a judge says it's okay or not. Judges aren't always correct, not by a long shot, so I don't think we can justify this by saying "a judge said it was okay!" The intrusion always has to be weighed against the greater good it serves, and I can't honestly say I would feel comfortable with strapping someone down and sticking a needle in them for a traffic offense absent any other justification (i.e. an accident involving serious bodily injury, etc)

Violating the sanctity of my very physical existence against my will for what amounts to a misdemeanor crime against society is treading a VERY slippery slope. I'd just as soon steer clear. If this were my jurisdiction, I would not volunteer for that checkpoint any more than I would follow an order to seize a citizen's lawfully owned firearms, just because some judge said it was okay, ya know?

Ok, playing devil's advocate here....

The blood itself is evidence of a crime. Keep in mind, with implied consent, you've already given up your right to refuse a breath test without consequence. And driving in and of itself is not a given right.

That said, at what point is the line drawn for such a search? OVI here is a Misdemeanor of the first degree up until the 4th within 6 years when it becomes a felony.

Say Jo Schmoe gets 3 OVI's in a span of 4 years simply driving home from the bar, his buddy's house, and the company Christmas party, he's probably a .12 each time. No injury to anyone, no crash, nothing. All 3 are misdemeanors. But, he gets one more in similar circumstances, making it a felony. He refuses to blow all four times. Do you support the warrant draw for the 4th, but not first 3? Or do you not support it at all unless there is injury?

Furthermore, refusing a test and concealing the results would make a difference in the ehancement of the offense and possible penalities.

**Cidp24** · 12-31-10, 12:44 PM

I feel that there should be some kind of reason for asking for the test. Just the fact that you are driving a car is not enough. Whiff of an alcoholic bevarage? Yes. Open alcohol in the car? Yes. Any of the usual physical indicators? Yes. Simply driving a car? No.

**Pudge** · 12-31-10, 12:57 PM

Originally Posted by Cidp24

I feel that there should be some kind of reason for asking for the test. Just the fact that you are driving a car is not enough. Whiff of an alcoholic bevarage? Yes. Open alcohol in the car? Yes. Any of the usual physical indicators? Yes. Simply driving a car? No.

Oh, absolutely!

The situation described above only happens after PC for the test is developed, and the test itself is refused.

**Five-0** · 12-31-10, 01:34 PM

Yeah, I'm starting to think we may not all be reading from the same sheet of music. The way I saw this is there is a checkpoint. Contact with the driver and the odor of alcohol is coming from the driver and/or other indicators of impairment. Either FSTs are failed or refused. I have had several "professional" DUI types that will not even take FSTs. They know that they get arrested anyway, and they don't care. This is where a judge steps in on the scene having not read about the PC for a warrant but has witnessed the PC first hand.

I certainly am not for a checkpoint where random people are asked and then demanded to give a blood sample. This don't blow and don't submit to field sobriety test advice that some lawyers are giving out is why there is a need for this. For lawyers it is about beating the case and getting paid. For me, as a LEO, it is about getting drunks off the road. Driving is not a right. If the punishments for failures to submit a breath sample were stiffer there would not be a need for this.

**Cidp24** · 12-31-10, 01:54 PM

Maybe I'm reading it wrong too but I took as pull up to the point and blow or get blood drawn if you refuse. An agency that I know of got bad about doing checkpoints and having people blow with no real other indicators. We have attorneys here telling people via advertisments, to refuse any tests. I am almost positive that a lot of people got charged with DUIRT that would have passed the test but were afraid to blow because of those advertisements. That particular agency slacked off after losing a lot of cases and getting slammed in the media.

Lets get every drunk we can off the roads but lets not trample personal rights to do it.

Having said that, if there are indicators and the driver refuses, I have no problem with the warrant and they need to draw the blood with a very large needle.

**lewisipso** · 12-31-10, 02:05 PM

I seriously doubt this or anything of similar nature would be allowed in my area.

**Pudge** · 12-31-10, 02:11 PM

Originally Posted by Five-0

Yeah, I'm starting to think we may not all be reading from the same sheet of music. The way I saw this is there is a checkpoint. Contact with the driver and the odor of alcohol is coming from the driver and/or other indicators of impairment. Either FSTs are failed or refused. I have had several "professional" DUI types that will not even take FSTs. They know that they get arrested anyway, and they don't care. This is where a judge steps in on the scene having not read about the PC for a warrant but has witnessed the PC first hand.

I certainly am not for a checkpoint where random people are asked and then demanded to give a blood sample. This don't blow and don't submit to field sobriety test advice that some lawyers are giving out is why there is a need for this. For lawyers it is about beating the case and getting paid. For me, as a LEO, it is about getting drunks off the road. Driving is not a right. If the punishments for failures to submit a breath sample were stiffer there would not be a need for this.

I agree. In our situation here, the warrant comes in long after PC is developed and a BAC test is refused. No way would I support a checkpoint type operation where every driver is requested to submit a test simply because they pulled in to the zone. No way.