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Take the Breath Test in a Drunk Driving Stop?

Rick Collins

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I posted this today in response to a question on another board, and a comment that a person should NEVER take a breath test if stopped for drunk driving. That's NOT necessarily good advice, and I think the reasons why are worthy of broader exposure. Besides handling steroid-related legal matters, I've handled many hundreds of drunk driving cases, formerly as a prosecutor and now as a defense lawyer.
**************
The laws and practicalities regarding DUI (or "DWI") are important to understand. Whether or not to take a breath test is an important decision. Here's a brief basic primer:

1) You can be arrested for drunk driving whether you blow in the tube or not. All the officer needs is PROBABLE CAUSE to believe you are driving while intoxicated. A breath reading is evidence -- strong evidence -- against you, but it is NOT necessary for a conviction. So, if a guy is driving erratically, slurring, staggering, and stinking of beer, a cop can arrest him and a jury can convict him. As a prosecutor, I tried many refusal cases and won.

2) Anything you say to the police can be used AGAINST you. Most DWI defendants ADMIT to drinking alcohol before driving (often minimizing the amount, e.g., "I only had two beers..."). This statement is damaging, and serves as corroborating evidence of the officer's observations of a person's intoxicated condition. While most people know not to respond to police interrogation without a lawyer, it's harder to remember that after a couple of six packs.

3) REFUSING to take a breath test has its own serious consequences. To discourage refusals, many states make the fines and suspension/revocation terms for refusing the test even worse than those for taking the test and being convicted of a reduced plea. Further, some prosecutors will deny a reduced plea offer to defendants who refuse a breath test, forcing either a trial or a plea to the charge.

4) In cases where a person has only consumed two or three drinks, taking the test may EXONERATE the person from a DWI charge in some jurisdictions, and result only in a ticket for a lesser offense. Each beer, shot or mixed drink is typically the equivalent of around a .02%, and alcohol is dissipated by the body at the rate of .02% per hour (these are rough but generally accepted principles). In many states, the level for DWI is .08%. So, you do the math. If you blow a .07%, you may only be charged with a non-criminal offense in many jurisdictions.

The vast majority of drunk driving cases are resolved by NEGOTIATED PLEA BARGAINS, not trials. In states where a reduced plea bargain to a NON-criminal offense is available, most experienced criminal lawyers generally recommend TAKING the breath test UNLESS the situation includes an aggravating factor that typically preempts such a plea bargain, such as an accident or a prior alcohol-related offense. So, the guy in a first-time, typical DWI stop based on a minor traffic violation usually does better by taking the test than by refusing. (One exception is where he takes the test and blows a reading so astronomically high that the prosecutor refuses to plea bargain. In that case, the reading is evidence that's worse than a refusal. But most people who are not die-hard alcoholics blow fairly modest readings.) [These are general comments, not legal advice. A lawyer licensed in YOUR jurisdiction is the best source to find out the exact local plea bargaining policies and state DWI laws.]

Now, saying all that, may I make a public service announcement? Booze is an EXTREMELY dangerous drug that has been involved in thousands of fatalities, including countless ones each year on the roads. Having been recently hit head-on and injured myself by a drunk driver, and having represented people both cahrged with drunk driving and those injured by drunk drivers, I say please, DON'T DRINK AND DRIVE. If you're gonna drink, designate a driver. If you've had too much, call a cab. Seriously.

Stay safe,
Rick Collins
www.cmgesq.com
www.steroidlaw.com
 

Paul Bunyan

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This is damn good advice. Everyone read and pay attention.

PB
 

Doggtales

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VERY well put as always Rick!

Also there is one thing that may help to lower the blood alcohol content (BAC). It is TIME. In MD, you have a 2 hour time limit to decide whether or not to take the breath or blood test. Depending on what time you stopped drinking and how much you had through the night, your body may be on the downslide in burning the alcohol out of your system. Say you were around a .08 when you were stopped, and had stopped drinking a few hours (2-4) before being stopped. By the time you are processed you can take the full two hours to decide to take the test, your BAC could drop .01-.02%, thus putting you under the legal limit. However, watch the time closely because the cop's watch may be 10-15 minutes faster than your time, and then when the time is up, it's a refusal. AND the penalty for a refusal IS harsher than if you would have taken the test and blew over a .08%.

BUT, best message to all, and Rick said it as well, is if you drink...drink responsible and have that designated driver or cab to get you home safe!
 

Got Juice

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i should let my schmuck of a mother read this. damn woman is 43 years old and just got a DWI coming home from happy hour. lemme tell you i chewed her ass out!! i was so damn pissed, she tried hiding it from me..lol its funny im 21 but im more of the enforcer to her than she is to me..lol

Later,

Todd
 

Ivan

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Hey Rick

There is a guy in my town that got arrested for being in a fight and they handcuffed him, (he started to cooperate) and pinned him down, TAZED him SEVEN times, and roughed him up....his mother is FURIOUS, and they already have some lawyer in Seattle looking into this, but boy oh boy would it be nice to have you come in here and fuck shit up --- the cops in this town are all cowboys and abuse the HELL out of the power.
 

wolverine

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That's nothing Ivan. Here in Houston there was a 14 year old kid that was being harassed by cops for something he didn't even do, got scared and tried to run away because they were hounding him and they grabbed him so the kid let's a kick fly and nails one of the cops in the balls. His partner then pins the kid on the ground.........and blows the kid's head off. No bullshit, he put the gun to the kid's head point blank and pulled the trigger. Totally fucking amazing. This was a little fat kid that had never been in trouble even once, and gets killed by a fucking overzealous cop. Supposedly the FBI is investigating the shooting now.
 

LATS

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i have many friends that are cops and do a great job but, i also know many cops that are criminals.. in many cases, the only difference between the cop and a criminal is the badge..btw, how hard is it to pin a 14 year old to the ground?? what was the cops excuse for the killing?? accidental misfire?? just curious..
 

Mr_Magoo

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wolverine said:
That's nothing Ivan. Here in Houston there was a 14 year old kid that was being harassed by cops for something he didn't even do, got scared and tried to run away because they were hounding him and they grabbed him so the kid let's a kick fly and nails one of the cops in the balls. His partner then pins the kid on the ground.........and blows the kid's head off. No bullshit, he put the gun to the kid's head point blank and pulled the trigger. Totally fucking amazing. This was a little fat kid that had never been in trouble even once, and gets killed by a fucking overzealous cop. Supposedly the FBI is investigating the shooting now.
thats fucking aweful!, almost as bad as that couple from NJ that adopted kids so they could get money from the state, and locked the kids in a closet, and starved them, used the money from the state for their own gain
 

Ivan

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Utter disgust man...

wolverine said:
That's nothing Ivan. Here in Houston there was a 14 year old kid that was being harassed by cops for something he didn't even do, got scared and tried to run away because they were hounding him and they grabbed him so the kid let's a kick fly and nails one of the cops in the balls. His partner then pins the kid on the ground.........and blows the kid's head off. No bullshit, he put the gun to the kid's head point blank and pulled the trigger. Totally fucking amazing. This was a little fat kid that had never been in trouble even once, and gets killed by a fucking overzealous cop. Supposedly the FBI is investigating the shooting now.
WOW....Why did he have a gun out in the 1st place? See?! They all want to play cowboy. I hope that kids father blows that pigs nuts off.
 

Steak Helmet

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COPS...most are on a power trip from hell. They were the kids that were beat up in HS and now they feel they owe the world a beating.

FUCKING PIGS
 

crackerjack414

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in defense of cops they do deal with the shit of society and sometimes they die over some crazy ass red necks mental instability. I lost a good friend about a year ago at this time he was shot from behind as he fueled is cruser by this red neck fuck who just wanted to kill a cop because he felt society had done him wrong, he then proceded to shoot him several times in the head.
 

wolverine

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Crackerjack, I am in no way bashing all cops as I'm sure there more good ones than asshole ones. My friend and sometimes training partner is an ex-cop and is so laid back I often ask him why in the hell he ever wanted to be a cop in the first palce because to me he doesn't fit the cop profile. We need more like him out there, instead of the cowboys. He is an ex cop because he didn't agree with the way the other cops in the department did things, and they all juiced. Well after a pretty big tiff with the seargant, he was just "randomly" picked for a steroid test and was forced to resign when he tested positive. He even tested positive for two that he wasn't even using, lol. No lawyer would pick up his case for fear of being harassed every time he left his house or office.

Now I personally have had more good experiences with law enforcement than bad and have been let off from tickets and such many times. But i look like the typical clean cut white boy, and I have a concealed carry liscence, so I'm sure that helps.
 

slide

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Thanks Rick!

Great advice once again, Rick. Thanks for taking the time to post this information. Stay safe all....

-slide
 

MikeS

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Rick hope youre feeling better since the accident, and sustained no injuries that hamper you or your training.
I have an opinion on this matter. Laws are fucked up here too.
Your usual special interest group screaming for tougher laws have made it so that a couple beers/drinks with dinner will get you chucked in jail. Many states have a .06 DUI level, and other that dont have been warned to lose govt funding if they dont
ammend their laws. The people who need to be targeted for tough laws are repeat offenders, or the guy who hit Rick and blew a .25! Instead the hammer comes down on the average Joe, making us virtual prisoners unable to go out and socailze a little bit. In no way am I advocating drinking and driving, or extreme drinking. But again, the laws are misguided and effect the wrong people.
 

Johnny Bravo

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its simple

dont drink and drive, if you do then you have to suffer the consequences. Plain and simple
 
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cannibal

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Agree totally Johnny Bravo, drunk drivers should save us the hassle of dealing with them by driving straight into a wall at 100mph. Fuck them all. Had good mate killed by drunk driver 10yrs ago. Drunk walked away from it, and get a light wrap on the knuckles by losing his licence for 18 months, no jail, nothing.

Another guy in my home town, multiple convictions for DUI in the past, does it again and kills three teenage girls.
What did he get, prision? electric chair (I wish)? No, licence suspended again. It should be mentioned it was suspended at the time he killed the girls, drunk.

There is no excuse for drunk driving, its like firing a gun into a crowd, just cause the first shot hit no one, its only a matter of time to someone gets killed, and normally its not the fucking loser drinking.
 
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JustWannaBeHuge

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cannibal said:
Agree totally Johnny Bravo, drunk drivers should save us the hassle of dealing with them by driving straight into a wall at 100mph. Fuck them all. Had good mate killed by drunk driver 10yrs ago. Drunk walked away from it, and get a light wrap on the knuckles by losing his licence for 18 months, no jail, nothing.

Another guy in my home town, multiple convictions for DUI in the past, does it again and kills three teenage girls.
What did he get, prision? electric chair (I wish)? No, licence suspended again. It should be mentioned it was suspended at the time he killed the girls, drunk.

There is no excuse for drunk driving, its like firing a gun into a crowd, just cause the first shot hit no one, its only a matter of time to someone gets killed, and normally its not the fucking loser drinking.

have to agree with cannibal and johnny here, i have a cousin thats 6 yrs older then me, and she got hit by a drunk driver at 14 or 15, and she lost a leg. she always said she's glad she wasn't killed but she never was the same after the accident.

JW
 

DamageInc

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In Florida do you have reduced plea bargain to a NON-criminal offense option? Also, when asked how many drinks have you had tonight is it wise to say none? If you say none and they still think you have and you take the breath test and blow higher than .08 can you saying "no, i have had no drinks" add to the charges?
 

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