Should the law be changed?

[Morgan]

Right... But what I'm saying was that I was told that if you were acting stone cold sober but had any alcohol in your system, you could be charged. What you and others here seem to be saying is that you have to be judged to be affected OR have a bac of over .08. He was saying that WITHOUT being affected, ANY alcohol was sufficient to be charged.

[Originalist]

Technically he was right, you COULD be charged with any amount of alcohol in you BUT you would have to be shown to have lossed your normal mental and physical faculties (by definition). I LEO could not come up to you, smell an alcoholic beverage on you, find out you are carrying (when he asks for your ID) and then arbitrarily charge you. He would need probable cause. THat doesn't mean he wont ask you to perform a few tests, which we have already determined you have no legal obligation to comply.

On a side note, performance of the test could hurt you IF YOU ARE INTOXICATED but it could also prevent a ride to the nearest Intoxilyzer 5000 machine if you took them and passed.

[KD5NRH]

The second part is true enough. You can also be charged with DWI or any other intoxication offense at 0.01 or any other amount of alcohol in your system, if the officer can establish that you don't have normal control of your faculties. He doesn't have to prove that there is any alcohol in your system at all.

Then wouldn't it need to be proven in court (assuming the defense attorney bothers to bring up the possibility) that said lack of normal control is due to some form of intoxication, rather than injury, fatigue or some other mechanism?

[dihappy]

Wait a minute, did i read correctly?

A FST is not mandatory/implied consent if driving a vehicle?

Only a BAC is? So how does the officer determine that you are in fact not in control of your faculties if you actually tested below .08? He cant can he?

[Originalist]

That depends on what you mean by "mandatory". If you mean you as the driver have to comply with SFSTs - Technically implied consent only applies to a test of your blood, breath or urine if you are operating a motor vehicle.

An officer could prove your impaired based on observations (i.e. driving wrong direction, too slow, too fast, stopping in middle of road as opposed to the shoulder, bloodshot, glossy eyes, strong/moderate odor of an alcoholic beverage, etc, etc.) Falling when you step out of the vehicle, there are also a few pre-exit tests I could ask you to perform and before you realize what I am doing you have already done them and failed/passed. Simple things like countin, reciting a portion of the alphabet, etc. All those things could be used with or without SFST or your BAC/BrAC. It would definitly NOT be easy but it is not impossible either.

[dihappy]

I can understand how an officer could ask some questions and maybe determine you are impaired, but if i understand correctly, if I am pulled over for lets say "weaving", but i havnt been drinking. Could i effectively decline, or decline a field sobriety test?

And do officers actually have to ask if you would take such a test? I dont think ive ever heard an officer ask on the many videos ive seen.

[Originalist]

Yes you could decline the SFSTs but it would almost certainly earn you a ride to the local Intoxilyzer 5000 where you could refuse but that is where implied consent comes into play and refusel would cost you your license for 2 years minimum (I think, not 100% sure). Granite you could "Possibly" avoid the DWI charge but it would cost you your license. I guess that would be an agency to agency thing, I mean if I ask you to do something and you do it, that is consent... I just choose to ask... Plus I can beef it up like I am using it to make sure they are "fit to drive" and once they perform "well" we can send them on their way. I always err on the BG side on most things.

[srothstein]

Right.

[Originalist]

Right.

Not that it matters but

[Fangs]

I'm glad to see that I'm not the only one who was misinformed on the whole drink and carry subject.

[KBCraig]

I'm glad to see that I'm not the only one who was misinformed on the whole drink and carry subject.

It's a common misunderstanding. There are a lot of instructors teaching this incorrectly, and a lot of students misunderstanding instruction that is perhaps too subtly nuanced.

"Guns and alcohol shouldn't mix," gets translated into, "It's illegal to have a single drop in your system."

And, sometimes instructors just flat out get it wrong.

[jwp]

.... I was told that if you were acting stone cold sober but had any alcohol in your system, you could be charged ....

That would be a pretty harsh, since you always have a measurable amount of ethanol in your blood (your body makes it), albeit usually a very low amount (probably below what breath analyzers can detect). Breath analyzers don't measure blood alcohol content; rather, they estimate it from the presence of certain chemical structures (methyl groups) in the exhaled breath. Lots of things other than alcohol can cause those structures to appear in the exhaled breath: smoking, diabetes, paint, adhesives, cleaners, some non-alcoholic foods, etc, etc. All of these things cause an elevated reading that has nothing to do with alcohol consumption. The concentration of these chemicals varies in the different areas of the lungs, also. That's why the person running the test wants you to take a deep breath and then starts hollering "Breathe it all out!" and such stuff. They want to measure the very last part of the breath (from the bottom of the lungs), which can give a reading 50% above the first part. All of this is ignoring the issue of whether the equipment is actually working as it's supposed to, the physiological assumptions made to do the estimate (which, interestingly, generally discriminate against women), etc. If you're sure you're really not over the limit, then you're better off with a blood test to determine blood alcohol content, although police departments aren't noted for keeping that equipment clean and in proper working condition, either.

[Fangs]

...since you always have a measurable amount of ethanol in your blood (your body makes it), albeit usually a very low amount (probably below what breath analyzers can detect)... Lots of things other than alcohol can cause those structures to appear in the exhaled breath: smoking, diabetes, paint, adhesives, cleaners, some non-alcoholic foods, etc, etc...

I almost got a MIP back in 2004 right before my 18th birthday. Hays County Sheriffs showed up at a party where my room mate's car was being used as sound equipment. After they picked up the obvious minors they told the rest of us we could go. I asked to stay so I could find my room mate and drive him home (He was 21 and wasted). The officer I asked gave me permission, but told me to stand in a spot. Then another came up and asked for my ID, and I complied.
They then moved everyone inside and I noticed that he had my ID on a clip board and was writing something. Naturally I asked what he was doing, and bam - MIP. Come to find out within 50 feet of the keg = possession, I told him I was within 50 feet of my gun on his hip and asked if I could have it back, he wasn't impressed by my superior reasoning skills. He also didn't care that I'd asked to stay to keep my drunk room mate off the street, and I couldn't find the other officer who had told me to stand in that spot. Cue sinking feeling in stomach.
I then asked for a breath test. He said no, it's not MIC, so it doesn't matter. I explained that I don't drink (didn't start 'til I was 21) and that I could go to judge with a clean breath test at 3 am in the morning and get the stupid MIP dismissed because he was a jerk. Another officer overhearing it said he'd give me the test, mentioning 3 times that if I blew anything I'd be in more trouble. I blew a 0.00 and after a talk with the unhappy officer, I got a written MIP WARNING.

I guess my point being, I'm pretty sure that the levels without alcohol are under the breath test's detection, at least in my instance, otherwise I would have been screwed.

[Originalist]

First it is Blool Alcohol Concentration or Breath Alcohol Concentration. Content means the whole thing. I know PBTs are very unreliable and can be all over the place, that is why we dont use them at Lackland. Of the 100+ people I have seen blow on the intox, I have never seen anyone who drank alcohol blow goose eggs nor have I seen anyone you hadn't drank a drop blow more than goose eggs. I would like to know where you get your info from about diabetics, etc because none of that was mentioned in my NHTSA SFST course or Intox class I have been to either.