Pretty simple solution, if you drink...don't drive. If you don't drink, take the breathalyzer...

 

No one will have to worry about blood tests...

You have the right not to incriminate yourself, which is also known as the right to remain silent.

 

You have the right to be free of "unreasonable search and seizure."

You have the right not to incriminate yourself, which is also known as the right to remain silent.

 

You have the right to be free of "unreasonable search and seizure."

 

Which usually means you're guilty...

 

Don't drink and drive, bottom line...

I think this is a great discussion and we should keep it going. It also serves a purpose for me personally to view the varied reactions of people who will be potential jurors to the issues. DUI defense is an active part of my practice, and I probably try one DUI case per month before a jury. I wish that some of the many law enforcement BGPers that we have would chime in with their thoughts.

 

Like most if not all of you on here, as a citizen I am outraged by drunken drivers and would, if convinced of their guilt beyond a reasonable doubt, prove more harsh in judgment than your average citizen. However, I respect the rule of law more, and therefore am probably even more critical of government authority, and particularly their abuse of it.

 

My initial reaction to reading this whole thread was surprise at the number of posters who defend the Ohio ordinance being the same posters critical of George W. Bush's Patriot Act, and those who are critical of the Ohio ordinance are posters who have supported the Patriot Act.

 

4th amendment abuse is 4th amendment abuse, period.

 

At the heart of the 4th amendment is a righteous skepticism of government authority, and that includes police. If we are engaging in truth, no discussion of search and seizure law can be meaningfully engaged in without inclusion of our mistrust of the motives of the police. Like most of you, I am a healthy supporter of the Fraternal Order, and they are amused every couple of years when a defense attorney hosts a late-night open house for those working on Christmas Eve to stop in and have pizza and hot chocolate. But, like lawyers, there are more than a fair share of unqualified and/or disingenuous police officers, and the law has historically looked very closely at laws designed to liberate police from their 4th Amendment restrictions.

 

That trend is now changing, in my opinion to the detriment of the Respublic.

 

I agree with RTS that the "if you have nothing to hide" opinions are very superficial. It just completely and utterly misses the point. And, the fact of the matter of is, most of us DO have things we would prefer not be exposed. I may not want to be pulled over because I don't want the girl who is not my wife seen with me in the car. Nothing illegal about it, moral issues perhaps, but the government should not be in the business of exposing more but not illegal shortcomings. I may not want my car searched and have to explain the Hustler magazine in the car. Or the boxes of gun shells. Or what is in the cases or suitcases I am transporting. Or my all-time favorite that gets the police scurrying like ants, large sums of money.

 

The point is, there are things that are not illegal but cause the police to (and they most certainly do) detain you and question you about other items wholly unrelated to the stop. We should not have to expose that.

 

Police only need "reasonable grounds" to stop you in your car. They do not need "probable cause." Delaware v. Prouse. That means that you will hear virtually any reason under the sun as to why they pulled you over, including the proverbial failure to dim headlights, the impetuous one headlight out, the old cracked windshield, and the failsafe unlighted license plate. Some of those are actually traffic violations, some are not. But you are going to get pulled over, by hook or by crook.

 

Michigan Dept. of Hwys v. Sitz did hold that sobriety checkpoints could be constitutional IF they were done pursuant to a "systematic plan." Part of that, it was held, includes 1) stopping every car that comes through the checkpoint 2) having a supervisor on duty at the checkpoint 3) advertising the checkpoint in advance and 4) not using the checkpoint as a subterfuge for other activity, such as searching for drugs, etc. The Supreme Court opined that national statistics regarding drunken driving on particular days provided the "reasonable grounds" for the checkpoints' establishment.

 

In City of Indianpolis v. Edmonds, the court held that so-called "drug interdiction" checkpoints were unconstitutional, as not establishing a nexus or foundation for the reasonable grounds standard overcoming the 4th Amendment. Similarly, checkpoints established for checking driver licenses and insurance have been held to be unconstitutional, as not having a nexus.

 

The next court decision will undoubtedly involve the constitutionality of "Click-It 'N Ticket" checkpoints for seatbelts, particularly since seatbelt violations are now a primary offense, by statute.

 

So, you get pulled over at a sobriety checkpoint, what then? Officer approaches and asks if you've had anything to drink. What if you have? Doesn't this sound like a 5th Amendment question? What if you exercise your constitutional right to remain silent? I can guarantee that, if later arrested, they are going to be using your response against you in court. Yet, if you remain silent, they claim you are "hiding" something and ask you to get out of the car. As RTS said, it is not illegal to drink and drive, it is only illegal to drive under the influence.

 

So, you are out of the car, and typically the next thing is to either have you submit to field sobriety tests, or to give you the Alco-Sensor III or "PBT" (preliminary breath test). This is the "breathalyzer" to which you are all referring.

 

In all of my years of practice, I have NEVER, a single, solitary time, seen the PBT test employed legally by the police. The instructions for the use of the device require the officer to wait at least 15 minutes before administering it, but I have NEVER seen and officer do that. Typcially, they turn it on and try to jab it right into your mouth. The PBT gives an actual reading, but you are almost never shown what it is, or they turn it off while it is still calculating and say "it showed the presence of alochol." My point is, so what? Also, I have seen officers frequently give you the PBT after it has just been used on another subject, often not changing the mouthpiece of using the recharge function to eliminate the prior sample, which means you get the pleasure of tasting someone else's spit AND getting the benefit of their alcohol sample in your reading.

 

The PBT is so unreliable and wrongly used that in Kentucky, the results and administration of the test are, by statute, inadmissible against you in court, and even your REFUSAL to submit to the PBT is inadmissible against you in court.

 

Yet, it is your refusal of this unreliable device which forms the basis of a compelled body search in Ohio?

 

The point of this is that there has become one set of law for DUI, and another set of law for everything else. There are a lot of people out there, like Rockmom, who believe that it is wrong to have even a single drink of alcohol and then get behind the wheel of a car. And there is nothing wrong or evil about holding that opinion, none whatsoever. I respect that opinion. However, it is not the law. And anytime you have people who feel strongly about their opinions and it conflicts with the existing law, you have a battle in the legisalture and the courts. It is likely a conflict that will exist for a very long time.

Which usually means you're guilty...

 

Don't drink and drive, bottom line...

Wrong, one drink won't put you over the limit. However, they 'll just take your blood if you refuse the breathalyzer.

Hearsay, can I get the 'Cliffs Notes' version?

Wrong, one drink won't put you over the limit. However, they 'll just take your blood if you refuse the breathalyzer.

 

Then take the breathalyzer...

Hearsay,

 

In reading your brief (;, I am struck with the following questions:

 

1) In this particular instance, the police have clearly announced their intentions. From what you wrote above, it's constitutional.

 

2) You still haven't addressed the premise that after taking the breathalyzer, one has the right to request the blood test to dispute the readings. One only needs to assert themselves to do so.

 

3) I pretty much believe that you would strike me from any jury you may be choosing. :lol:

Then take the breathalyzer...

There are many good reasons not to, just read Hearsay's post.

Hearsay,

 

In reading your brief (;, I am struck with the following questions:

 

1) In this particular instance, the police have clearly announced their intentions. From what you wrote above, it's constitutional.

 

2) You still haven't addressed the premise that after taking the breathalyzer, one has the right to request the blood test to dispute the readings. One only needs to assert themselves to do so.

 

3) I pretty much believe that you would strike me from any jury you may be choosing. :lol:

 

1. They have only announced their intentions to those who have read the local paper in which it was published. Otherwise, you are correct.

 

2. You do NOT have the right to request a blood test after administration of the PBT. You are confusing that with the Intoxilyzer down at the jail. You only get to that if you have been arrested. After re-reading the article, what the Ohio law enforcement is referring to is refusal of the road-side PBT test, which is ridiculous.

 

3. I would not strike you, you would be struck for cause by the court. I need my peremptories for more ambiguous members of the venire.:thumb:

Rockmom, here's my point about one drink. It also has good advice about being stopped fro DUI.

 

1. They have only announced their intentions to those who have read the local paper in which it was published. Otherwise, you are correct.

I have to think this will be on the news as well. What else is required?

 

2. You do NOT have the right to request a blood test after administration of the PBT. You are confusing that with the Intoxilyzer down at the jail. You only get to that if you have been arrested. After re-reading the article, what the Ohio law enforcement is referring to is refusal of the road-side PBT test, which is ridiculous.

Hmmm...didn't know that you couldn't request to have a blood test after the roadside administration. Doesn't change my opinion, but still good to know.

 

3. I would not strike you, you would be struck for cause by the court. I need my peremptories for more ambiguous members of the venire.:thumb:

I'm wounded. :lol:

So the issue is with the way the tests are administered, not the fact that they are testing.

 

I'd much rather take the embarrassment of officers finding a few magazines or a female companion than possibly injured by someone that is under the influence...

Rockmom, here's my point about one drink. It also has good advice about being stopped fro DUI.

 

 

 

Thanks for the info. It doesn't change my mind, though, as this doesn't display the effects of alcohol, only what is considered legal amounts.

 

You miss my point....I am 0 tolerence (in case you missed it).

 

And you cannot, under either my information, or yours, say with any certainty that 1 beer will not have an effect on anyone. There are far many more variables, had you read either of my links.

Rockmom, here's my point about one drink. It also has good advice about being stopped fro DUI.

 

 

I was unclear. I should've posted 'under the influence' and not 'drink and drive'.

This is an invasion of privacy of the highest order.

 

I am terrified that so many people think an invasion of privacy is okay so long as you have nothing to hide. That is contrary to the foundation of this country and is a very ironic discussion to have on Independence Day.

 

People are making the inference that I am guilty if I don't want a state sponsored needle drawing bodily fluids. Unbelieveable.

 

To be honest, I've been laying back watching all this and it's rather amazing how fast we can speak in circles.

 

 

For the record, I believe it is an invasion of privacy and I tried to play devil's advocate earlier but no one seemed to bite.

 

I find it funny that some seem to scream "police state and Orwell" on this issue but their posts on earlier issues such as the Patriot Act and wire taps came across as "protection of this great country." The only difference I see is that some hear don't line themselves up as appearing as potential terrorists but might have a drink or two and get on the road so therefore this act in Columbus is a Constitutional Violation but the other is just the right of the state to protect people.

 

My guess is more people are killed by drunk driving than terrorists in this country every year. If we are going to do one, why not the other? If we are really for the Constitution then we have to stand up for both IMHO.

 

BTW, my inference of alcohol use or abuse is not tied to Mr. Network whom I quoted. It is just a blanket observation of posters as a whole that might or might not be in the situations I described.