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Nevilledog

(55,085 posts)
24. You do not have to refuse them first.
Thu Jun 18, 2020, 04:38 PM
Jun 2020

It is totally the cop's discretion which steps he takes before arresting someone for suspicion of DUI. Obviously, the better the case for probable cause the less likely it would be challenged in court.

There is no legal requirement for a cop to give FSTs or a PBT. Some people can't do FSTs for physical reasons, that refusal does not give rise to probable cause nor does it grant some privilege to then ask for a PBT.

Think of when there's an alcohol related accident. The driver is transported from the scene. That person obviously didn't do FSTs or a PBT. The cop then makes a request for a sample of blood drawn at the hospital, so long as it was drawn for a medical purpose. If a blood draw was not part of their treatment, a telephonic warrant to have blood drawn is needed.

A very small percentage of cases I handled actually had PBT readings. It's just an option to shore up probable cause.

Also consider that PBTs do not test for the presence of drugs. In a DUI drugs only case the PBT would show zero alcohol and the cop would have to rely on the behavior he witnessed and why his training led him to believe the driver was impaired. If the officer concluded he had probable cause he would ask the suspect for a blood sample and if they refused, get a telephonic warrant for the draw.

As to testifying about the odor of alcohol..... I've never handled a DUI based on alcohol where the cop said he DIDN'T smell alcohol. Saying there was an odor of alcohol is a gimme. There's no way you can go back and prove there was NO odor of alcohol. It's just like cops saying they smelled marijuana. Gives them reason to search a car. If you have nothing, no harm, no foul to a cop. If they find something it "proves" they were right.

(Kinda off topic: for a DUI drugs they don't even have to prove impairment. Just that a metabolite of the drug was in your system at the time you drove or were in actual physical control of the vehicle)

Recommendations

0 members have recommended this reply (displayed in chronological order):

While not a capital offense, the Breathalyzer did him in. Hoyt Jun 2020 #1
They use a portable breath tester (PBT) at the scene to get probable cause. Nevilledog Jun 2020 #2
Autopsy also included a blood alcohol that was reported. In any event, the Breathalyzer got him. Hoyt Jun 2020 #4
Guess I think the BAC is irrelevant. Nevilledog Jun 2020 #7
BAC is irrelevant, except it supports failing the breathalyzer. Hoyt Jun 2020 #8
Agreed. Nevilledog Jun 2020 #9
It's Been A While Since I Trained For This But;... jayfish Jun 2020 #16
They don't have to follow that progression. Nevilledog Jun 2020 #20
Right, But You have To Refuse The FST/PBT First. jayfish Jun 2020 #23
You do not have to refuse them first. Nevilledog Jun 2020 #24
He's in a private parking lot, not on the street soothsayer Jun 2020 #3
Yes, he could have gotten out of that DUI. A friend of mine was nabbed in a similar situation. cwydro Jun 2020 #5
Look up actual physical control. PTWB Jun 2020 #17
Well, there were three conditions the attorney used to acquit my friend. cwydro Jun 2020 #26
That isn't how DUI law works. PTWB Jun 2020 #14
Read GA law on DUI. State laws differ delisen Jun 2020 #15
Here In Illinois... ProfessorGAC Jun 2020 #29
Being drunk is not a death penalty offense. avebury Jun 2020 #6
Agree, it's not a capital offense. But since Mom's Against Drunk Driving, police don't let people Hoyt Jun 2020 #10
Being drunk is not a death penalty offense. SoonerPride Jun 2020 #12
Was not on a road. Was not driving soothsayer Jun 2020 #13
That's not how DUI works. You've been told numerous times. PTWB Jun 2020 #21
They did, actually. They told him to go take a nap. n/t cigsandcoffee Jun 2020 #19
My daughter and me thought the same. arthritisR_US Jun 2020 #11
What makes me really sad about this is that the cop initially let him go cigsandcoffee Jun 2020 #18
what they should do.... quickesst Jun 2020 #22
Don't confuse a breathalyzer with what was used here. Nevilledog Jun 2020 #25
okay quickesst Jun 2020 #27
You're welcome. Nevilledog Jun 2020 #28
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