Need to hear from the leo on the board

[BusaWhipped]

I got a call at 3:30 this morning from my nephew to pick him up at the county jail.  When I got there, I was told they decided to hold him for 12 hours.  I don't know all of the details, but here is the situation as my nephew explained it.

He had just gotten off of work last night (he works second shift) and was only a couple of miles from work when he got pulled over.  The officer asked how much he had to drink.  My nephew told him he had not been drinking.  The officer called him a liar and gave him the field sobriety test and blow test.  My nephew blew a 0.00.  The cop still kept asking him how much he had to drink and calling him a lair every time he said nothing.  The cop was so sure that he was drinking (remember, just minutes from having left work) that he arrested him for drunk driving even though the breathalizer measured 0.00 and then decided to hold him.

I think this is a case of false arrest.  I don't know what the probable cause was for pulling him over to begin with, but once he blew a 0.00, there should no longer be probable cause for a drunk driving arrest.  This same thing happened to a co-worker a few months ago.  Like I said, I don't have all the details of what happened last night, but it is the second instance of a cop ignoring the 0.0 reading.  If the breathalizer can't be trusted, then it needs to be taken off the street.

I would like to hear from the LEO about this practice.

Thanks,
Dennis



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[Don Hardcastle]

Dennis,
  I am not a LEO but I am a Police Academy instructor.  I do not know what the law is in your state, but here in Arkansas, the breathalyzer is not admissible.  The suspect has to fail a part of the field sobriety test.  The most common one failed and the one that is nearly impossible to pass if one has been drinking is HGN (horizontal gaze nystagmus).  That is a jerky side-to-side movement of the eyes they are directed to follow the pen, or some object, right and left.
 The other two tests in the standard field sobriety test (SFST) are the walk and turn, and stand on one leg.

Now having gone thru all of that, unless the cop was crooked, (which I am not suggesting) your nephew failed one or more of the tests in the SFST.

Like I said I am not a LEO, but here is some info for you.

Don



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[BigGeorge]

Dennis:

As Don explained, the Horizontal Gaze Nystagmus is tremendously accurate. As a former LEO I believe that less than 1% of the population have a natural nystagmus. If your nephew was arrested on suspicion of DWI (DUI) and the LEO performed the HGN, and your nephew failed based specifically on that phased of the test, this could mean 1 of 2 things... your nephew has a natural nystagmus OR the LEO does not know how to properly administer the test.

I was certified in Advanced DUI Detection and Apprehension, which includes certification to perform HGN tests. I'm not familiar with the law in your state, but in my state LEO's must be certified to conduct HGN tests. If the LEO was not certified, then that would be a bad thing. If the LEO was certified, and your nephew failed the HGN, then that would be probable cause to arrest him and he would have been acting in good faith... therefore it would not be false arrest.

No matter how you look at it, your nephew NEEDS a lawyer and that should be the only piece of advise you take from anyone! Good luck.

 

[hydrabusa]

that cop sucks...

 

[BusaWhipped]

Dennis:

As Don explained, the Horizontal Gaze Nystagmus is tremendously accurate. As a former LEO I believe that less than 1% of the population have a natural nystagmus. If your nephew was arrested on suspicion of DWI (DUI) and the LEO performed the HGN, and your nephew failed based specifically on that phased of the test, this could mean 1 of 2 things... your nephew has a natural nystagmus OR the LEO does not know how to properly administer the test.

I was certified in Advanced DUI Detection and Apprehension, which includes certification to perform HGN tests. I'm not familiar with the law in your state, but in my state LEO's must be certified to conduct HGN tests. If the LEO was not certified, then that would be a bad thing. If the LEO was certified, and your nephew failed the HGN, then that would be probable cause to arrest him and he would have been acting in good faith... therefore it would not be false arrest.

No matter how you look at it, your nephew NEEDS a lawyer and that should be the only piece of advise you take from anyone! Good luck.

Thanks for the information and advice. We will get a copy of the police report and take it to my lawer. Unfortunately, owning a Busa and having a good laywer go hand in hand.

 

[06BUSA]

Man that is terible. I am not one for sueing. Like people who burn themself's with hot coffee then blaming the maker of the coffee. But I would be looking for atleast a weeks pay from that horse's az.

 

[Revlis]

I'd be highly suspect of the story you have recieved thus far. Nephews, cousins, buddies, etc. often have a story FAR removed from reality, especially when it's family.

It's just what happens, at least it's what I've witnessed. Guy gets popped and develops attitude, goes to jail calls me up and claims he's in jail "For no reason".

Also, there is a real good chance that a person could fail the field sobriety test with a head full of marijuana. Remember DUI means UNDER INFLUENCE, NOT specifically booze. I'd not worry about it too much until you get the Police report. Once you have that and a sit down with the nephew the truth will likely surface.

I've seen it A LOT, "Clean Cut Kid" has family completely snowed, and is out rollin with a head full of X, Pot, MDMA, or whatever. I am NOT saying this is the case here Bro I am jsut saying that it wouldn't surprise me, it's pretty common.

Does that make sense? It's just that in general the LEO's I have met/known/In the Family have better things to do than hassle with anysort of arrest for "No Reason". It's just not something to do because you're borded. As for the False arrest? Forget about it, Lawyer or not there is almost NO WAY to prove in court that the leo had "No Reason" to pull your nephew over. It's too easy for the Officer to say he was weaving or "Driving Eratically" and it will hold up in court. Probable cause is what you see on TV, it's what the idiots on COPS always start spouting but it's simply too easy for a LEO to provide a decent cause.

Like I said I am not saying this IS the case, but that I might wait for more information before jumping to a conclusion...



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[BusaWhipped]

...  I've seen it A LOT, "Clean Cut Kid" has family completely snowed, and is out rollin with a head full of X, Pot, MDMA, or whatever.  I am NOT saying this is the case here Bro I am jsut saying that it wouldn't surprise me, it's pretty common.  

Does that make sense?  It's just that in general the LEO's I have met/known/In the Family have better things to do than hassle with anysort of arrest for "No Reason".  It's just not something to do because you're borded.  As for the False arrest?  Forget about it, Lawyer or not there is almost NO WAY to prove in court that the leo had "No Reason" to pull your nephew over.  It's too easy for the Officer to say he was weaving or "Driving Eratically" and it will hold up in court.  Probable cause is what you see on TV, it's what the idiots on COPS always start spouting but it's simply too easy for a LEO to provide a decent cause.

Like I said I am not saying this IS the case, but that I might wait for more information before jumping to a conclusion...

He's not a clean cut kid. Had alot of problems with the popo and drugs/alcohol when he was younger. He's been clean for almost 3 years now. His stint in jail scared the snot out of him. He doesn't want to go back and knows that he isn't slick enough to get away with it.

I'm sure there was cause to pull him over. He's gotten a few tickets in the last couple of months. But, unless he had proof, he should have ticketed him for the offense and let him come home. Like you said, we'll know more when the police report comes out.

 

[PDBusa]

As previously mentioned, VTL violations are enough to stop/detain/interview a motor vehicle operator, and SFST's are used for probable cause to arrest or DWI/DWAID.

The failure of an alco-sensor used in the street, at least by my state agencies, is equal to the failure of any SFST(walk/turn,One legged stance,HGN). I hardly use an alco-sensor. Most of my DWI arrests are well over the limit and can't pass anything, except into oncoming traffic.

Drug recognition is another facet of patrol and may have been why he was detained/arrested. I am not state certified in it and can't help with any info.

If he were in NY, once he was arrested he should have been given an oppurtunity to take an Intoxilyzer test. This instrument is highly accurate in determining BAC, and he will have known results of it immediately, or at least at arraignment. For a drug charge he will have needed to consent to a blood test. Failure to consent to either in NY is cause to be held until arraignment and immediate suspension/revocation of operating priviledges.

What did they advise him he was being charged with?

I agree with others, there may be some information missing from him.



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[BusaWhipped]

Thanks for all the replies. Just got the nephew home. The details are slightly different than the phone call this morning. He didn't blow a 0, he blew an unregistered several times. So he was charged with refusal to submit to the blow test for intensionally not blowing hard enough. His license is gone for a year. He was also cited for failure to maintain a motor vehicle in a single lane and dui.

I owe the St Charles police an apology. They acted appropriately and in the best interest of the public.

 

[300Busa]

DUI, driving under the influence could be more than just being drunk. You could a dui for driving while high on pot, etc. It all impairs your judgement while driving.

 

[PDBusa]

Thanks for all the replies.  Just got the nephew home.  The details are slightly different than the phone call this morning.  He didn't blow a 0, he blew an unregistered several times.  So he was charged with refusal to submit to the blow test for intensionally not blowing hard enough.   His license is gone for a year.  He was also cited for failure to maintain a motor vehicle in a single lane and dui.  

I owe the St Charles police an apology.  They acted appropriately and in the best interest of the public.

If he wasn't blowing hard enough into the instrument it will be considered a refusal. I've encountered that several times with guys trying to be slick. The instruments we use emit a tone at like .05psi. It's harder to blow a bubble with Bubble gum.

In NY he also wouldn't be eligible for a restricted lic. either.

He stills needs to lawyer up.

Hey Busa whipped, I just read your sig. line... if you need help getting rid of some loot, PM me! I'm here to help!!!

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[Don Hardcastle]

Busawhipped,
If he was indeed under the influence of something, it could have been much much worse. At least he along with everyone else, made it home alive.

Don

 

[BusaWhipped]

If he wasn't blowing hard enough into the instrument it will be considered a refusal. I've encountered that several times with guys trying to be slick. The instruments we use emit a tone at like .05psi. It's harder to blow a bubble with Bubble gum.

In NY he also wouldn't be eligible for a restricted lic. either.

He stills needs to lawyer up.

Hey Busa whipped, I just read your sig. line... if you need help getting rid of some loot, PM me! I'm here to help!!!  

Thanks for the info. Definately contacting a lawyer tomorrow. The sig line was a quote from Rythm.

 

[Revlis]

Thanks for all the replies. Just got the nephew home. The details are slightly different than the phone call this morning. He didn't blow a 0, he blew an unregistered several times. So he was charged with refusal to submit to the blow test for intensionally not blowing hard enough. His license is gone for a year. He was also cited for failure to maintain a motor vehicle in a single lane and dui.

I owe the St Charles police an apology. They acted appropriately and in the best interest of the public.

I gotcha Bro, Like the others said time for an attorney for sure. Hope it works out...

 

[BrianKesler]

Thanks for all the replies.  Just got the nephew home.  The details are slightly different than the phone call this morning.  He didn't blow a 0, he blew an unregistered several times.  So he was charged with refusal to submit to the blow test for intensionally not blowing hard enough.   His license is gone for a year.  He was also cited for failure to maintain a motor vehicle in a single lane and dui.  

I owe the St Charles police an apology.  They acted appropriately and in the best interest of the public.

Its good to hear you got the whole story and know what happened now. Im glad to see that you think the officer did the right thing instead of saying no no no, my nephew would never do that.....says a lot about you!

 

[BusaWhipped]

Thanks for all the replies.  Just got the nephew home.  The details are slightly different than the phone call this morning.  He didn't blow a 0, he blew an unregistered several times.  So he was charged with refusal to submit to the blow test for intensionally not blowing hard enough.   His license is gone for a year.  He was also cited for failure to maintain a motor vehicle in a single lane and dui.  

I owe the St Charles police an apology.  They acted appropriately and in the best interest of the public.

Its good to hear you got the whole story and know what happened now.  Im glad to see that you think the officer did the right thing instead of saying no no no, my nephew would never do that.....says a lot about you!

I don't know what to say. We talked about the dangers of drinking and driving and always having a designated driver or calling for a ride. We were at a party on Saturday together, and I made sure we had a designated driver for it. So its not like I'm telling him to do what I say not as I do.

He knew before making the decision that a dui would be the end of his life as he knows it. He has an appointment with a lawyer on Friday. The guy is good, but I don't see my nephew keeping his license after this. Refusing the blow test is an automatic 1 year suspension even if he isn't convicted of any of the other offenses. Of course, nothing is automatic if you have the right lawyer.

He violated one of the conditions for living in my house, so no matter what happens in court, he's going to need to move out. He doesn't work near where he's going to school and public transportation around the area is non-existent, so if he loses his license he will probably end up dropping out of school. I don't think there are appartments near his job, so maybe that's gone too.

Seems like he bought himself some very expensive drinks. I'm just glad he didn't hit someone on a bike. I have zero tollerance for drinking and driving, even if it is a family member.