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NewslettersWho's the most lenient and strick police department? City, Port Royal, County
I myself have always heard conflicting opinions from friends and others about who is the most lenient and who is the most unforgiving police force in town. From my personal experience of being ticketed and warned, I've actually have to give praise to city police department (black squad cars), for their less demeaning approach when pulling you over. Once I was pulled on Battery Creek drive for going 46 in a 30, sounds like i was asking for it right? Wrong, I was definitely going 30, one reason because I had just seen the black crown victoria sitting right past the tennis courts a few minutes before. When he pulled me and stated how fast I was going, I stated how there's no way because I just saw you a minute ago and knew you were there waiting. He actually considered and found out that it was the recalibration of the laser gun that was malfunctioning and let me go without even a warning. With a port royal officer one night I was fairly given a chance at a field sobriety test after he had detected the presence of alcohol from inside my vehicle. I swear it was a situation we all dread, when you actually play it safe and drink one beer downtown, pick up a drunk friend, and end the night safely. Well my friend was the one smelling strongly of alcohol and he could still smell the one beer on my breath. I passed the field sobriety test (which is difficult sober unless your an olympic gymnast and you have perfect balance) and he made me call a friend within fifteen minutes or my car was going to be towed from the gas station where I had been pulled over. So technically he believed I was unable to perform behind the wheel, after I had passed the sobriety test. That had left me a little confused but still extremely relieved that I wouldn't be spending the next couple of nights in jail and ruined my driving credibility with a DUI. Please share your opinions or different situations positive or negative...
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If you really had one beer, your BAC would have been virtually undetectable once they got to a place where they could give you a test.
Rule #1 when pulled over - say NOTHING. "Have you been drinking tonight?" "I decline to answer." At that point you will be asked to step out of the car. Do so - slowly.
Rule #2. Refuse the FST. Say =- "No thank you, Officer. I refuse to perform the test." There is NO law or regulation REQUIRING you to perform an FST in any city or town in SC. The ONLY thing that can come from performing an FST is an arrest for suspicion of DUI. If you do not perform the test, then you are not doing things which give rise to them thinking you are driving intoxicated. There us NO 'passing' or 'failing an FST. The FST is DESIGNED to detect intoxication, it is not a 'fair' test. You CAN refuse it.
This gives the officer a choice, arrest you, or let you go. There is no option 3 of phoning a friend. If he arrests you, the ONLY justification he has for arresting you is why you were pulled over in the first place, which rarely is enough.
If arrested, there is NO evidence of intoxication. Think about it. He pulls you over for 'weaving.' Maybe you were hanging up the phone. HE thinks you are DUI. Ask ANY officer- they will tell you they 'intend to arrest' when they pull someone over, even if it is only a ticket situation. It is NOT an 'investigation.'
The ONLY evidence, until you are arrested, is whatver you were pulled over for. If you refuse to speak. And refuse the FST, what EVIDENCE is there to confirm the officer's conclusion you are intoxicated. Maybe there is a a 'smell' of alcohol, OK. Thats fair. Maybe not.
If there are no grounds for arrest, there is no requirement that you blow the alcohol test. If you are absolutely certain that the arrest has no probable cause, then you CAN refuse the blood alcohol test. The 'implied consent' is ONLY for the blood alcohol test only following a 'LAWFUL' arrest. Give that some thought.
That all being said, I would refuse to talk, and refuse to perform an FST. If the officer arrests you, you have NOT undone your right to remain silent and it is a tough call since they cannot use the fact of the 'failed' breath test as proof of the righteousness of the arrest to begin with. I have won several cases with smart clients who kept their mouths shut - windows open in the vehicle - turned away from the flashlight alcohol detector and refused an FST. Its not EZ and I never do it more than once - and only for BAC less than .05.
Thanks for the input and wisdom joe. I was wondering because I believe i've heard it before, that say you refuse the FST and your almost in the clear, if he proposes the breathalizer and you refuse, isn't that grounds for a license suspension??? And your right the test is unfair, while he was waving the pen in front of my eyes, asking me to focus on it, he was trying to talk to me to get my attention off the pen, and then when i look up at him to focus on what hes saying, he goes "sir look at the pen", lol
Lawyer Joe, Do you realize that you just cost Defense Attys of Beaufort Millions, well not really, there are still far too many idiots who will drive drunk, act stupid, forget advice of not taking the FST's or the DM Test and even go to a bench trial without a Lawyer. I know someone who for 15 years was married to a Cop and within 6 months of thier divorce they had two DUI's and they took the Datamaster both times and gave the arresting officer a easy case to win.
On the side of Justice, Don't Drink and drive, don't drive a car when you can't tie your shoes. Cooperate with the officers during the stop, they are people too. Honesty and respect will get you a long way. There is a 3rd option, though it's not in any law book, officers can have mercy and choose to not make an arrest, give a break or charge you with a lesser crime. There are too many reasons that they do this to talk about here. But the die is not cast until the cuffs go on. An officer knowing he has a weak case may let you phone another driver and get outta Jail Free, but being arrogant and uncooperative will result in one sure thing you will give them only two choices, Jail or Let you go, trust me on this, Officers will make the arrest to avoid the liability of allowing a drunk back on the road verses putting one in Jail and loosing at court. So Golf, you have many choices to make in life, drink, drive, walk, cab, smile, cooperate, argue, refuse, cuffs, no cuffs, lawyer fees, tow fees, honesty or a big fat lie.
49 years old, got my license at 16. I have NEVER driven intoxicated. Yep - I can easily say that. I have had wine or beer or drinks while out - but always stopped in time to lower my BAC. I know from my weight and general tolerance how much I can have to get to .05 - which is my limit and not presumptively intoxicated. But them, unlike most people, I think of consequences before I do something.
Remember - an 'odor' of alcohol lasts on your breath for HOURS after you stop drinking AND hours after you are under .05 or even .01. This is NOT grounds for arrest unless the officer knows you have been drinking and when. Remember "I refuse to answer the question."
Ron White had a great line about intoxication where he said he had the right to remain silent, but not the ability.
The problem is that once you say "I refuse to answer the question" or "I refuse to perform the FST" there is not a cop in the world who sees standing on your rights as 'cooperation.' Police do not expect anyone to exercise their rights and get angry when they do - admit it blue. You are human, and in a role where you expect compliance. Rights are thing that just gets in the way.
Cops want you to do what they want, and if you refuse, even if your have the RIGHT to refuse, you are not cooperating.
I'm sorry here Blue - I just do NOT see a situation where a person can remain silent and refuse an FST and get option 3. And if they give you grounds for arrest, you HAVE to arrest them. You really do not have a choice. So option 3 is the rare set of facts indeed.
We sometimes forget that it is perfectly legal for an adult to consume alcoholic beverages. It is also legal to drive after doing so as long as you are not impaired or over the legal BAC limit. It has become common practice for police officers to demand a field sobriety test if they smell even the slightest amount of alcohol on someone's breath. As Joe said, the only intelligent thing to do is to exercise your rights and refuse that test. The test is biased and seldom will you pass it. Also refuse the breathalizer because it is not accurate and, who knows whose mouth was on the device prior to yours. They may replace the mouth piece, but the tubes can still contain germs or viruses left by the people who used the machine before you. If you follow these procedures and keep your mouth shut, your lawyer will have something to work with on your behalf. Many people who are arrested for DUI are not in fact drunk or impaired, and some of them are convicted even thought they were not violating the law. Be smart, and do not drive if you have had too much. If you are stopped, be quiet and don't play the game.
I certainly hope that anyone reading these boards and listening to this "advice" makes an effort to speak with someone with the Sherrif's or Police departments (or YOUR lawyer)about just what the consequences are for refusing to take a FST. I'm pretty sure the office is not just gonna clap you on the back and say "OKAY, See Ya!". And if you are pulled over for weaving because you were using your cell phone, the officer can always charge you with reckless driving if you tick him off. he's out there to protect everybody - me, my wife, my kids - hundreds of innocent people whose life he might save if he's not standing there dealing with your little games.
I dunno but I call them Constitutionally Guaranteed Civil Rights.
Refusing to speak is the 5h Amendment Right Against Self Incrimnation along with the right to counsel before speaking to an officer of the law about a crime S/HE is investigating.
Refusing the FST is the same thing.
It actually takes LESS time for me to refuse the FST than it takes for me to take the stupid test. No is a lot shorter than, "what do you want me to do? Which line, which left foot, etc etc etc." No is simple. I'm not doing it, next step. I have no doubt I'll be arrested for something. Thats the game. Then the issue is what was the probable cause? My invoking my rights that angered the officer? He'd better obtain a conviction because without one he is in a world of hurt. He'll be spending a lot of time in remedial classes if that the case. Plus a mark on his/her record for violating citizen rights. I'm all for being personally responsible for your actions. But if I do something that causes me to be pulled over I'm not helping the officer convict me.
Why would I need to consult with the police about an FST? The police enforce the law. The want me to take the FST. My right is to refuse. Actually, the two times I have refused the test, both times after refusing to cooperate at a DUI checkpoint, I was released because I was not drunk. What does the question mean, anyway? "Have you been drinking today?" "Why yes, officer, had 2 cups of coffee in the morning, then a glass of OJ. A bottle of water, which I refilled and then a diet coke. Is that what you want to know?" Then you get the stupid look. "Oh, you want to know if I've been drinking alcoholic beverages? Why didn't you SAY that? Ask the question you want the answer to, not the one I have to assume you are asking."
The police can charge me with any moving violation at any time. Remember, they have cameras. They don't lie. In Beaufort County its a nolle without an accident or injury or a DUI. If talking on your cell is a crime then every cop needs to be cited because they are talking on them all the time - and you know that ALL of them are business related, right? Yeah. I just want people to realize that there is cooperating with an investigation unrelated to you personally, and then there is the I'm gathering information to convict of a crime cooperation.
I dunno but I call them Constitutionally Guaranteed Civil Rights.
Refusing to speak is the 5h Amendment Right Against Self Incrimnation along with the right to counsel before speaking to an officer of the law about a crime S/HE is investigating.
Yeah, and from recent personal experience, my family discovered that, around here, you're more often guilty until proven innocent, than innocent until proven guilty. I believe you should exercise your rights to the fullest extent of the law, otherwise you may live to regret not having done so.
yep, going thru some spiel about drinking coffee, water, tea, etc. when asked if you've been drinking by an officer (and you KNOW what the officer means) is certainly a constitutional right...where did anybody say talking on a cell phone is a crime - swerving all over the road because the driver is talking, texting and NOT paying attention is reckless and dangerous and that person needs to be stopped - could have saved a tree in downtown Port Royal a few weeks ago - lucky it was only a tree and not somebody's kid - pretty close to the school...watch the road and turn the dam phone off. I would imagine consulting with someone in LE would give you a better answer as to the consequences for refusinfg to take the FST..., not if you should or not. I never said DON'T refuse the FST - just said better know what the consequences are.
What DOES the officer mean?
[on the stand].
Officer: "I asked the driver if he had been drinking."
Lawyer: "Drinking what?"
Officer: "Alcohol."
Lawyer: "Did you ever ask the driver if he had been drinking alcohol?"
Officer: "No."
Lawyer: "Well, what was the answer?"
Officer: "He said yes."
Lawyer: "Did you ask him what he had been drinking."
Officer: "No."
Lawyer: "you assumed he meant alcohol, right?"
Officer: "Yes."
LAwyer: "He could have meant coffee, or soda or water, though, given what you asked?"
Officer: "Yes, but in the context."
LAwyer: "Objection, testimony is about to assume what the driver believed."
Judge: "Sustained."
Lawyer: "What other evidence of intoxication was there at that time."
Officer: "Well, I pulled him over for not using a turn signal."
Lawyer: "Is not using a turn signal evidence of intoxication."
Officer: "Not by itself."
Lawyer: "what else was there?"
Officer: "He said he had been drinking."
Lawyer: "Well, we already established that could be water, coffee, iced tea or soda, correct?"
Officer: "Yes, but . . . ."
Lawyer: "What else did you observe?"
Officer: "Nothing, until the Datamaster test.'
Lawyer: "We'll get to that in a minute. Did the defendant fail the field sobriety test?"
Officer: "He refused to take it."
Lawyer: "The question was did he fail it."
Officer: "No."
Lawyer: "Does he have to take the Field Sobriety Test under Police Department rules?"
Officer: "No."
Lawyer: "what probable cause did you have immediately after the refusal of the FST to suspect drunk driving."
Officer: "He said he was drinking."
Lawyer: "Other than that?"
Officer: "Nothing"
Lawyer: "Move for a directed verdict of acquittal your honor. There was no probable cause for arrest. The officer pulled over the driver for not signaling a turn. He thereafter asked him a vague question that he admits could be drinking alcohol or any other liquid and he never followed up. Thereafter, Mr. Defendant did not take a FST and there are no other grounds for arrest. Thus, absent such grounds, the datamaster test is not admissible absent a valid arrest. There is no factual evidence from which a reasonable jury could conclude that Mr. Defendant was driving while intoxicated."
Prosecutor: "We object to the motion on the grounds that the defendant was over the legal limit when tested. The arrest for not using a signal light was proper, thus there are valid grounds for arrest even if the grounds used are not valid."
Lawyer: Arresting someone for a tail light is fine, but compelling a breathlyzer test as a result is not. The implied consent law requires that the person be arrested for suspicion of DUI, not for jaywalking or not using a signal light."
Judge: "Motion granted. Case dismissed. Mr. Prosecutor, the police need to have the facts before they arrest people willy-nilly based on assumptin and 'what everyone knows they mean.'"
I never said that annoying someone intentionally is a Constitutional right, nor did I say asking stupid questions of an officer such as "Do you mean water?" makes any sense. The question I would ask is "Do you mean drinking alcohol?" Make him say it. Or not, if you want to keep it vague.
What I DID say was they remaining silent, refusing to answer questions and refusing the FST ARE constitutional rights - stop twisting the common sense of what I say, since you are so fast to employ that same common sense when we are all supposed to know what the officer means when they ask an ambiguous question.
oh puh-leeez - talk about twistng - now you set up this whole scenario based on the single (arrest, court trial) fact that an officer asked if a driver was drinking and not what he/she was drinking? In the real world, the officer would have had reason to believe the driver was drinking enough to pursue the arrest, slurring voice, red eyes, smell of alcohol - no single factor. No officer in their right mind would arrest anyone on the fact that the driver answered YES to THAT question, clap on the handcuffs for that response only and haul you away...and not using a turn signal?
and by the way - if you are remaining silent and excercising your constitutional rights, how can you answer at all?
If you don't want it(license) to go don't blow. More people ought to refuse the field test. I once saw the cops try to demonstrate the test in court in Hampton and he almost fell trying to do it!! The Attorney asked him if he was drinking.LOLFD Like the Attorney said later. "I never did see any person walk like you wanted him to walk. Do yall consider that normal?" Do not ever try to recite your ABC's for some jerk espescially backwards.
I've tried reciting the alphabet backwards (while sober). It's kinda difficult.
DUI VIDEO ...funny funny...WATCH
http://www.youtube.com/watch?v=Y-pO6D90X5c
I have every physical (hate to say disability) ....well, wear contacts, that messes up the "watch the pen" thing, a bridge that supposedly skews the breathalayzer, two bad knees and problems with vertigo due to an tinnitus (damaged nerves)inner ear thing............jeez, come to think of it, maybe I shouldn't be driving anyway.....
golfman, I have not been pulled over by local law enforcement since being a licensed driver here in Beaufort, so I cannot comment on who/whom is more lenient or strick. Knowing several officers throughout our local departments, I can say that in their travels they come in contact with a number of non-law abiding folks present in our society - including those who refuse to be polite and compliant.
joe, I know you are doing your "lawyering" here by providing "a way out" (evasiveness), and actually enabling those to drive after even one "alcoholic" drink, but rather should not folks be encouraged to act responsibly and within our established laws? From your recent and previous comments, it appears you have a beef with law enforcement. Instead of criticizing our dedicated and selfless officers, get with our law makers and change/enhance what is currently on the books. Our officers only enforce what we as citizens allow our law makers to do.
What is the genuine purpose of a FST? Is it really to see if you can walk in a straight line without wabbling? Or watch a pen move in front of you without turning your head? Isn't it more about having clear thinking and being able to follow the directions? I have had eye doctors wave pens in front of me and I can never focus on the pen when he's talking. Like one blogger said, I want to look at the person talking and not the pen. I've never been given an FST ( I'm always the DD) but I've seen enough episodes of Cops to get an idea of how it works. Anyone have an idea what these tests are suppose to really prove?
Kandk the purpose of an FST is to determine if someone is impaired or not. There are several things officers look for while these tests are being performed. With each test, officers look for different things. I don't want to give all the secrets away...but you would be amazed at how many folks can not follow simple directions...ie "Stand with your arms at your side and your feet together and watch as I perform this test for you, do not start this test until I tell you to do so." There are so many people that will start while the officer is giving instruction and demonstrating it. Officers look for wabbling, but other things as well. I truly believe if you were on the side of the road and the officer told you to follow the pen with your eyes and eyes only and to keep your head still, you would. The HGN or horizontal gaze nystagmous is a great test to give someone who says they have leg problems, etc...they aren't required to move anything but the eyes. The HGN is also a detrimental way to see if someone has been using prescription or illegal drugs.
The DUI law is about to change again in 2009. I can't remember all the changes, but I do know they will be more officer friendly. You have lawyers such as Joe (no offense) who will use the fact that the defendant wasn't mirandized on the side of the road and there goes the whole case. I do know that if you REFUSE the breath test after the date in 2009, your license is gone for 6 MONTHS!!! I think it's great. The DUI needs to be more officer friendly so these dirt bag drunks don't get off so easily. DUI's are expensive, but the day they kill someone is terrible. You can't put a price tag on someones life.
So can I stay at home. More officer friendly? It's all officer discretion and opinion now! Refusal to blow in SC has resulted in a 6 month suspension for years, it is nothing new in 2009. I was hauled in on a DUI charge once in my life at the age of 29. I had honestly had less than 1/2 of one beer during the prior 24 hours. How did I manage to get arrested? I did pay attention to the officers, and successfully did exactly what they asked. And I had no problems until one of them asked me to recite the alphabet backwards. I naively made the attempt (the attempt to do something I did not know how to do and had never done before). "ZYX".....handcuffs!!!!! The premise was that if you even tried to comply that you must be impaired. I was simply trying to cooperate and it never occured to me to tell them that I didn't know how to do it. I demanded a bloodtest which was your right in that state, and far more accurate than a breath test. I went to court, and viola; BAC .01, case dismissed! I never drink and drive! I drink, and I drive, but never at the same time. Ask anyone who attended the Blixxer, I brought a driver even though I had only 2 beers (my 230 lbs body weight can handle that at far less than .05 but I still won't drive). I do not think that driving drunk is something that anyone should do, but, sometimes people who have had a drink or two and are not impaired are taken away anyway. We could easily make this a fair and safe situation with the implementation of breathalizer controlled vehicle ignitions. Blow hot, and the vehicle won't even try to restart for over an hour, blow hot again, and the cycle repeats. And yes, they do exist and are very inexpensive. It would remove opinion from the deal, and frankly, some LE officers exercise opinion simply to show their perceived power. Most are fair, but there are a few that are not. Bottom line, pull me over now, I'm not talking, I'm not doing the dance, and I won't blow into any germ infested tube. My lawyer can handle it, and I just gave him a strong case.
I just gotta comment, I been outta town and have not blogged in 5 days.
1st Driving a Vehicle on the Roadways of SC is a Priveldge not a Right. Start with that and then add on the issues of the Const Rights and procedural issues. DUI is a very serious crime and I think that along with the knowledge of how to best beat a DUI Case against you should go the knowledge that Drinking and Driving will get you or someone else killed.
When I referred to Option 3 it was regarding a driver who is cooperative, being uncooperative limits the options that the officer has. in the real world, the system is a perpetual motion machine of itself. Officers and Attorneys are the Conveyor Belts that move the product along, the drivers move through the system, weak ones (cases) are discarded by the quality control inspector (Solicitor) and then eventually the product makes it through the machine and the final inspector (Judge or Jury) lets it go or puts it in the trash pile. Jury Trials usually come to trial after 8 to 12 months because the council has given up the speedy trial right and "Muddied the Water" with motions and Lawyer games like putting the case off until the arresting officer or a critical witness has left the area or is unavailable and then they hijack the trial and sneak out with a Not Guilty verdict.
Just remember, the Cops enforce laws that the people you elected made law and set the standards and penalties. It's like Shooting the Messenger, Why? It's not his fault you got blitzed and chanced the 10 minutes ride home or that you just are a bad driver and the officer was protecting the public at large. You can change your story when a drunk driver kills one of your family members and you wonder how they walked outta jail and never had a second thought about his crime or his responsabilities.
I am wholeheartedly against drunk driving. It is against the law and dangerous, and I think it is wrong that those who are really DUI should be able to get away with it. That said, I also know that some members of law enforcement and the judicial system are exceedingly corrupt and will tread all over a person's basic constitutional rights when it comes to other types of offenses, so why should that not be the case with a suspected DUI? I currently have a family member who has been forced to spend a lot of money to defend themselves against a charge for a crime they did not commit. They were in the wrong place at the wrong time, and believed the wrong person. They could face jail time if convicted, and yet did NOTHING WRONG! And to everyone who says, the truth will come out at trial, that's crap. Especially when strings are being pulled by a member of the court just to get the case moving. Front-line law enforcement did not believe there even was a case, but someone "higher up" is pulling strings for the sake of misguided revenge.
No one will ever convince me that a person in Beaufort County can expect to be treated fairly. They can hope, but not expect.
Was your family member arrested or charged with a traffic violation or a crime initiated by a Cop witnessing it? Or were they arrested on a warrant issued by a Judge and signed by another party who was the possible victim? It will make a difference. Let us know
Was your family member arrested or charged with a traffic violation or a crime initiated by a Cop witnessing it? Or were they arrested on a warrant issued by a Judge and signed by another party who was the possible victim? It will make a difference. Let us know
This was one of those cases talked about on another thread where the arresting officer worked with the defendant and their lawyer on when and where the defendant would turn themselves in. There was no preceding ticket or arrest. The defendant hired an attorney because they felt they were being unfairly targeted. The "turning in" has not happened yet, so we are not sure if the warrant is coming from the investigator or a "victim". I know this person is not guilty of the crime they are charging them with, but it is a matter of one person's word against another's. What seems so unfair to me is that throughout the entire situation, the feeling has been that this person is guilty until proven innocent, rather than the other way around. It has really changed my viewpoint on the judicial process and the fairness of law enforcement. I know that most LE officers are fair and are only doing their jobs to the best of their abilities, but when innocent people have their families and names dragged through the mud simply because they made an error in judgement and trusted the wrong person, the system is not working the way it's supposed to.
Ok, From your response I assume that a private citizen is pursuing charges against your family member, if that is the case, then it is not law enforcement that is putting them in jail or dragging them through the mud. It sucks to say but who ever is pressing the charges can do so with very little evidence to prove the charge. Judges do not make that decision when allowing someone to sign a warrant. If you were able to convince a Judge to issues a warrant on anyone you probably could. The Trial is when guilt is determined, the warrant, arrest, and legal process is just the first steps to Justice. We are talking about two sides of the same coin, the victim feels justice is pursuing charges and the suspect feels that no wrong was done and a misunderstanding was the worse thing that happened. Also, would it be better that since (I am assuming) this is a non-violent crime and both parties have legal representation that allowing your family member to turn himself in is wrong and that arresting him at 2am and taking him out in cuffs in front of his family is better. The system has the ability to be compassionate but the S/O can't determine guilt or innocence, especially when it is one citizen against another. Your view of law enforcement officers should not be challenged by this event, they are acting on the behalf of a "Victim" at the direction of a Judge if they issue a warrant. Yes, innocent people get arrested, and some even get convicted, but no justice system is flawless and no jury perfect. The Cops do the best they can and only use the law as thier basis and foundation. I hope Justice is served and the innocents are vindicated and the guilty pay the price. Trust is a terrible value to loose.
DaddyBlue, I understand everything you are saying, and I know that LE has a job to do. Things get frustrating when someone you love is being wronged and you don't really know who to blame. I thank you for your insight and will try to keep an open mind throughout the process. I'm not sure I understood your statement about turning in versus arresting at 2 am. I know that the fact that the LE officials involved have allowed the person to turn themselves in means that they are being "compassionate", and I am sincerely grateful for that. Maybe this will all turn out the way it should, which would go a long way toward restoring my faith in the justice system.