CA DUI law

[mbpe912]

So after watching "Party Heat" on True TV, it seem that a Law enforcement Officer in the state of Ca can use force to obtain a chemical test? (Blood Draw?) Is this the case for anything in CA. The Deputy on the show said they had a "right" to evidence? Are you saying that a person in Ca can not refuse the chemical test? Because even if they do you can use force to take it?



If this is the case shame on CA. I can in Florida only use this type of force if there is a DUI crash, involving serious bodily injury, or death.

We can't use force to take any chemical test. If they refuse we then suspend there drivers licence. They can apply for a hardship licence though. The suspension for a refusal in Florida is 12 months the first time and 18 months on a second refusal.
F.S.S 316.1933
Statutes & Constitution :View Statutes : Online Sunshine

[CW45]

Originally Posted by mbpe912

If this is the case shame on CA. I can in Florida only use this type of force if there is a DUI crash, involving serious bodily injury, or death.

In OK we are allowed to take blood thru any means necessary when it involves a crash of death or serious bodily injury. The driver has no option to refuse. If they do then too bad so sad.

[mbpe912]

Originally Posted by CW45

In OK we are allowed to take blood thru any means necessary when it involves a crash of death or serious bodily injury. The driver has no option to refuse. If they do then too bad so sad.

No we can do the same in Florida if you have SBH or a death. But not for a normal DUI. The way the Deputy made it sound they could force you to give blood on a regular DUI!

[x_out86]

In wisconsin we are able to force blood as well. Part of Wisconsin's "Implied Consent" law. The law says that since having a D/L is a privilege, you consent to any chemical testing requested by law enforcement for the purpose of traffic law enforcement when you take possession of your D/L.

We dont force on 1st offense since it is just a forfeiture/fine, but once it is 2nd or greater it becomes a traffic CRIME and then we will force blood if you refuse testing. Our policy is to always ask for breath first and if they refuse on 2nd or more OWI, then they go to the hospital and get stapped into the restraint chair and we take the blood anyways. This also results in additional charges for "Refusal to take tests" as they again consented to any tests by taking possession of their D/L. However if there is a traffic crash involving injury or death, we automatically take blood.

Works good for me!

[mbpe912]

See in Florida we can't force it. Without the SBH and or death. Our Dl also is consent. However the first refusal is a suspension for a term of 12 months and 18 months for the second refusal. This is America and I have a problem with forcing someone to give into a chemical test. We as officers need to make the best case WE can with the whatever means we have available to us. However we should not cross the line of forcing someone to submit evidence in a traffic crime. We as citizens have a right to refuse. We also have the right to not self incriminate.

I can make most DUI arrest with out a chemical sample. If you are doing the job right. You will have ICV of there driving, which should include lane touching, delayed reaction, random breaking, passing out at a red light, ect.

You should also be able to get them to admit to drinking if you know what you are doing. Also you should conduct FST on the ICV. This is great evidence. I also repeat the FST in the controlled environment of the jail.

I can get a conviction without a chemical test with no problem. If they walk so be it. I bet they will rethink doing it again after they spend the night in jail and the several thousand dollars on Lawyer's fees.

I think the worst thing for us as LEO's are groups like M.A.D.D.

They make the DUI guys like robots and they do a lot of boarder line DUI's as a result of trying to win some bull **** award from some leftist group such as M.A.D.D! just my view as a LEO. I know I am in the minority here.

Originally Posted by x_out86

In wisconsin we are able to force blood as well. Part of Wisconsin's "Implied Consent" law. The law says that since having a D/L is a privilege, you consent to any chemical testing requested by law enforcement for the purpose of traffic law enforcement when you take possession of your D/L.

We dont force on 1st offense since it is just a forfeiture/fine, but once it is 2nd or greater it becomes a traffic CRIME and then we will force blood if you refuse testing. Our policy is to always ask for breath first and if they refuse on 2nd or more OWI, then they go to the hospital and get stapped into the restraint chair and we take the blood anyways. This also results in additional charges for "Refusal to take tests" as they again consented to any tests by taking possession of their D/L. However if there is a traffic crash involving injury or death, we automatically take blood.

Works good for me!

[x_out86]

Originally Posted by mbpe912

See in Florida we can't force it. Without the SBH and or death. Our Dl also is consent. However the first refusal is a suspension for a term of 12 months and 18 months for the second refusal. This is America and I have a problem with forcing someone to give into a chemical test. We as officers need to make the best case WE can with the whatever means we have available to us. However we should not cross the line of forcing someone to submit evidence in a traffic crime. We as citizens have a right to refuse. We also have the right to not self incriminate.

I can make most DUI arrest with out a chemical sample. If you are doing the job right. You will have ICV of there driving, which should include lane touching, delayed reaction, random breaking, passing out at a red light, ect.

You should also be able to get them to admit to drinking if you know what you are doing. Also you should conduct FST on the ICV. This is great evidence. I also repeat the FST in the controlled environment of the jail.

I can get a conviction without a chemical test with no problem. If they walk so be it. I bet they will rethink doing it again after they spend the night in jail and the several thousand dollars on Lawyer's fees.

I think the worst thing for us as LEO's are groups like M.A.D.D.

They make the DUI guys like robots and they do a lot of boarder line DUI's as a result of trying to win some bull **** award from some leftist group such as M.A.D.D! just my view as a LEO. I know I am in the minority here.

I would agree that you are probably in the minority here with your overall opinion. I am not looking to start a fight, but I have no problem forcing blood from somebody who is a 2nd or greater OWI offender.

Wisconsin law and the Wisconsin Supreme court have held that it is legal to force blood without a warrant, as there is an exigent circumstance due to the fact that the blood evidence is being destroyed by your body metabolizing the alcohol. Also covered under the same type of exigent circumstance of the Carroll Doctrine to conduct a "search" with out a warrant.

If people dont want to submit to testing requested by Law Enforcement for the purpose of investigating a criminal offense, then they dont have to. They just dont have to be given a drivers license, its as simple as that. Driving a vehicle is a privilege and not a right. If you dont want to have the police force you to take a chemical test when you drive drunk, then dont get a license and drive at all. If you want to have the extra privledge of driving a vehicle, then you must also abide by the extra rules that come with said privledge.

People tend to forget that just "because this is America" that they sometimes have to take responsibility for their own actions. Again, dont drive drunk and police are not going to force you to submit to a chemical test of your blood. If you dont like it, again dont get a drivers license, and nobody can force you to do such.

I also agree that a good case can be built without the chemical test results, but they are also great to have as it gives a numerical value of your level of intoxication. This is the reason that we have set blood/alcohol concentration laws, a .08 in Wisconsin and I believe all other states now. If we didnt have those numbers, and tests that show the level in a persons blood we would most likely be making arrests that would frequently be overturned due to crafty defense attorneys. The standard battery of FST'S that we give are proven to be fairly reliable, but many arrests are found void due to errors in an officers interpretation of these tests. I would rather be able to show a numerical value to the jury for these cases.

As far as our specific state law for penalties we are pretty in-line IMHO. As I said in the last post, the 1st offense OWI is just a traffic ticket and is not criminal. As such, we do not force as we are not investigating a crime of any sort. Once it becomes 2nd or greater OWI, then it becomes a criminal offense. If we have to, we will force a chemical blood test at this time. If they consent to tests and come back .08 or greater, then they get suspended for 6 months. If they refused, they automatically get their license revoked. Driving with a revoked license due to an OWI offense in WI is also a traffic crime and you get arrested.

Now dont let this lead you to believe that I am all about forcing people into a chair and taking blood out of them. It is pretty low on my list of favorite things to do, but I am all about getting drunk drivers off the road before they hurt anybody or themselves. By my forcing their blood, they are being required to submit to the tests that they agreed to do so when they got their license. Again....dont like it? DONT GET A DRIVERS LICENSE.

I would have the inclination to argue that thinking it is not right to force blood, I would ask if you agree it would be wrong to force a person who is a suspect in a murder case to submit to a DNA sample? Now of course in that case you will have a search warrant to do so, but its the same thing to me. Now of course I am not saying that murder and OWI are the same offense, but they are both violations of state law. The only difference is that we are allowed to take the blood without a warrant, because the state supreme court and the Carroll Docterine say that we can.

Again, just want to but my train of thought out there for everybody to ponder. If you dont like it thats fine, but at least know that I at least understand the LEGAL reasons that we are allowed to force blood, not just "Because I can".

-Brian

[mbpe912]

Brian while I respect your view on this matter, I disagree. They do give a consent when they get a DL. However they should have the ability to withdrawal there consent.

I like the way that Florida law in written in reference to the making you give blood. We punish you with taking away your privilege for a term of 12 months and 18 months or greater for the second refusal.

Yeah the whole DUI (criminal Traffic) to a murder suspect is not a great comparison. As you said a court order would be needed to get the DUI unless the suspect gave written consent.

Do you drive well over the speed limit to rush to the Breath test machine? That time is also allowing the BAL to decrease as well.

However in this case, you had a person in a boat who was driving and was stopped for making a wake. He refused to do FST and they tried to get him to do a PBT! HE asked his rights. The Deputy gave the usual are you going to blow or not. I don't know about CA but in Florida one can refuse FST as well as PBT with a suspension of there DL as they are not included in our chemical test. The Deputy told him that we have a right to evidence in the state of CA. This was a no injury no crash BUI. How in the hell do they have the right to make you give blood when there is no need for a DL to drive a boat?


I like to have enough driving on video that I can drop it to Wrecless driving if need be.

Dan you are a CA LEO care to chime in?

[Ajcrash]

Yes…assuming three conditions are met: 4

1. That the circumstances require prompt testing,
2. That the arresting officer reasonably believed that you were driving under the influence, and
3. That the test was administered in a medically approved manner in accordance with a lawful arrest.

A blood test is the only chemical test that could forcefully be applied. People have too much control over how they provide a breath or urine sample to force either of those chemical tests.
Let us explain how these three requirements are actually met.
With respect to the first, the California Supreme Court held that “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system” 5. This theory serves as the basis for why prompt testing is required.
The arresting officer will rely on his/her observations to support the second requirement. Your objective symptoms of intoxication, the manner in which you drove, and your performance on the FSTs will support the officer’s reasonable belief that you were DUI.
Finally, as long as you were lawfully arrested, a forced blood draw is legally authorized so long as (1) there is no unreasonable risk of infection or pain 6, and (2) the officer doesn’t employ “excessive” force to do so 7.

*Incidentally, even if you know that you aren’t guilty of DUI and are therefore being unjustly arrested, you are still required to submit to a chemical test if you have been “lawfully” arrested.

A “lawful arrest” simply means that the officer had “reasonable cause to believe” that you were impaired by drugs and/or alcohol at the time you drove.

Chemical Test Refusals in California DUI Cases


While I'm not a LEO, I remember hearing of this awhile back and was a bit surprised by it. It seems to me that it is in violation of ones 5th amendment right; though not actually on trial at the time you are still being forced to provide evidence against yourself.

DanP will probably be able to be more specific in regards to the law in question.

[x_out86]

Originally Posted by mbpe912

Brian while I respect your view on this matter, I disagree. They do give a consent when they get a DL. However they should have the ability to withdrawal there consent.

Thats fine and well, but again people need to take responsibility for their own actions. Probably the only reason people are refusing testing is because they are drunk and know they are busted, so now they decide that they dont need to follow the rules because they dont want to get in trouble.

Originally Posted by mbpe912

I like the way that Florida law in written in reference to the making you give blood. We punish you with taking away your privilege for a term of 12 months and 18 months or greater for the second refusal.

Like I said before, we do almost the same, but they get revoked if they refuse. Driving with revoked license = Arrest in Wisconsin.

Originally Posted by mbpe912

Do you drive well over the speed limit to rush to the Breath test machine? That time is also allowing the BAL to decrease as well.

No I dont...The jail is inmy jurisdiction and I am never more than about 5 minutes away from it. So I have no need to speed, plus we are required to start the 20 minute observation period for the test once we get to the jail.

Originally Posted by mbpe912

However in this case, you had a person in a boat who was driving and was stopped for making a wake. He refused to do FST and they tried to get him to do a PBT! HE asked his rights. The Deputy gave the usual are you going to blow or not. I don't know about CA but in Florida one can refuse FST as well as PBT with a suspension of there DL as they are not included in our chemical test. The Deputy told him that we have a right to evidence in the state of CA. This was a no injury no crash BUI. How in the hell do they have the right to make you give blood when there is no need for a DL to drive a boat?

They can also refuse to do field sobriety and the PBT in Wisconsin as well. At that point, its up to your other observations as to making the arrest. I think the problem here more lies within the specific officer trying to get a breath sample by being ambiguous to the offenders question(s).

As far as him being arrested as driving a boat and being forced to submit to blood, you never mentioned that before. We cant force for that either because it again is not a crime, just a DNR forfeiture.

Originally Posted by mbpe912

I like to have enough driving on video that I can drop it to Wrecless driving if need be.

Not an option for me, as we dont have cameras in our squads yet. So again, we go old school and have to rely totally on written report.

Best of luck to you. I understand and respect your opinion, but I just cant agree. Call me old school, but I guess I expect people to play by the rules all the time, not just when its convenient.

-Brian

[dogwalker3110]

This is how they take your rights away slowly so you dont notice it comming. F*** the government. This is how they get you in the "world data base" Welcome to the Soviet Union.