"no refusal" checkpoints

Tampa, Florida-- With New Year's Eve only days away, the National Highway Traffic Safety Administration expects this to be one of the deadliest weeks of the year on the roads.

But now a new weapon is being used in the fight against drunk driving.

It's a change that could make you more likely to be convicted.

"I think it's a great deterrent for people," said Linda Unfried, from Mother's Against Drunk Driving in Hillsborough County.

Florida is among several states now holding what are called "no refusal" checkpoints.

It means if you refuse a breath test during a traffic stop, a judge is on site, and issues a warrant that allows police to perform a mandatory blood test.

It's already being done in several counties, and now Unfried is working to bring it to the Tampa Bay area.

"I think you'll see the difference because people will not drink and drive. I truly believe that," she said.

Not everyone is on board, though.

DUI defense attorney Kevin Hayslett sees the mandatory blood test as a violation of constitutional rights.

"It's a slippery slope and it's got to stop somewhere," Hayslett explained, "what other misdemeanor offense do we have in the United States where the government can forcefully put a needle into your arm?"

The federal government says Florida has among the highest rates of breathalyzer refusal.

"Now you've got attorneys telling their clients, don't blow, don't blow! Because we know from the results from these machines that they're not operating as the state or the government says they're supposed to operate," said Stephen Daniels, a DUI consultant and expert witness.

Supporters, though, say you could see the "no refusal" checkpoints in the Bay area by October.

"We don't want to violate people's civil rights. That's the last thing we want to do, but we're here to save lives," Unfried said.

She adds that this type of checkpoint would be heavily advertised, with the goal of deterring any drunk driving.

U.S. Transportation Secretary Ray LaHood has recently said he wants to see more states hold similar programs.

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How can this be legal? What is the probable cause to stop someone just because they are driving a car.

Yeah, I'm not keen about people driving under the influence, but damned if I want to think that if someone mistakes my being a bit distracted while driving as being intoxicated that I could be FORCED to have blood drawn from me alongside the road. Do they have trained doctors and nurses there with them as well?

Talk about a perfect example of trading freedom for security...

This crap is getting REAL ridiculous....

Rich Z said:

Yeah, I'm not keen about people driving under the influence, but damned if I want to think that if someone mistakes my being a bit distracted while driving as being intoxicated that I could be FORCED to have blood drawn from me alongside the road. Do they have trained doctors and nurses there with them as well?

Talk about a perfect example of trading freedom for security...

This crap is getting REAL ridiculous....

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Wow, what a mess. I am really in favor of this law, but as you say we have to be concerned about our rights. I would like Shadow and other LEO's to comment. I find it hard to believe that some innocent guy would be convicted of DUI if indeed he was maybe just distracted or even just stopped at a check point.

If a person has been drinking and there is some doubt as to whether they are over the limit it seems to me if they're that close to being over then get them off the road. Have you ever driven on a two lane road and wondered if there was an impaired person driving the car coming at you? I have and it's a scary thought.

I have also been behind cars and it was obvious the driver was impaired and I don't hesitate to call 911 on the cell. I have no way of knowing if they're drunk, sick or just tired but they need to be stopped. The last one was on a two lane road and they were all over the place. The car swerved just in time to miss a bridge abutment and I really think the person would have been killed if they hit it.

A doctor or nurse is not a requirement to draw blood. The person just has to be trained and certified. I would be more concerned about who and how the blood is being tested.

This is the first I've heard of it, and would like to know exactly which counties are operating this way, and for how long?

It violates the basic premise of both the 4th:
http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

and 5th amendment:
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

against self incrimination and unlawful search & seizure.

Driving is a priviledge, one that can and will be revoked for non-compliance with the law (failure to submit to a lawful test...); however, I don't find anywhere in the statute, where having a judge on scene or otherwise, exempts law enforcement from the responsibility to act within the constitution!

If the suspected DUI driver were involved in a fatal or serious injury crash, then there is a provision for forced compliance by a qualified professional.

I suspect if they attempt to move forward with such chit in this county, they'll find themselves in the losing end of an expensive (read that taxpayer funded) lawsuit(s).
I also expect to see cases either dismissed prior to trial by another judge (one with some fecking sense!) or overturned on appeal at a higher level.

As others have said, I'm all for DUI enforcement.
Hell, I'm all for devised installed in cars that identify the driver and restrict your ability to start the vehicle above a certain BAC.

But I'm NOT willing to throw aside my constitutional right, for ANY reason, in tha name of safety or security....and for the record, I've been the VICTIM of a drunk driver caused crash.

The courts have once again overstepped thier authority (IMO) and when identified, the judges involved should be protested and as citizens, we should campaign to have them removed from office.

If the Sheriff or Chief of Police condone this blatant act of impropiety, then we as citizens, have a constitutional responsibility to work diligently to see that they have the ability to draw thier unemployment come next election if not sooner.
In the case of a Chief, the Mayor needs to go!

...just my humble opinion of course

Shadow said:

This is the first I've heard of it, and would like to know exactly which counties are operating this way, and for how long?

It violates the basic premise of both the 4th:
http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

and 5th amendment:
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

against self incrimination and unlawful search & seizure.

Driving is a priviledge, one that can and will be revoked for non-compliance with the law (failure to submit to a lawful test...); however, I don't find anywhere in the statute, where having a judge on scene or otherwise, exempts law enforcement from the responsibility to act within the constitution!

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I guess I don't understand what you're saying so I'm going to disagree for now.

If you're on duty and pull over a suspected intoxicated driver don't you tell them they have to take a breathalyzer test? If they refuse don't you take them to jail? And then to court? See where I'm going with this?

Looks to me like they're just expediting the process.

Bob K said:

I have also been behind cars and it was obvious the driver was impaired and I don't hesitate to call 911 on the cell. I have no way of knowing if they're drunk, sick or just tired but they need to be stopped. The last one was on a two lane road and they were all over the place. The car swerved just in time to miss a bridge abutment and I really think the person would have been killed if they hit it.

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Heck, I've seen idiots TEXTING on their cell phones while driving and they were all over the damned road. Either there is an awful lot of mid day drunk-ons around here, or it is merely the incidence of cell phone distractions while driving has greatly increased. I have been behind cars where it was obvious the driver was searching around for their cell phone, even trying to look under the PASSENGER seat while driving down the road! :ack2: I could PLAINLY see this through the back window of the vehicles. Matter of fact, I would have to say that drivers impaired by using their cell phones while driving are just as much of a danger, if not more so, than drivers impaired by consuming alcohol, simply because of the greater prevalence of this problem. The later is dangerous because alcohol impairs judgement and concentration. The former is dangerous because cell phones impair attention and concentration (as well as judgement, in that only a damned fool would do stunts like mentioned above searching for their cell phone).

And you have NO idea how much it tweaks my butt to have to think that it would be highly hypocritical of me to say on one hand that drivers shouldn't be pulled from their cars and FORCED to have blood tests undertaken alongside the road for the sake of safety, but then on the other hand to make a statement that using cell phones in a moving automobile should be banned for safety reasons.... :banghead: But I sure can THINK it... :rant:

Bob K said:

I guess I don't understand what you're saying so I'm going to disagree for now.

If you're on duty and pull over a suspected intoxicated driver don't you tell them they have to take a breathalyzer test? If they refuse don't you take them to jail? And then to court? See where I'm going with this?

Looks to me like they're just expediting the process.

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Scenario: On duty officer observes a "suspected" impaired driver.
Establishes enough PC to effect a traffic stop.

Fast forward....Standard questions, blah blah blah...SFT's...fails.

You request that they submit to an approved test for intoxication.
They refuse.
You advise them that they have no right to refuse and that thier driving priviledge will be suspended as a result of said failure.
They again refuse.

Assuming you have enough at this point, arrest, charge, issue another citation for failure to submit, take DL.

Blood draw is not allowed in less than a fatality or serious injury crash.
They still have the right not to incriminate themselves and we still do not have the right to force a blood draw (effectively a search).

Where law enforcement and the courts are attempting to subvert the issues, is by having a judge on scene to witness the events, establish PC, and sign a "search warrant" for the blood.

I don't like the smell of this, and it still violates a citizens right against self incrimination.

Searches and the warrants required, were meant for criminal cases, not criminal traffic!

Clearer now?

To clarify, "Technically" they're probably right by doing it this way.
Procedurally, it's gray.
Constitutionally, I think it circumvents the intent.
And overall, sets a terrible precedent for future intrusions into your life.

Shadow said:

Blood draw is not allowed in less than a fatality or serious injury crash.
They still have the right not to incriminate themselves and we still do not have the right to force a blood draw (effectively a search).
Clearer now?

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You're so smart. :lmao:

Yes, it's clear now and I appreciate the lesson. I thought a person had to submit to a blood test but in fact they're rewriting the rule book or I should say trying to rewrite the rule book. I could look into this further but I won't.

I think what irritated me the most about this thread is that I read attorneys specialize in defending DUI. I guess it's just a personal problem.

Shadow said:

And overall, sets a terrible precedent for future intrusions into your life.

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I think we all understand that part. Every day we just keep getting more crap forced on us and we'll never see the end of that. We could go several hours on this subject. I need to hit the sack.

Thanks bud. :thumbsup:

Its a good idea to get drunks off the road. But to just block off a road and check everyone and if I refuse stick a needle in my arm and take my blood?
I would rather they just setup in bar parking lots

I cant find anything about them being used over the weekend.

JACKSONVILLE
http://www.actionnewsjax.com/conten...controversy/IS0kvLPBBUKQPcte70K08Q.cspx?rss=1

I feel bad for those that have lost a loved one, but where will this lead?
If I get stuck at a check point and cant avoid it and there is no probable cause to test me except I am behind the wheel I don't know how I feel about that. There is less than a slim chance I will ever have to worry but I don't like the idea of check points that can force you to give blood. Perhaps its time to tighten the laws about refusing the Breathalyzer, if there is probable cause then I don't have a problem. But check points that can force you to give blood? What next scanning your plate and if its your birthday pulling you over because you could be celebrating?

To the Police on here, thanks for what you do. I have always taken responsibility for my actions. If this does happen I know you are just following orders and I wont give you a hard time. I know you wont be giving me a blood test on the side of the road.

I agree that this is a bad deal. Shadow gave a good explanation of procedures so under the existing laws what's the problem? Let's take the funding for this project and put more officers on the road. Use the unmarked cars to find the impaired drivers, not for speeders.

Bob K said:

You're so smart. :lmao:

Yes, it's clear now and I appreciate the lesson. I thought a person had to submit to a blood test but in fact they're rewriting the rule book or I should say trying to rewrite the rule book. I could look into this further but I won't.

I think what irritated me the most about this thread is that I read attorneys specialize in defending DUI. I guess it's just a personal problem.

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Yeah, I'm a real fecking genius:rofl1::rofl1:
Seriously though, I don't want anyone to misunderstand my statement.
Pursuant to Florida Statute, we as licensed drivers have no right
to refuseany test authorized by the state to determine a level of intoxication while operating a motor vehicle:

316.192:

(1)(a)1.a.Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.

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316.1932 (2)

(c)Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. As used in this paragraph, the term “other medical facility” includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test. A blood test may be administered whether or not the person is told that his or her failure to submit to such a blood test will result in the suspension of the person’s privilege to operate a motor vehicle upon the public highways of this state and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor. Any person who is capable of refusal shall be told that his or her failure to submit to such a blood test will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of the person has been suspended previously as a result of a refusal to submit to such a test or tests, and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor. The refusal to submit to a blood test upon the request of a law enforcement officer is admissible in evidence in any criminal proceeding.

316.1933(Reasonable force to obtain blood sample)

(1)(a)If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person.

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Bob K said:

I think we all understand that part. Every day we just keep getting more crap forced on us and we'll never see the end of that. We could go several hours on this subject. I need to hit the sack.

Thanks bud. :thumbsup:

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To give everyone a better understanding of how rediculous the wording is in some of our laws, how obviously they are not reviewed regularly, take a look at this exerpt from 316.1934 and see if you notice anything "unusual" in the wording?:

(1)(a)It is unlawful and punishable as provided in chapter 322 and in s. 316.193 for any person who is under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person’s normal faculties are impaired or to the extent that the person is deprived of full possession of normal faculties, to drive or be in actual physical control of any motor vehicle within this state. Such normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life.

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:lmao::lmao:

As to the implied consent and blood draws, I still think to do it the way it's implied in the article, is a violation of both the citizens constitutional rights, as well as a means to circumvent the Florida statute as it pertains to testing and enforcement.

As you can see here:

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

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All of the penalties as they relate to the drivers license, are administrative.; however, any information gained, may be used in any subsequent criminal proceeding.

Administratively, the results are the same...a suspension of your driving priviledge (more enhanced for refusal) for DUI.

I have always and still do believe, that the wording in the states DUI statutes was put there to enforce administrative policies on the driving public (restrict "lawful" driving abilities upon conviction), while protecting the citizens constitutional right against self incrimination (by allowing the opportunity to refuse with sanctions).:thumbsup:

A basic DUI is a misdemeanor.
There are administrative policies in place to deal with refusals.
Unless there's been a serious or fatal crash, I see no lawful means for a judge to even be able to sign a warrant for a blood draw?

Am I missing something?

Full text to Florida Statutes (2010):http://www.leg.state.fl.us/Statutes...ml&StatuteYear=2010&Title=->2010->Chapter 316

DUI section begins at 316.193

Bob K said:

I agree that this is a bad deal. Shadow gave a good explanation of procedures so under the existing laws what's the problem? Let's take the funding for this project and put more officers on the road. Use the unmarked cars to find the impaired drivers, not for speeders.

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Whoa home boy......!!
Now you're making fiscal and common sense!
We can't have that kind of talk in government:NoNo::NoNo::rofl1:

1) This wont deter anyone from drinking and driving anymore than the electric chair deters anyone from murder. Education for drinking and driving is the most effective.

2) I think in the fine print you signed for a drivers license, it says you have to submit to sobirity test or lose your license.

3) Check points have been held up in courts because its a privaledge granted by the state to drive a vehicle.

4) The drawing blood part at check points. Its a good work around loop hole in the process to have a judge at the check point. Example. The officer has cause to believe you've been drinking and requests you to submit to sobrity tests. You refused everything. He walks 20 feet over to the judge and swears out a search warrant to seize your blood because he thinks there's enough PC to believe you've been drinking or druging. Judge signs a pre-processed fill in the blanks warrant, and they either take you to the hospital or have an EMT at the scene to withdraw evidence from your body.

Its a pretty easy process which can be done any day of the week if everyone is in place.

I just dont see these check points happening often. Judges will have to work weekends and holiday nights to sign warrants. If your an elected official, your didnt get elected to bust your ass working nights and weekends with patrol units.

Hospital nurses or EMTs wont be thrilled getting subpeonas weekly. If a judge witnesses the drunk at the scene, he or she becomes a witness and will have to recuse himself/herself from the case causing more backlog for other judges.

So the manpower strain will be an issue. Realistically you can do this today via telephone call to the judge requesting a search and seizure warrant. With wireless internet communications, its that much easier.

Im for it but I dont see it happening much

My replies in red below for brevity.

Tampa Tuning said:

1) This wont deter anyone from drinking and driving anymore than the electric chair deters anyone from murder. Education for drinking and driving is the most effective.

I agree. Education and proactive work on the part of bar and restaurant owners/employees will do more than the enformcement.
Pinellas County shut down it's DUI squad due to cost vs. benefit.
Overall, DUI "squads" are inneffective resources.

2) I think in the fine print you signed for a drivers license, it says you have to submit to sobirity test or lose your license.

Implied consent.

3) Check points have been held up in courts because its a privaledge granted by the state to drive a vehicle.

Checkpoints have been ruled constitutional, as long as they follow certain guidelines. I don't think anyones' concerned about the checkpoints.

4) The drawing blood part at check points. Its a good work around loop hole in the process to have a judge at the check point. Example. The officer has cause to believe you've been drinking and requests you to submit to sobrity tests. You refused everything. He walks 20 feet over to the judge and swears out a search warrant to seize your blood because he thinks there's enough PC to believe you've been drinking or druging. Judge signs a pre-processed fill in the blanks warrant, and they either take you to the hospital or have an EMT at the scene to withdraw evidence from your body.

This is we will have to differ my friend.
It's not a work around, and there's no real loophole.
THere is NO PROVISION in the statute for a search warrant or a mandatory blood draw, on a non-crash, no injury basic DUI.
The implied consent is present; however, if you refuse, the administrative action is loss of license.
the "criminal" section of the refusal is redundant with the administrative actions.
The guidelines are black and white. No gray areas in this one.
Officer suspects, requests, you refuse.
Go to jail, lose license...the rest is a court battle.
Nothing allows a warrant or the application of force to draw blood.

Its a pretty easy process which can be done any day of the week if everyone is in place.

If we as citizens allow this to occur, you're right. Then what's next?

I just dont see these check points happening often. Judges will have to work weekends and holiday nights to sign warrants. If your an elected official, your didnt get elected to bust your ass working nights and weekends with patrol units.

Another good point. It could be done via video, and the judge woud never have to leave his/her rum and coke!
I've never seen this, and until now, never heard of it. If it is true and continues, I hope the judges have to come out on the coldest nights in North Florida and freeze thier asses off like the rest of us....

Hospital nurses or EMTs wont be thrilled getting subpeonas weekly. If a judge witnesses the drunk at the scene, he or she becomes a witness and will have to recuse himself/herself from the case causing more backlog for other judges.
Very true. That will get interesting very quickly.

So the manpower strain will be an issue. Realistically you can do this today via telephone call to the judge requesting a search and seizure warrant. With wireless internet communications, its that much easier.
Except that the judge has to witness the event. Of course we refer to my previous statement re: video...

Im for it but I dont see it happening much

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I'm dead set against it!
I hate DUI drivers, but what I despise even more, are those that will attempt to circumvent or subvert the system in the name of "safety and security!"

Tampa Tuning said:

4) The drawing blood part at check points. Its a good work around loop hole in the process to have a judge at the check point. Example. The officer has cause to believe you've been drinking and requests you to submit to sobrity tests. You refused everything. He walks 20 feet over to the judge and swears out a search warrant to seize your blood because he thinks there's enough PC to believe you've been drinking or druging. Judge signs a pre-processed fill in the blanks warrant, and they either take you to the hospital or have an EMT at the scene to withdraw evidence from your body.

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Shadow has explained that it's a violation of our civil rights and not legal. I'm tired of being walked on by those that know what's best for me. Just enforce the laws as written and add stiffer penalties. Sooner or later folks will comply.

Looks like we posted at the same time Shadow. Great minds...........:rofl1:

THere is NO PROVISION in the statute for a search warrant or a mandatory blood draw, on a non-crash, no injury basic DUI.
The implied consent is present; however, if you refuse, the administrative action is loss of license.
the "criminal" section of the refusal is redundant with the administrative actions.
The guidelines are black and white. No gray areas in this one.

Exactly. That's why you have a judge signing a warrant for a search if the PC is presented. They are simply presenting evidence of a crime to a judge and getting a warrant to search. No differance if a house, car, or business is being used to store evidence of a crime. Present PC to a judge and get a search warrant. Its the same thing they do for a felony DUI, but applying it to a misdemeanor statue.

It is kind of funny because the state is fighting themself saying administratively if you dont submit to testing, we are going to suspend your license to drive. Then the state is saying if you dont submit to testing, criminally we are going to search you, and if the evidence is presented a court order is issued, the search will move forward.

Take away the human body aspect out of it and its just another search warrant.

Tampa Tuning said:

THere is NO PROVISION in the statute for a search warrant or a mandatory blood draw, on a non-crash, no injury basic DUI.
The implied consent is present; however, if you refuse, the administrative action is loss of license.
the "criminal" section of the refusal is redundant with the administrative actions.
The guidelines are black and white. No gray areas in this one.

Exactly. That's why you have a judge signing a warrant for a search if the PC is presented. They are simply presenting evidence of a crime to a judge and getting a warrant to search. No differance if a house, car, or business is being used to store evidence of a crime. Present PC to a judge and get a search warrant. Its the same thing they do for a felony DUI, but applying it to a misdemeanor statue.

It is kind of funny because the state is fighting themself saying administratively if you dont submit to testing, we are going to suspend your license to drive. Then the state is saying if you dont submit to testing, criminally we are going to search you, and if the evidence is presented a court order is issued, the search will move forward.

Take away the human body aspect out of it and its just another search warrant.

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:banghead::banghead::banghead::banghead:

I need help Phil cause this is going over my head. How can a judge legitimately issue a warrant if there's not an accident? You're seeing something I don't. Maybe senility is setting in.