"no refusal" checkpoints

[Tampa Tuning]

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.

[Bob K]

Originally Posted by Tampa Tuning

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.

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.

[Z06 Rocket]

As it stands now the 1st refusal gets your license taken away for a year "admistratively" and thats all. A second or beyond refusal gets your license taken away "Admistratively" for 18 months - AND - you get an additional criminal charge. If its your first refusal it's just a ticket. Second or more refusal and your misdemeanor (or felony if its serious crash or more than 3rd DUI in 10 years) is in conjunction with a misdemeanor "Refusal to submit to testing".

As it stands now there is no way to force a blood draw except in DUI cases where a crash occurred with serious injury (making it a felony case). The change just makes it lawful to force a blood draw if there is Probable Cause to believe someone is impaired WITHOUT the serious crash occurring first.

I see it as a very good proactive step in the right direction. They will not be randomly forcing blood from anyone. They will have multiple clues to make probale cause affidavits that they believe you are under the influence long before any needle is put to a vein. It is all sworn to in court, and I guarantee no cops I know would risk their career, home, and family as well as their freedom to make a BS DUI arrest. It is the same thing as we have now - except the "suspected impaired driver" cannot legally refuse the breath test or it becomes a forced blood test. If you are not impaired it will never go that far and you will be out of the checkpoint in a minute or two.

If the people don't drink and drive (or dope up and drive) and there is nothing to worry about. Use a designated driver (friend - taxi - etc) or drink at home. I have no sympathy for drunk driving arrestees, only the victims of the impaired drivers when a crash occurs. It is a conscious decision to drive after becoming impaired, no one forced the person to get behind the wheel at gun point.

[Shadow]

Originally Posted by Z06 Rocket

As it stands now the 1st refusal gets your license taken away for a year "admistratively" and thats all. A second or beyond refusal gets your license taken away "Admistratively" for 18 months - AND - you get an additional criminal charge. If its your first refusal it's just a ticket. Second or more refusal and your misdemeanor (or felony if its serious crash or more than 3rd DUI in 10 years) is in conjunction with a misdemeanor "Refusal to submit to testing".

It looks like you and I posted about the same time and are saying the same thing relative to the charges and administrative actions, as well as the procedures to be followed.

As it stands now there is no way to force a blood draw except in DUI cases where a crash occurred with serious injury (making it a felony case). The change just makes it lawful to force a blood draw if there is Probable Cause to believe someone is impaired WITHOUT the serious crash occurring first.

Then the legislature needs to address this and write it into law.

I see it as a very good proactive step in the right direction. They will not be randomly forcing blood from anyone. They will have multiple clues to make probale cause affidavits that they believe you are under the influence long before any needle is put to a vein.

As long as it's a long list of "clues" to establish PC so as not to become abused, and the warrant is done preferable after enough PC exists to make the DUI case in the first place, then I don't have a huge issue with it.
Otherwise, I'm still opposed.

It is all sworn to in court, and I guarantee no cops I know would risk their career, home, and family as well as their freedom to make a BS DUI arrest. It is the same thing as we have now - except the "suspected impaired driver" cannot legally refuse the breath test or it becomes a forced blood test. If you are not impaired it will never go that far and you will be out of the checkpoint in a minute or two.

I don't see that as necessarily the case.
Unfortunately, I've had more than one opportunity to review "creatively written" reports
In all these cases, I've never had an agency take action against the officer in question

I agree with you that 99% of all LEO's I've known or worked with over the years are/were hard working, dedicated individuals who believe in the system and work within it

It's the 1% that I'm concerned with, that makes such an invasive method on a traffic related issue, more concerning.

As we all know, there will be those that attempt to abuse the newfound freedom. All we can pray for is the judge on scene is astute enough, and there's enough oversight, to keep this from happening.

If the people don't drink and drive (or dope up and drive) and there is nothing to worry about.

That may not be the case.
A medically impaired driver, a distracted driver and a fatigued driver, may all exhibit some or all of the clues related to DUI.
Hopefully, the results of a SFST will remove any question.

Use a designated driver (friend - taxi - etc) or drink at home. I have no sympathy for drunk driving arrestees, only the victims of the impaired drivers when a crash occurs. It is a conscious decision to drive after becoming impaired, no one forced the person to get behind the wheel at gun point.

As the former victim of a DUI driver (still have the reminders), and friend to many that were also victims, some still living, others deceased, I have to agree 100% with you there.

No sympathy for them!! No one forced them to drink and drive!

My only concern in this matter is for "justice" and thre preservation of our constitutional rights

Stay safe out there!

[Tampa Tuning]

An accident which is a civil issue can turn criminal but isnt an issue here.

The judge is issuing a warrant based on the officers statement at the scene that the officer believes that contraband of a criminal act (alcohol or drugs in DUI) are being stored inside the drivers body.

Same theory as the officer gaining information that there's a grow house at 123 elm st from a reliaible source who has proven his reliaiblity, then applying for a search warrant for the house.

You can smoke ten pounds of weed, snort ten pounds of cocaine, and choke it down with sweet ice tea from sonnys and ten oxys and pass a breathalizer or intoxilizer all day.

[Shadow]

Originally Posted by Tampa Tuning

An accident which is a civil issue can turn criminal but isnt an issue here.

Not sure I frollow you here?

The judge is issuing a warrant based on the officers statement at the scene that the officer believes that contraband of a criminal act (alcohol or drugs in DUI) are being stored inside the drivers body.

Same theory as the officer gaining information that there's a grow house at 123 elm st from a reliaible source who has proven his reliaiblity, then applying for a search warrant for the house.

I see what you mean, but I still disagree:

Again, I disagree.
Human Body vs. Property.
Criminal "traffic" (by default) vs. True Criminal.
Provision in statute vs. no provision in traffic statutes.

You can smoke ten pounds of weed, snort ten pounds of cocaine, and choke it down with sweet ice tea from sonnys and ten oxys and pass a breathalizer or intoxilizer all day.

And you'd know this how? (JFWY man!)

[Tampa Tuning]

what can I say. I like Sonny's sweet tea

[Shadow]

Originally Posted by Tampa Tuning

what can I say. I like Sonny's sweet tea

...Exactly

[Z06 Rocket]

Originally Posted by Shadow

As long as it's a long list of "clues" to establish PC so as not to become abused, and the warrant is done preferable after enough PC exists to make the DUI case in the first place, then I don't have a huge issue with it.
Otherwise, I'm still opposed.

I don't see that aspect changing. The PC will still be there, it's just that once the probable cause is established the blood draw is mandatory, not optional if they refuse the breath. The arrest would still be the same as it always has been, it's just the law is being re-written (or case law established) to show that once a crime has been committed (DUI / drugs or alcohol) then the state no longer has to lose the time sensitive evidence while the body works it out of the system.

Originally Posted by Shadow

I don't see that as necessarily the case.
Unfortunately, I've had more than one opportunity to review "creatively written" reports
In all these cases, I've never had an agency take action against the officer in question

I agree with you that 99% of all LEO's I've known or worked with over the years are/were hard working, dedicated individuals who believe in the system and work within it

It's the 1% that I'm concerned with, that makes such an invasive method on a traffic related issue, more concerning.

As we all know, there will be those that attempt to abuse the newfound freedom. All we can pray for is the judge on scene is astute enough, and there's enough oversight, to keep this from happening.

I assume there are "bad apples" in ANY profession, be it Law, Judicial, Private sector or wherever, but holding off on a good proactive advance to the DUI enforcement because of what you call 1% (I see it as much less %) of someone "creative writing" is not a good enough reason to stop the progress. I KNOW that the bad apples get weeded out and are not a measurable part of this equation. Letting one ruin it for all is not the correct answer. The victims of DUI crashes would beg to differ with that stance and want to see progress.

There is no 100% perfect answer, but this is a step in the right direction (in my opinion). The DUI laws need to be enforced more, they need to be more severe, and they need to be easier to prosecute by both the LEO and the courts. The system is way too cumbersome and outdated which causes a lot of LEO to turn away from a DUI arrest because of the hassle on scene, and in court along with the many many many hours invested in one simple misdemeanor that most likely gets plead down to a lesser charge of reckless driving. If it gets plead out to a lesser charge it's after tons of investment that leave the officer feeling like he ran a marathon when he could have just driven to the finish line. They ignore the offense and get a cab, turn around and go a different direction away from the DUI, or suddenly get busy when the citizen calls in a complaint of an impaired driver on their cell to 911.

The easist answer is that you establish PC for the DUI (poor driving, odor of alcohol on breath, slurred speech, fumbled dexterity, HGN) [which is then enough to arrest if they sit down and refuse anything else you ask] then you pull out a PBT (portable breath test machine for those not familiar) and have them blow. No walking the line, touching nose etc. If they are over BAM off to jail. The limit should be absolute, not "well, yea my client was over the limit, but lok at his walk, he wasn't so bad, now you all know you were there once too". If they blow under the limit THEN you go to show impairment (which can be proven down to a .05 BrAC in Florida).

Speed is absolute, if you are over then you are over,.. I believe the DUI should be the same. It's no secret what the limit is, or that DUI is a BIG problem, just get a DD or drink at home and you are all set.

Originally Posted by Shadow

That may not be the case.
A medically impaired driver, a distracted driver and a fatigued driver, may all exhibit some or all of the clues related to DUI.
Hopefully, the results of a SFST will remove any question.

But they (the examples above) are all evaluated and released within a few minutes of realizing that you have no crime (ie no PC). No intent, no impairment as related to DUI laws - no crime to be tired and swerve - at most a careless ticket (infraction - no crime) if the officer felt it was that bad.

The exception is the medically impaired driver. Someone who is suffering from diabetic attack and low blood sugar - No crime (seen it plenty of times). Someone who took their prescription Oxy or Xanax and got on the road after the label on the bottle clearly said don't operate machinery or drive - IMPAIRED/crime. The DUI does not saw that you are exempt if the medicine is prescribed to you (Thank God with all these illegal pill mills in FL dispensing "Legal" prescription pills by the thousands in only a 5 minute visit). Impaired by a CHEMICAL or SUBSTANCE is the key along with INTENT. The LEO are not going to jam a needle in the arm of a tired, distracted, or diabetic driver to gain evidence to "creativly write" anything. If it exists it exists. If not then it doesnt.

The proposal only makes it impossible to refuse whan a CRIME of DUI is occuring (and the arrest would occur anyway). I have seen DUI's that refuse to open the window, refuse to stand, refuse to do the FST evals, but they still go to jail. It is limited evidence, but PC and evidence none the less.

Originally Posted by Shadow

My only concern in this matter is for "justice" and thre preservation of our constitutional rights

If the system as it is now is ok with you then this addition should not be a problem.. The steps are still the same with the simple exception that the arrested suspect can not refuse to relinquish the evidence (breath or blood test results). I think it's fabulous that the officers would no longer be called liars, embelishers, or creative writers in court when the evidence is on the lab test results in black and white. I hope to see this law expanded beyond the DUI checkpoints out to the everyday streets for any DUI case that is investigated and charged.




.

[Shadow]

Originally Posted by Tampa Tuning

...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.

Except for the fact that in the case of a felony, there are provisions written into the statute allowing such invasive measures.
In the case of an injury or fatality crash, a "search warrant" is not required.

There's also a huge difference between true "criminal" cases and "traffic" related criminal cases. Even down to rules of evidence and how depositions are handled.
In a true criminal case, the defense has the right to discovery, and to depose witnesses.
In traffic court, you first have to gain the permission of the court beofre a witness can be deposed.
How screwed up is that?

And unlike a building, a structure, which may hold the fruits of a crime, forcing one to be physically subjected to an invasive technique, still concerns me, especially when the statutes do not address it and there's no provision.
It's more the "it's easier to get forgiveness than permission" attitude.

The "search warrant" issue may hold some validity, but it fights with the individuals right against self incrimination.
In such a case, I'll choose to err on the side of caution to protect the constitutions rights, than to give away ANY rights in the search for "justice."

Otherwise, in the end you may find yourself with neither!

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.

I truly belive the wording was intentional, allowing administrative sanctions while maintaining a citizens right against self incrimination.

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

But you can't, and that's the problem.

In reviewing the material presented here, I find one (1) aspect of the procedure that I could possibly live with, but only if the procedure were followed to the "T":
Your example:

4):...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.

And we don't know what procedures are actually in effect, but withing the scope of the above, it would have to go this way for me to be relatively comfortable with it:

1) Observation.
2) Evaluation.
3) Determination that enough PC exists for an arrest.
4) Arrest.
5) Warrant and execution of said warrant by a licensed professional!

Since this is a traffic case, everything should be based upon on scene evaluation, just as is presently the case.
If you refuse to submit, you're cited with the separate criminal traffic violation (a ticket) and another charge (again traffic) is added.
The officers determination to arrest is based upon thier observations and training.
To "think" a person may have been drinking or drugging, is insufficient for me unless there's other evidence to support that thought such as:
smell of alcohol,
slurred speech,
bloodshot eyes, etc etc etc.

Many of the "symptoms" of DUI can also be attributed to other medical issues.