4th Amendment question

[MuDwAyNe]

What is the name of your state (only U.S. law)? Ohio

I was driving my Nissan 300zx that I just had a new exhaust professionally repaired ($267) less than 2 months ago. Yes it is a louder car, a 300cc V-6 with duel exhaust but it is far from as loud other cars, trucks and bikes I hear everyday on the road. I did the speed limit, used all signals and was pulled over for a defective exhaust. He then charged me for drunk driving. I had been drinking earlier in the day but had quit hours before this. He took me to the station where I could barely blow into the Breathalyzer because of my Asthma, I told him I had asthma and I was having trouble with it. I even told him to watch as I exhaled with my lungs sounding like a plastic bag being shook. I failed the test. I have read that Asthma will give false positives if you used your inhaler or if you had breathing problems 30-60 minutes before the test. That is my story but this is my question. Being that I do not have a defective exhaust, did he violate my 4th Amendment by pulling me over for no reason? I am sure the video at the police station will show me having the breathing problems at the time of the test, as long as it doesn't "disappear" I should have a case for that but he still had no right to pull me over in my opinion.

 

[FlyingRon]

Not a prayer. A modified loud exhaust is plenty of reasonable suspicion to make the initial stop. You do not need to have been guilty or even cited for the offense he pulled you over for.
While blowing long enough with Asthma might be difficult, force isn't so much of an issue. Did he get a reading? What was it? Did you get cited for refusing? Did you use your inhaler within 20 minutes (it's not an hour, sorry)?
Most cops use that duration between the time you are stopped and the time you arrive at the breathalyzer to have observed you that you didn't further drink or take any medications.

If you are charged, you're going to need a lawyer to see if anything indicates something that might get you off. Nothing you've said right now indicates anything that's an automatic get out of jail free card.

 

[MrJenkins]

What is the name of your state (only U.S. law)? Ohio

I was driving my Nissan 300zx that I just had a new exhaust professionally repaired ($267) less than 2 months ago. Yes it is a louder car, a 300cc V-6 with duel exhaust but it is far from as loud other cars, trucks and bikes I hear everyday on the road. I did the speed limit, used all signals and was pulled over for a defective exhaust. He then charged me for drunk driving. I had been drinking earlier in the day but had quit hours before this. He took me to the station where I could barely blow into the Breathalyzer because of my Asthma, I told him I had asthma and I was having trouble with it. I even told him to watch as I exhaled with my lungs sounding like a plastic bag being shook. I failed the test. I have read that Asthma will give false positives if you used your inhaler or if you had breathing problems 30-60 minutes before the test. That is my story but this is my question. Being that I do not have a defective exhaust, did he violate my 4th Amendment by pulling me over for no reason? I am sure the video at the police station will show me having the breathing problems at the time of the test, as long as it doesn't "disappear" I should have a case for that but he still had no right to pull me over in my opinion.

why type of inhaler do you use?

 

[Proseguru]

sounds like he had a reason to pull you over ... and the medical problem? Hope you bring your doctor in to testify ... which he won't. You saying you have a medical condition will mean nothing. You saying your inhaler caused a false + means nothing. You'll need experts at trial.

 

[CdwJava]

I have to agree - you don't have much of a defense here. Though, without a chemical test, the state will have to rely on the officers' observations of your SFSTs, driving, and whatever else he can articulate in order to garner a conviction ... or, more likely, a plea.

The asthma claim is done with some great frequency, and unless you were having a serious attack at the time of the test (which would be obvious) or have a very serious respiratory problem, this just ain't gonna fly. You failed to cmplete the test and will likely suffer an administrative susension as a result. And, if your state has also criminalized refusals, you could face criminal charges for ths as well.

 

[justalayman]

4513.22 Mufflers.
(A) Every motor vehicle and motorcycle with an internal combustion engine shall at all times be equipped with a muffler which is in good working order and in constant operation to prevent excessive or unusual noise, and no person shall use a muffler cutout, by-pass, or similar device upon a motor vehicle on a highway. Every motorcycle muffler shall be equipped with baffle plates.

very ambiguous statutes such as this are extremely difficult to defeat. What is excessive? What is unusual? Start hunting case law but you are unlikely to find anything defining those terms in a manner that would make the cops interpretation not valid for the stop.



If you really want to fight this (and have the money to do so), challenge the constitutionality of the statute as being overly vague and as such, violates your due process rights. I think that would be your 5th amendment rights, not your 4th.

 

[xylene]

My asthma never made me drive intoxicated.

You offer solid proof why custom exhausts are for fools.

 

[sandyclaus]

I'm still trying to figure out what this has to do with the 4th Amendment (which relates to search or seizure, which none of OP's issues have anything to do with). Maybe OP is claiming that he HAD a seizure, and that's where the connection was made. (and NO, I'm not serious about that...)

If the exhaust was noticeably louder than the other vehicles in the current traffic, that would have been sufficient grounds to pull OP over on the equipment issue. Just because a "professional" installed it doesn't make it street legal.

 

[justalayman]

I'm still trying to figure out what this has to do with the 4th Amendment (which relates to search or seizure, which none of OP's issues have anything to do with). l.

I'm presuming he wants to argue no reasonable suspicion or PC therefore the stop was not valid and as such, the crime discovered cannot be prosecuted.

 

[racer72]

Yes it is a louder car, a 300cc V-6 with duel exhaust

Right there is his problem. Most motorcycles have bigger engines.

 

[CdwJava]

very ambiguous statutes such as this are extremely difficult to defeat. What is excessive? What is unusual? Start hunting case law but you are unlikely to find anything defining those terms in a manner that would make the cops interpretation not valid for the stop.



If you really want to fight this (and have the money to do so), challenge the constitutionality of the statute as being overly vague and as such, violates your due process rights. I think that would be your 5th amendment rights, not your 4th.

Of course there is THIS section:

27150. (a) Every motor vehicle subject to registration shall at all
times be equipped with an adequate muffler in constant operation and
properly maintained to prevent any excessive or unusual noise, and
no muffler or exhaust system shall be equipped with a cutout, bypass,
or similar device.​

It includes the statement "excessive or unusual noise."

The statutes have been challenged and have been upheld just fine.

Since it appears that the OP has been arrested for DUI, the state has only to prove that the stop was based upon reasonable suspicion that a vehicle code violation occurred. A loud muffler is sufficient to justify the stop.

 

[justalayman]

Of course there is THIS section:

27150. (a) Every motor vehicle subject to registration shall at all
times be equipped with an adequate muffler in constant operation and
properly maintained to prevent any excessive or unusual noise, and
no muffler or exhaust system shall be equipped with a cutout, bypass,
or similar device.​

It includes the statement "excessive or unusual noise."

The statutes have been challenged and have been upheld just fine.

Since it appears that the OP has been arrested for DUI, the state has only to prove that the stop was based upon reasonable suspicion that a vehicle code violation occurred. A loud muffler is sufficient to justify the stop.

that looks like a California code; is it? Although the wording is very similar, we are in Ohio. (and I already posted the Ohio statute)


do you have anything supporting the fact it has been challenged on 5th amend rights? That is exactly the type of statute that is subject to challenge on ambiguity. As I said; excessive or unusual noise is very subjective. One of the requirements to meet constitutional challenge is whether the law is clear enough so the person can reasonably determine whether they are breaking the law. Such terms as "excessive or unusual" don't do that. They allow much discretion on the part of the police with no way for the person to have any real idea, let alone an objective means to determine whether one is in compliance with the law.

Of course this is an academic discussion since very few people challenged with such laws have the ability or true desire to mount a challenge.

and am I the only one that hates what they did with Google Scholar? It is much less refinable in its newest form.

 

[OHRoadwarrior]

I think of the signage on the Cherry Bomb semi trucks. "Cherry Bomb, disturbing the peace since 19XX".

 

[CdwJava]

that looks like a California code; is it? Although the wording is very similar, we are in Ohio. (and I already posted the Ohio statute)

Sorry - I replied to Justalayman's post and it looked like a CA code ... I'm on vacation and operaing an iPad, so I don't have the luxury of a larger screen that allows me to look back in the thread.

The problem you have is that the police do not need absolute certainty to make the detention. Heck, they do not even need "probable cause" to affect the detention! What they need is articulable reasonable suspicion to believe that the muffler had been modified. A loud muffler is generally going to be sufficient to support a detention. Had you been charged with the loud muffler, and you had $20,000 or more sitting about, maybe you could try to make a case out of it. As it is, you are not being charged with the offense, you were only detained because of the officer's (apparently) reasonable belief that a vehicle code violation had occurred and he stopped you to look into the matter further.

Talk with your attorney about your thoughts, but I strongly suspect that where you want to go is a road that has been traveled before and is not going to avail you much more than an empty wallet to try and tread upon it.

 

[HighwayMan]

Though, without a chemical test...

Carl, they have a chemical test. While the OP made a big deal about his asthma making it difficult for him to blow, he did say that he failed the test and wanted to know if it could be blamed on his inhaler.