Not true in this situation. The charge was a violation of H&S 11550 which refers you to drugs listed in sec. 11054 and they are a narcotic, not alcohol that dissapate quickly like you state. These drugs take at least 4 days to get out of your blood stream. The charge was not impairment, it was being under the influence. If it happened to be below the accepted standard they can still use this evidence to support their case which is under the influence. I was NOT driving a vehicle, I was sitting on a couch in a house. There was no danger to the public at large I was not driving a 2 ton vehicle that can kill people, I was not with anyone else but me AT THIS time. As to you being arrested for taking prescription, you surely know that this is an exception to H&S 11550 and in fact Officers are trained to ask that question first. In fact the Officer asked me that question first. Your only addressing about impairment, but 11550 has two crimes: "11550(a) No person shall use, or be under the influence....." Since the DA has not filed yet, we will have to see, but I'll bet you that it is "use" and it is much tougher to prove than "under the influence" especially since I was not demonstrating (by driving strange, or if not in vehicle, walking down the street funny or giving the public something to worry about by shouting at them or something. I was just sitting on a couch in a house by myself)CdwJava said:Not necessarily true. It depends on the nature of the drug. And, you are not going to be legally under the influence for the full 72 hours that it takes the typical CNS stimulant to work through the system.
Plus, the concentration may well fall below the accepted standard set to establish impairment in as little as 8 hours (depending on quantity and substance used). Thus, there IS an exigency.
Not true. At least not in CA. If that were the case, I could be arrested for taking prescription meds.
You cannot take a rape kit from a suspect, you take a rape kit from the victim, who in fact wants to give it to you. Now when they try to get the blood or DNA from the suspect to match it up to this rape kit evidence, (sperm, fluid, blood, hair left behind, etc...) guess what, THEY HAVE TO GET A WARRANT, or if by chance there is a cigg butt or some other thing that is in plain view or incident to arrest or a previous DNA on file then yes they don't need a warrant to pick that up. But if they want to forceably take that DNA/Blood from the suspect and don't get a warrant from a judge then it is fruit of the tainted vine and the courts are quite clear on this.CdwJava said:Read more ... the courts have consistently ruled that this is not testimony. We take rape kits from suspects without warrants and can take blood, breath and urine without warrants as well. For DNA you'd have a point - it won't degrade or change with time. But intoxicants and biological evidence (such as with sex crimes) CAN degrade.
Everything you said here supports what I said...."That the judicary not the executive branch of government makes and determinations on what is or is not probable cause. An officer may file what you said "declaration of probable cause" but let me ask you this. Where does this declaration get filed? Well of coarse it gets filed to the judge or the DA who submits it to the judge. And why do they do this to see if the Judge/Judicary will make a finding of probable. Officers CANNOT make this determination.CdwJava said:Actually, we act based on what we believe to be probable cause and then a judge decides later if that was the case. When we make an arrest, a declaration of probable cause accompanies the arrest and booking for a judge's review later.
Here you go again, we just agreed that only the judicary can determine PC. An Officer can have reasonable cause, reasonable suspicion, suspicion, but cannot make a finding of probable. Otherwise why do they have a probable cause hearing? Because when someone is arrested WITHOUT warrant the Constitution requires it. Even if the DA files an "Information" this is still just the DA saying I have information and belief that probable cause exists to bind/hold this person over for trial. When the DA files this Information, guess what, the defendant has the right to....what? A PROBABLE CAUSE HEARING. This is so the other branch of government who is entrusted with our rights (the legislator makes the laws, the exective enforces the laws and the JUDICARY decides if both those two branchs did their job) the judicary branch, can make sure we don't have tyranny happening again as in 1776. Which I do believe we have today.CdwJava said:He may arrest on probable cause. If the officer believes that probable cause exists to make an arrest, he may certainly do so. I don't have to call the judge in the middle of the night and ask if I may handcuff someone.
I can tell that you are sincere in your beliefs and are probably a very good Officer, (My father was a police officer, my brother was a sheriff and my sister is an officer) but you have to know that THE ONLY WAY TO GET INTO THE COURT PROCESS (Criminal) is to be arrested and booked. You also know that signing a ticket (criminal) is only the Officer letting you go OR'd as long as you promise to appear. The ONLY way you can get into court on a criminal charge is by getting arrested/booked and it is THE FIRST STEP in the court process. The attorney comes now, right now as soon as that Officer stops me or detains me the process has started. I cannot just magically appear in front of a judge one day and say "your honor I would like to plead not guilty to the charge....oh yeah what is the charge?" Common on now, this is the very first step in the criminal process.CdwJava said:Your arrest and your booking process are not part of the court process. The attorney comes later. All your request does is tell the officers that they may not interview you or use anything they solicit from you in violation of Miranda against you.
Close but no cigar.....It is the exact situation I had. Your right they had not been booked and still haven't. So are you saying since "I WAS" booked I was not entitled to a lawyer, but since the Ramsey's have NEVER been booked they are? This make no sense at all. You say that they were just asked to come in and make a statement. Guess what? The Officer asked me to come on over here and make a statement. Same facts no different.CdwJava said:They were not arrested. They did not ask for an attorney at booking. They were asked to come in and make a statement. Your situation is way different.
I was interviewed/asked questions after I envolked my right to remain silent. The Officer asked me many more questions....I was smart enough to know that 'I DO HAVE A RIGHT TO REMAIN SILENT' and he was met with just that.....silence. I never said another word to that Officer, except that every time he asked me something/interviewed me...I repeatly asked for my attorney, which is my right. If I had been driving a dangerous weapon (car) then yes I would not have had the right to an attorney before or during the requested test...YOU ARE RIGHT. But if we take your position, ANY OFFICER ANY TIME CAN STOP ANY PERSON ON A STREET, IN THEIR HOUSE ANYWHERE and say Hey come over here I want to give you a test.....This is still America isn't it?CdwJava said:Had you been interviewed after requesting an attorney, you'd have a point.
Defendant in error
Paul