ALR hearing, legal reason to deny field sobriety test?

[and1player38]

This was in Dallas, Tx.

I was recently in an automobile accident during which an emergency vehicle was in the far right lane so the car in front of me yielded to the far left lane (the fast lane of the highway) and proceeded to stop immediately just after getting over a hill when she was out of my line of sight.

I tried to avoid the accident by stopping while changing lanes but there wasn't enough time or distance to avoid the accident. Both cars airbags deployed, their car tipped over and mine was completely disabled. I had been leaving a bar which I told the State Trooper, when asked to perform a field sobriety test I just asked for the officer to take me to jail.

This took place in the beginning of December, I have not yet been charged with the DUI but I am now have the court date for my ALR hearing.

For my ALR hearing were there any legal reasons to deny this test? The trooper asked if my back hurt, if I had a concussion, etc which I said no

 

[CdwJava]

You are not legally required to take the field sobriety test. You are, however, required to complete a mandatory chemical test after you have been arrested for DUI. Did you take the mandatory test? If not, expect your license to be yanked no matter the outcome of any criminal proceeding - even if there is none.

 

[TigerD]

For my ALR hearing were there any legal reasons to deny this test? The trooper asked if my back hurt, if I had a concussion, etc which I said no

Yes. Your Fifth Amendment rights.

You are not required to perform like a trained monkey. That said, telling the officer to just take you to jail could be considered an admission of guilt.

You should talk to an attorney. It is important to have your attorney at the license hearing.

DC

 

[and1player38]

I appreciate the assistance you guys, if the mandatory chemical test is the blood they draw after they take you to jail then yes but before this happened I had to sign some paper in the police car that I was refusing their test. He never asked me specifically to take a breathlyzer.

Hopefully I didn't screw myself by telling him just to take me to jail, I of course just meant that I would not be taking a field sobriety test but I can understand how it could be seen as an admission of guilt.

 

[CavemanLawyer]

The mandatory test on any DWI is either to give a breath specimen (intoxilyzer) or to give a blood sample. Unless drugs are suspected, usually an officer will request breath. On any felony DWI or a case where someone reasonably may have sustained serious bodily injury as a result of an alcohol related vehicular crime, the officer may take a mandatory blood sample, but only after you refuse to give consent. If you didn't refuse and instead just consented, then they would not have treated it as a mandatory blood draw situation, but either way they get your blood.

In the ALR hearing they will basically determine whether there was probable cause to request a breath or blood sample and whether you did in fact refuse. If those determinations are made your license will be suspended for up to six months even if you are never charged with a crime.

As others have stated get an attorney asap so they can represent you in the ALR hearing. Even if you have zero chances of saving your driver's license it is still a great opportunity to get the officer on the stand under oath, usually when they are far less prepared than in trial. Many DWI's get dismissed or reduced based on an embarrassing ALR transcript.

 

[betachains]

I have asked this before in another thread, but: is there any reason to submit to field sobriety tests at all? It seems to me that the results can only harm you. If you are sober, then the mandatory blood/breath tests will exonerate you. If you are drunk/impaired, then the police can get a warrant and test you anyways. What is the point in FSTs?

 

[CavemanLawyer]

Well you can't take the chemical test without being arrested first so satisfactory performance on the SFST's could get you on your way and avoid all that. The intoxilyzer gives immediate results but blood does not so who knows how long you could be waiting to prove your innocence.

On the other side of the coin, if you are intoxicated and the State does prosecute you for DWI what do you think the #1 suggested reason by the jury will be for refusing to SFST's? That you have something to hide, and that is a perfectly fair argument for the prosecutor to make to.

With that said my advice is that if you have had nothing to drink or you are positively confident that you are not even the slightest bit impaired, then go ahead and do SFST's. If you even slightly suspect that have any degree of impairment then politely refuse. This of course still depends on the stop to begin with. If it does not appear that they officer has established reasonable suspicion of your intoxication then I would refuse in all instances.

 

[CdwJava]

I have asked this before in another thread, but: is there any reason to submit to field sobriety tests at all? It seems to me that the results can only harm you. If you are sober, then the mandatory blood/breath tests will exonerate you. If you are drunk/impaired, then the police can get a warrant and test you anyways. What is the point in FSTs?

They don't generally need a warrant to compel a blood test from someone they believe is under the influence of drugs or alcohol. By the time the police could get a warrant, the evidence could have metabolized in whole or part, so the courts generally recognize the exigency as an exception to the warrant requirement. While some agency policies may limit or prohibit compelled draws, the law generally allows them.

 

[betachains]

They don't generally need a warrant to compel a blood test from someone they believe is under the influence of drugs or alcohol. By the time the police could get a warrant, the evidence could have metabolized in whole or part, so the courts generally recognize the exigency as an exception to the warrant requirement. While some agency policies may limit or prohibit compelled draws, the law generally allows them.

The Supreme Court just ruled (http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf) that absent urgent contingencies (to be determined case-by case), a warrant is required for a blood draw. In practical terms, it is unlikely that a warrantless blood draw will withstand legal challenge in the future.

In a separate case, SCOTUS is considering that a refusal to answer questions pre-arrest cannot be used as evidence of guilty behavior. I would think that refusals of FSTs should be treated similarly, though I would like to see the specifics addressed directly by the Court. At issue is whether 5th Amendment rights come into effect only after arrest and Miranda warning, or earlier when it becomes obvious that the police is treating you as a "person of interest".

EDIT: The second case is currently being argued, and not ruled on by the Court.

 

[TigerD]

I have asked this before in another thread, but: is there any reason to submit to field sobriety tests at all? It seems to me that the results can only harm you. If you are sober, then the mandatory blood/breath tests will exonerate you. If you are drunk/impaired, then the police can get a warrant and test you anyways. What is the point in FSTs?

The only reason an officer has to ask you to do trained monkey tricks is because he already suspects that you are under the influence. He isn't looking for cause to clear you, he is looking for additional evidence to charge you. I wouldn't do it.

DC

 

[CdwJava]

The Supreme Court just ruled (http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf) that absent urgent contingencies (to be determined case-by case), a warrant is required for a blood draw. In practical terms, it is unlikely that a warrantless blood draw will withstand legal challenge in the future.

As is written in the case, each case will have to be evaluated on a case by case basis which is really how it is right now. I do not know about MO, but in my state it would be extremely unlikely in most counties to possibly obtain a search warrant for a blood draw without going well beyond the accepted three hour window. As such, most objective analyses will likely show that an exigency existed as evidence was dissipating.

As I have not yet received any briefing on this and have no idea what impact the legal eagles at least in my state will have to say, I cannot definitively say whether it will or will not have an impact. But, as the case discusses the reasonableness of obtaining a search warrant, and in most counties out here obtaining one within three hours of the contact is highly unlikely in most typical DUI cases, I'd say that we will scarcely be effected here. I cannot speak for other states who might have on call magistrates at their fingertips.

In a separate case, SCOTUS is considering that a refusal to answer questions pre-arrest cannot be used as evidence of guilty behavior. I would think that refusals of FSTs should be treated similarly, though I would like to see the specifics addressed directly by the Court. At issue is whether 5th Amendment rights come into effect only after arrest and Miranda warning, or earlier when it becomes obvious that the police is treating you as a "person of interest".

EDIT: The second case is currently being argued, and not ruled on by the Court.

Some states already do not permit this to be brought in as evidence of guilt. However, if brought up in testimony, a jury will be free to infer what they wish. It might be difficult to prevent an officer from testifying as to what took place during the stop including testimony as to what the defendant did or did not say when interviewed at the scene.

I am not familiar with this particular deliberation, but could it be that the case has to do with a refusal to talk being used as an element of the probable cause articulated to support an arrest? If that si the case, i can certainly agree that one's refusal to speak should not be included in that deliberation.

 

[CdwJava]

The only reason an officer has to ask you to do trained monkey tricks is because he already suspects that you are under the influence. He isn't looking for cause to clear you, he is looking for additional evidence to charge you. I wouldn't do it.

DC

Not necessarily true.

If someone smells of booze, the officer may be in a quandary. If he lets the driver go without checking, and the driver subsequently gets into a collision, the officer might be held liable in some way (this happened in Torrance some years back). So, to help establish good cause to release the driver, doing some FSTs might be the best option available. In some cases, the odor is not coming from the driver, but from his passengers. We just had this one again the other night. The officer went to the window, smelled the odor of alcohol, and asked the driver to step out. Once outside the car the odor dissipated, he did a couple of quick tests and then released the driver on his way.

So, no, they are NOT always done because an officer suspects the driver is guilty. It is also to help determine if the driver is NOT impaired so that he can be safely left to continue on his or her way.

You can choose not to do it all you want, but then you limit the officer's observations to what he can articulate and this might be sufficient to make an arrest ... or, at the very least, to prolong the detention while he investigates as he can.

As mentioned, if you suspect you have drank too much, then it may very well be in your best interest not to conduct the FSTs. But, if you know you have not been drinking and are not impaired, why not? I would as I don't drink so I have nothing to fear.

 

[betachains]

As is written in the case, each case will have to be evaluated on a case by case basis which is really how it is right now. I do not know about MO, but in my state it would be extremely unlikely in most counties to possibly obtain a search warrant for a blood draw without going well beyond the accepted three hour window. As such, most objective analyses will likely show that an exigency existed as evidence was dissipating.

Writing for the majority, Sotomayer specifically rejected this argument.

Some states already do not permit this to be brought in as evidence of guilt. However, if brought up in testimony, a jury will be free to infer what they wish. It might be difficult to prevent an officer from testifying as to what took place during the stop including testimony as to what the defendant did or did not say when interviewed at the scene.

I am not familiar with this particular deliberation, but could it be that the case has to do with a refusal to talk being used as an element of the probable cause articulated to support an arrest? If that si the case, i can certainly agree that one's refusal to speak should not be included in that deliberation.

No, the perp (Salinas v. Texas) talked freely to the police pre-arrest until asked about the murder weapon, at which point he clammed up and acted anxiously. The silence was used *at trial* as evidence of guilt.

 

[CavemanLawyer]

They don't generally need a warrant to compel a blood test from someone they believe is under the influence of drugs or alcohol. By the time the police could get a warrant, the evidence could have metabolized in whole or part, so the courts generally recognize the exigency as an exception to the warrant requirement. While some agency policies may limit or prohibit compelled draws, the law generally allows them.

This may be true in some or even many states but definitely not in Texas where the original poster is. In Texas you can only draw blood by consent, with a warrant, or through a statutory exception to the blood warrant requirement, (ex: any felony DWI, or any alcohol related vehicular accident resulting in serious bodily injury or death.)

This new SCOTUS ruling very well may result in Texas' mandatory blood draw laws being declared unconstitutional.

 

[CdwJava]

The one problem we will have in complying with this decision is that in CA we cannot - by statute - obtain a search warrant for a misdemeanor blood draw. I heard today that there is already talk in Sacramento of modifying PC 1524 to permit this, and in anticipation of this cities and counties are already seeking procedures to obtain these warrants via telephone ... I am sure judges will LOVE being wakened at 2 and 3 AM by officers in their counties - this will impact the courts big time in larger jurisdictions as judges will have to be readily available at late hours due to the time constraints that exist. As it stands, in many rural counties and in jurisdictions with few officers on, obtaining a search warrant would be logistically impossible within the three hour window thus rendering the test mostly moot.

This is going to be a boon to some chronic DUI drivers. Many of them already drive on suspended licenses, so the consequences of one more suspension will be meaningless to them. Wonderful decision ...