was arrested for DUI out of state, BAC was 0.019

[dave33]

who said they would be "drunk"? The law criminalizes driving under the influence of whatever; alcohol OR some other drug. That means if it is determine the driver is impaired, regardless of the BAC or test results for some other drug they are driving illegally.



Oh please provide some support for your claim.

I just mean I believe the officer or prosecutor or both will not claim that .02 is the only factor.


I am sure anyone with a computer can find examples of a positive test result with no alcohol. I know people with a handheld machine and have used it personally. This machine has not been calibrated but it was actually more common th get some reading opposed to no reading at all.

 

[betachains]

I think the BAC calculators underestimate actual levels in real-life subjects. If you are some short, flabby middle aged guy weighing 150 lbs, you may well be over the per se limit after a couple of drinks.

We all understand that you *may* be convicted of a DUI with little alcohol and no other drugs on board, but will you? The answer, at least in CA, is no.

For the OP, any conviction or charge will be based on the driver taking other drugs, not on the basis of a low BAC.

I talked to a few of my lawyer acquaintances, and none of them has ever seen a charge of DUI for 0.02, or slightly higher, absent other drug charges. I suppose that if the OP took the breath test instead of blood sampling, the DA can argue that he was strung out on drugs.

Why aren't DUI stops and FST's routinely videoed anyways? Horizontal nystagmus? Staggering? Let the computer decide.

 

[HighwayMan]

Why aren't DUI stops and FST's routinely videoed anyways? Horizontal nystagmus? Staggering? Let the computer decide.

Let the computer decide what?

Do you really think mobile video systems can show the nystagmus that the officer sees? Do you even know what nystagmus is?

 

[betachains]

Let the computer decide what?

Do you really think mobile video systems can show the nystagmus that the officer sees? Do you even know what nystagmus is?

Yeah, yeah, I know you guys claim your FST's are "objective" because of your extensive training and all that. I bet it is trivial to come up with a phone app to detect nystagmus.

 

[HighwayMan]

You're completely ignoring my question - let the computer decide what?

The SFST's are not black and white or pass fail. It doesn't seem like you know much about how the tests are administered and evaluated.

 

[betachains]

You're completely ignoring my question - let the computer decide what?

The SFST's are not black and white or pass fail. It doesn't seem like you know much about how the tests are administered and evaluated.

I am saying that DUI stops should be closely videotaped (not just the dashboard camera), and FST interpretations should not be left to the intervening policeman. The nystagmus test, for example, can be videoed and analyzed by a 3rd party or a computer.

Police seem very fond of FST's. As discussed here last year, it is not to any driver's advantage to submit to them unless he/she is completely sober/ takes no meds/has no conceivable neurological impairment/ and is in a hurry. Otherwise just take the chemical test.

I suppose there is an ego boost for police in knowing how to administer and evaluate FST's. Why don't you tell us about the intricacies of FST's? It sounds like you have taken the weekend course.

I think currently refusal of FST's can be presented at trial as evidence of guilt. It is a matter of time before this is challenged before the Supreme Court.

 

[HighwayMan]

I think currently refusal of FST's can be presented at trial as evidence of guilt. It is a matter of time before this is challenged before the Supreme Court.

That would probably vary by state.

 

[betachains]

That would probably vary by state.

Sure, which is why it should be decided at the federal level.

I think that the FST's will be history in a few years.

If someone is completely sober, or impaired, then the FST's will confirm it. If the tests are iffy, then he should be taken for a chemical rest. How does this add to the police's decision?

It is scientifically nonsense, and it is amazing that it is now a standard for LE throughout the country.

In comparison, no one in the medical field - ER docs, ICU docs, nurses, no one - uses FST's, in particular the "horizontal nystagmus" test so beloved by the police.

 

[CdwJava]

It may be possible, but absent other intoxicants, in my neck of the woods (CA) I just don't see an adult being charged - never mind convicted - for DUI with a BAC of 0.02, or 0.05. They may be charged with non-alcohol related crummy driving, but that's another story.

If you swallowed as handful of Vicodin and had to crawl to your car and played bumper cars with the parked cars on the street, you could be charged with DUI even with a BAC of .00.

Granted if the DUI was for ALCOHOL only, then a .02 is not going to be convincing. But, many people engage in polydrug use and mix intoxicants such as alcohol with their drugs. It could be the OP was arrested based upon those observations. Or, as is more likely, the OP mis-wrote the results and they should be .19 and .20.

 

[CdwJava]

Sure, which is why it should be decided at the federal level.

I think that the FST's will be history in a few years.

If someone is completely sober, or impaired, then the FST's will confirm it. If the tests are iffy, then he should be taken for a chemical rest. How does this add to the police's decision?

It is scientifically nonsense, and it is amazing that it is now a standard for LE throughout the country.

In comparison, no one in the medical field - ER docs, ICU docs, nurses, no one - uses FST's, in particular the "horizontal nystagmus" test so beloved by the police.

They are hardly "scientific nonsense" much as the pro-drinking or some in the DUI defense lobby might claim. There is ample science to support the claims and the SFSTs. And of course medical staff doesn't need to use them because they have cooperative patients and labs - the police don't have such a controlled environment and expensive resources in the field on a stop and I doubt that people will choose to submit to such invasive (and expensive) procedures on a traffic stop. They have been proclaiming the SFSTs "dead" for decades. They are not going anywhere anytime soon unless the standard of the law changes to permit reliable roadside chemical tests that drivers MUST submit to ... though, the level of science is not yet to the point where we can detect all possible intoxicants in a single test so the observations of impairment will continue to be important well into the future.

It has been and will continue to be a valid mode of defense to challenge the training and experience of the officer conducting the tests as it is for other areas of officer testimony.

And, as for refusals, whether this can be used as consciousness of guilt varies by state. However, simply presenting this can certainly let a jury come to their own conclusion ... and most people are likely to believe that a refusal to take the chemical test demonstrates a belief that the defendant believed he or she might actually be impaired. But, the jury can decide on its own.

 

[betachains]

If you swallowed as handful of Vicodin and had to crawl to your car and played bumper cars with the parked cars on the street, you could be charged with DUI even with a BAC of .00.

Granted if the DUI was for ALCOHOL only, then a .02 is not going to be convincing. But, many people engage in polydrug use and mix intoxicants such as alcohol with their drugs. It could be the OP was arrested based upon those observations. Or, as is more likely, the OP mis-wrote the results and they should be .19 and .20.

I already said that assuming "no other drugs" involved. Of course, someone taking Vicodin may be intoxicated whatever their BAC. I never said otherwise.

It could be the OP got arrested for being raving mad on the highway. Or not. It could be that the OP with a BAC of 0.02 was also high on meth; plus coke; also high-grade heroin. What if the OP had an active cellphone?

It is all possible.

Or maybe the policeman overstepped.

About FST's: it is all BS. Scientifically questionable; medically invalid; legally subject to SCOTUS review.

 

[justalayman]

About FST's: it is all BS. Scientifically questionable; medically invalid; legally subject to SCOTUS review.

FST's aren't going away. They are valid if used properly. In some states they are only means to obtain PC to further the investigation. In themselves, they don't mean a lot. They simply allow for an arrest and further mandatory testing. If used in that manner, they aren't likely to ever go away.

 

[betachains]

They are hardly "scientific nonsense" much as the pro-drinking or some in the DUI defense lobby might claim. There is ample science to support the claims and the SFSTs. And of course medical staff doesn't need to use them because they have cooperative patients and labs - the police don't have such a controlled environment and expensive resources in the field on a stop and I doubt that people will choose to submit to such invasive (and expensive) procedures on a traffic stop. They have been proclaiming the SFSTs "dead" for decades. They are not going anywhere anytime soon unless the standard of the law changes to permit reliable roadside chemical tests that drivers MUST submit to ... though, the level of science is not yet to the point where we can detect all possible intoxicants in a single test so the observations of impairment will continue to be important well into the future.

It has been and will continue to be a valid mode of defense to challenge the training and experience of the officer conducting the tests as it is for other areas of officer testimony.

And, as for refusals, whether this can be used as consciousness of guilt varies by state. However, simply presenting this can certainly let a jury come to their own conclusion ... and most people are likely to believe that a refusal to take the chemical test demonstrates a belief that the defendant believed he or she might actually be impaired. But, the jury can decide on its own.

Medical staff don't use FST's (zero cost) because they think the results have no effect on their interventions. I can assure you that scientifically it is nonsensical though it will pass muster with police and the like. I understand that having taking a few courses and being designated your local DUI expect would want any police to go rah-rah-rah, but it is a bit more complicated than that.

Should refusal of FST's even go before a jury? I really think is this Supreme Court material. 5th Amendment?

 

[CdwJava]

About FST's: it is all BS. Scientifically questionable; medically invalid; legally subject to SCOTUS review.

Apparently, courts and scientists disagree with you. And, EVERYTHING is subject to review by SCOTUS if brought to them and accepted for review.

So, do you believe that DUI is a crime? How would YOU evaluate an impaired driver? You got a better way? I'm all ears ... (or eyes, as it were)

 

[CdwJava]

Medical staff don't use FST's (zero cost) because they think the results have no effect on their interventions.

You're correct. Because the hospital staff aren't evaluating the patient for his level of impairment or ability to perform divided attention tasks that are necessary to safely operate a motor vehicle. The mission of the medical personnel would be something else entirely, and the moderately impaired patient will not be a medical issue even if he or she is too impaired to operate a motor vehicle safely.

I can assure you that scientifically it is nonsensical though it will pass muster with police and the like.

Oh, and the researchers that validated the original studies and continue to do so. Yes, there will be contrary research but much of it has poor methodology and has certainly not been sufficient to convince the courts that the SFSTs are insufficient to help determine impairment.

I understand that having taking a few courses and being designated your local DUI expect would want any police to go rah-rah-rah, but it is a bit more complicated than that.

Of course it's more complicated. And, I have gone through quite a bit more than "a few courses," thank you.

Should refusal of FST's even go before a jury? I really think is this Supreme Court material. 5th Amendment?

Why shouldn't all the defendant's actions and statements be presented to the jury just as they would in any other criminal case? Should DUI cases be given SPECIAL protections?

The courts have ruled that statements made in a detention are not covered under Miranda and that statements made during DUI investigations are admissible. Certainly a driver can refuse the FSTs as well as the chemical test. But, refusing the mandated test can result in sanctions such as the loss of a license, and in a few states, hold a criminal penalty as well. And you don't think a jury isn't going to wonder why the guy refused when it comes to light that he did not take a chemical test??