Until there is a severe modification of the concept of immunity for both police officers and prosecutors when they do this kind of thing, there will be no change. Why would there be? There are simply no negative consequences what-so-ever for anybody that does this to citizens or allows it to happen.

Just to be clear - when the police originally suspected that the citizen was DUI, their suspicions may have been reasonable - which is the requirement for further investigations. I have no issue with their original acts. But when every further step tends to be exculpatory, then their response should be to consider the citizen less and less suspicious - not to double-down.

Fat chance of any change, though. I will guess that the great majority of people that they do this to are poor and brown. A decent lawyer would make this go away in minutes.

llater,

llamas

Ah yes, the "I smelleed marijuna" exception to the Fourth Amendment. It's in that Good and Welfare clause somewhere.

Now THIS you can absolutely blame on (Chief) Art Acevedo. It's his policy. I also have on good authority (APD officers we're friends with) that they've been told to bring in people who blow a .05. As for "other drugs:" blood test results take forever (weeks?) to come in, so in the case of someone who is indigent (like Mr. Davis, I believe), they're screwed. It's bullshit.

This article is indeed very poorly written.

"Davis insists he only had one drink that night and he blew a 0.00 on a voluntary breath test."

I do have questions: Did he tell the police he only had one drink when he was pulled over? I kind of doubt that. But why would he admit to a reporter later that he had only one drink that didn't register on the Breathalyzer?

If he had one drink, could the officers smell alcohol on his breath? Is that why they insisted on detaining him, even after the Breathalyzer and the blood test?

Yeah, it does seem like all police want to do is pick people up off the street and throw them in jail, even when there is not enough solid evidence. They really don't have to worry about whether the cases go to trial.

In fairness to the officers, a 'breathalyzer' reading is not a dispositive answer for DUI.

A reading above (whatever the state limit is for the driver) is presumptive evidence for a DUI charge. But a reading below that limit - including, presumably, a 0.00 - is not presumptively exculpatory - in other words, an officer can still charge you with DUI, even if you blew under the limit, if he thinks that he has enough other evidence to support the charge. The charge is driving while intoxicated/driving under the influence, NOT driving with a BAC above a stated level.

That's why nobody should answer the question 'have you had anything to drink tonight?' You're not required to answer. Don't Lie - just don't answer. If you tell the officer 'well, yes, I had a glass of wine with dinner', you just admitted to drinking alcohol and then driving a car. He has all the reasonable suspicion he needs to investigate further - you told him you'd been drinking! - and your admission can be used against you for a DUI charge even if you blow under your state's limit on the breathalyzer.

llater,

llamas

"But a reading below that limit - including, presumably, a 0.00 - is not presumptively exculpatory - in other words, an officer can still charge you with DUI, even if you blew under the limit, if he thinks that he has enough other evidence to support the charge. "

Is that the legal standard? Because under that standard, the charge is non-refutable; the definition excludes the possibility of any exculpatory evidence. If blowing a zero on the breahalyzer is not exculpatory, than neither is a field sobriety test or a breath check. In fact, neither is your driving; the fact that you are driving normally and complying with traffic laws does not necessarily demonstrate that you are not under the influence. Under this standard, the mere fact that you are driving on a public road constitutes probable cause for a search.

Of course, this standard is one of reversal of the burden of proof: the presumption is that you are under the influence, and you must prove that you are not. However, the definition of the crime, as I said, makes it non-refutable; there is no possible way to prove your innocence. If this is really the legal standard, then the law truly is an ass.

(Side note: I am not saying that llamas supports this position just because he pointed it out. And he is absolutely right in that you should never answer the "have you been drinking?" question. If necessary, explicity invoke your Fifth Amendment rights when asked.)

Arizona and I believe other states have a legal 0.0 BAC level.

"impairment to the slightest degree" meaning you can get a DUI for taking cold medicine and going to work.

http://www.burkhartlawoffice.com/driving-while-impaired-to-the-slightest-degree

"It is unlawful for a person to drive if the person is impaired to the slightest degree by intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances.

The law used to say that the person's ability to drive must be impaired but the jury instructions no longer require that nexus. So the bottom line is that you are guilty of a DUI if if the State can prove beyond a reasonable doubt that you are buzzed by alcohol or drugs.

The State relies on the language "to the slightest degree" to make their case and it is that language that makes the DUI laws in Arizona the toughest in the country. To prove its case the State relies on the statements of the Defendant and Field Sobriety Tests."

The State relies on the language "to the slightest degree" to make their case and it is that language that makes the DUI laws in Arizona the toughest in the country. To prove its case the State relies on the statements of the Defendant and Field Sobriety Tests."

Posted by: jerry at February 28, 2014 1:24 PM

They are hoping to intimidate you into entering into a plea bargain. Dont fall for this. Dont say anything. Make them get a warrant and a blood test, every single time.

Hubby, a criminal defense attorney, advises against admitting to any alcohol usage. The policy locally is to bring everyone in if in doubt. The police department doesn't want to be held liable if the person has had too much to drink, but it hasn't hit the bloodstream yet, or if someone continues to drink and drink and kills an innocent victim. They've weighed the possible harms and feel that it is the lesser of two evils. I don't agree, but there it is.

@ Cousin Dave - yes, that's about the size of it. An officer 'trained' in DUI enforcement can characterize just-about any normal driving behaviour as being 'typical' or 'suggestive' of DUI, and use that as 'reasonable suspicion' for a stop and investigation. And all that's required after that is some more observations - the ever-popular 'bloodshot eyes', 'slurred speech' and of course the 'strong odour of an alcoholic beverage' and we're off to the races. In most places, that's more than enough for an arrest that will hold up at trial. The use of FST's, PBTs and so forth are just a bonus. If they tend to support the idea that the driver is drunk, they get added to the list. But even if you 'pass' the FST (which many stone-cold sober people cannot do) and blow a negative PBT, you may still be arrested, based on the officer's observations.

It can degenerate into a 'heads I win, tails you lose' situation, in which tests that tend to suggest that the driver is drunk are always used to support the charge, whereas the same tests are ignored if they tend to suggest that the driver is not drunk. As it appears has happened here.

llater,

llamas