A question about breathalyzers

[HobbyGuy]

I am curious about the ability of LEOs to administer a breathalyzer test. What is legally required for an officer to perform this test? Can LE set up a road block and test everyone coming through? Is there a probable cause requirement so that a citizen's 4th Amendment rights are not violated?

Thanks for your comments.

Robert

[Denny347]

Waaaay too much to post here. I will post the link to IN v. Gerschoffer. It is the INSC case that clearly defined how LEO's can conduct a legal checkpoint, it is more narrow than what the USSC requires for a legal check point.
Indiana v. Gerschoffer
I need to have PC to administer a certified chemical test. I only need reasonable suspicion to conduct a DUI investigation (ie the Standardized Field Sobriety Tests). The SFST's along with driving behavior, and other officer observations=PC to read Indiana Implied Consent to the driver then a certified chemical test. If you are talking about one of the little PBT's (portable breath tests) that we have in the field, those are NOT certified chemical tests. PBT's are just to insure we are dealing with alcohol and not something else. They are accurate but not certified by the Indiana Department of Toxicology unlike the Certified Instruments are that are located at various rollcall sites. A PBT reading is NOT admissible in court. Also, a PBT should NEVER be administered before administering SFST's, always after. Knowing what a person's BAC before administering the filed tests could skew those results. Example. You blow a .15 on my PBT then we start the field tests. Well, I know you are over the limit already so I might tend to grade the test more harshly for a failure. Not on purpose, but planting the seed in my mind could case a decent attorney to get the case thrown out in court.

[redneckmedic]

I have a thought and a question.

Thought: If you don't drink and drive none of the answers here should matter unless you are just curious.

Question: Is it true that if you deny the Breathalyzer test you will automatically be arrested and taken to holding or for blood tests? If it is true (as I believe it is) why is this not a violation of rights? Unless there is more than just the officers opinion to bring you in.

[Denny347]

Originally Posted by redneckmedic

I have a thought and a question.

Thought: If you don't drink and drive none of the answers here should matter unless you are just curious.

Question: Is it true that if you deny the Breathalyzer test you will automatically be arrested and taken to holding or for blood tests? If it is true (as I believe it is) why is this not a violation of rights? Unless there is more than just the officers opinion to bring you in.

Yes and no and sort of...clear enough If you are offered a breath test then I have read you Indiana Implied Consent. "I have probable cause to believe you have operated a motor vehicle while intoxicated. I must offer you the opportunity to submit to a certified chemical test and inform you that your refusal to submit to that chemical test will result in your driving privileges being suspended for one year. I you have a prior DUI conviction your drivers license will be suspended for two years. Will you now take a certified chemical test?" It's a BMV thing. You refuse, no DL for a year or 2. In Indiana we have 2 DUI charges. We have
-Operating While Intoxicated 9-30-5-2 A misdemeanor
This charge covers a driver who has showed signs of intoxication and operating a vehicle as such that is endangering other drivers (usually a problem to show if they are parked). Has NOTHING to do with a persons BAC.

The second law it is referred to as the "per se" law. This covers the BAC. It is a separate law in itself.
-Operating at or above .08 but less than .15 C misdemeanor
or
-Operating at or above .15 A misdemeanor

So, I read you Indiana implied consent and you refuse. Well, I just told you I have PC so I have enough for an arrest. I place you under arrest for ONLY the OWI charge and not the per se. If I want, I complete a warrant request (have have done this numerous times) to draw your blood and when it is tested the prosecutor will add the per se charge later, which charge will depend on the results of the tests. What is needed for a warrant? PC What is the first line in Indiana Implied Consent? I have probable cause... So, its all fair and above board...its all legal. I've done about 150 or so DUI's in the last 5 years so I've gotten pretty good at them.

[serpicostraight]

Originally Posted by redneckmedic

I have a thought and a question.

Thought: If you don't drink and drive none of the answers here should matter unless you are just curious.

Question: Is it true that if you deny the Breathalyzer test you will automatically be arrested and taken to holding or for blood tests? If it is true (as I believe it is) why is this not a violation of rights? Unless there is more than just the officers opinion to bring you in.

newsflash if you drink and dont drive you can still get arrested fur owi. if you even think about taking a sip out of a alchoholic drink you better brush up on the laws. there are more technicalities than you can shake a stick at that you can be arrested for. in indiana you can be arrested for pi even if your not driniking if the officer says you smelled like alchohol and had bloodshot glassy eyes away to county you go. of course making the charges stick is a whole nother ballgame but you will be arrested, spend time in jail ,have to make bond, etc not much fun.

[redneckmedic]

Originally Posted by Denny347

"I have probable cause to believe you have operated a motor vehicle while intoxicated. I must offer you the opportunity to submit to a certified chemical test and inform you that your refusal to submit to that chemical test will result in your driving privileges being suspended for one year.

This the part that is confusing to me and I suppose it is similar to the ID thing that we do (with yal's help). Is it an absolute if you refuse you will lose your license for a year, or is that flexible depending on other results? Seems to me this is a good way to screw with someone that has it coming. Or maybe find other criminal behaviors as a foot in the door. I suppose I don't know all the inner workings but a right to refuse automatically = no license? But then again the Probable Cause must be in order too I guess.

[redneckmedic]

Originally Posted by serpicostraight

newsflash if you drink and dont drive you can still get arrested fur owi.

I know there is a difference in :

DWI/OWI: Driving/Operating while intoxicated
DUI: Driving under the Influence
PI: Public Intoxication

Most people think that they have to be Drunk to get into trouble with the law, as I understand it you just have to be under the influence. And even here I am not 100% sure this is accurate.

All the more reason I just drink my Bud at home by the fire pit!

[Kirk Freeman]

Hobby, you may want to read King v. State, 877 N.E.2d 518 (Ind. Ct. App. 2007) and Sublett v. State, 815 N.E.2d 1031 (Ind. Ct. App. 2004) as well as the Indiana Supreme Court decision in Gerschoffer.

Are you inquiring about breath tests in general or specifically as to roadblocks?

[Denny347]

Originally Posted by redneckmedic

This the part that is confusing to me and I suppose it is similar to the ID thing that we do (with yal's help). Is it an absolute if you refuse you will lose your license for a year, or is that flexible depending on other results? Seems to me this is a good way to screw with someone that has it coming. Or maybe find other criminal behaviors as a foot in the door. I suppose I don't know all the inner workings but a right to refuse automatically = no license? But then again the Probable Cause must be in order too I guess.

You have a right to refuse. I always clarify that to them, you have a choice and are free to use it. I don't care one way or another. When you get a DL in Indiana you agree to the Implied Consent law from the BMV.
Not flexible. However a good lawyer can argue that you did not refuse and thus negate the suspension in certain cases. I tell them that they are going to jail with or without the test. However, you want to go to jail with a valid license or a suspension for a year and I'll still get the BAC results?

[redneckmedic]

Originally Posted by Denny347

You have a right to refuse. I always clarify that to them, you have a choice and are free to use it. I don't care one way or another. When you get a DL in Indiana you agree to the Implied Consent law from the BMV.
Not flexible. However a good lawyer can argue that you did not refuse and thus negate the suspension in certain cases. I tell them that they are going to jail with or without the test. However, you want to go to jail with a valid license or a suspension for a year and I'll still get the BAC results?

Ah now that wraps up everything I was wondering! Not just a tool to aid in inquiring. But a way of gathering Diagnostic Evidence for prosecution. Ha well done! I suppose I don't drink and drive enough, and that is why I struggle with the procedures. Thanks for the Clarification!