Wait, so this is why the officers on Cops and the likes always make people walk on lines and shit? Because they actually can't do a breath test first?
They do that in order to establish probable cause for the test.
The implied consent laws do not permit you to refuse the test once the officer has determined that probable cause exists.
This quote from an Indiana court decision may help illuminate what probable cause is:
A law enforcement officer has probable cause to offer a chemical test where the officer has knowledge of facts and circumstances that would lead a reasonably prudent person to believe that the crime of operating a vehicle while intoxicated has been committed. Gibson v. State, 518 N.E.2d 1132, 1136 (Ind. Ct. App. 1988), trans. denied. The evidence shows that Dalton had crashed his car, then fled the scene. He smelled of alcohol and had bloodshot eyes, and slurred speech. Dalton only fumbled with some items in his pocket and dropped them when asked for identification. He failed three field sobriety tests and a portable breath test. Dalton's clothing was soiled and in disarray, and he had an abusive attitude toward Hainje. The fact that Dalton smelled strongly of alcohol, alone, provided sufficient probable cause to at least offer Dalton a chemical test. See State v. Johnson, 503 N.E.2d 431, 432 (Ind. Ct. App. 1987), trans. denied. Based on these facts, we find there was sufficient probable cause for Hainje to offer Dalton a test to determine whether he was intoxicated.
Hainje administered a breathalyzer test because Dalton did not want to go to the hospital for a chemical test. Even though Dalton's ACE was only .06%, this did not eliminate probable cause that he was operating his vehicle under the influence of a controlled substance. While the .06% test result indicated that Dalton was not intoxicated with alcohol, Hainje, a trained drug recognition expert, believed that Dalton might be under the influence of some other drug. Hainje did not believe the .06% ACE result was consistent with his observations of Dalton's condition and behavior. Because Dalton was abusive and refused to cooperate, Hainje was unable to carry out a drug recognition examination. Hainje then offered Dalton the additional chemical test to which Dalton refused.
Probable cause requires only the probability of criminal activity had occurred. Jellison v. State, 656 N.E.2d 532, 534 (Ind. Ct. App. 1995). The facts set out above that gave Hainje probable cause to believe that Dalton was driving while intoxicated remain significant even after the breathalyzer test. Even though Dalton was not intoxicated on alcohol, there was still other circumstantial evidence to warrant a reasonably prudent person to believe that Dalton was operating his vehicle while under the influence of some type of a controlled substance.
Dalton argues that because he tested negative on the vertical gaze nystagmus test, the possibility of drug use was eliminated. As Hainje testified, however, a result from this test only does not completely eliminate the presence of all types of drugs. Probable cause is determined on the basis of the totality of circumstances. Sebastian v. State, 726 N.E.2d 827, 830 (Ind. Ct. App. 2000), trans. denied. The totality of the circumstances herein, even after the breathalyzer results, provided sufficient evidence that Dalton may have operated his vehicle while under the influence of some type of a controlled substance; thus, because Hainje had probable cause to offer the second test, Dalton's refusal to submit to that test constituted a violation of the Implied Consent law.
Dalton gives three other arguments to justify his refusal of the offered chemical test. First, Dalton contends that the test is invalid because Hainje did not allow him to contact his attorney before deciding whether or not to submit to the test. However, a person who drives on Indiana's roads has no right to consult with an attorney prior to deciding whether or not to submit to a chemical test administered under the Implied Consent law, and the lack of such consultation does not affect the person's refusal of the offered test. Zakhi v. State, 560 N.E.2d 683, 686 (Ind. Ct. App. 1990).
Second, Dalton argues that Hainje misled him as to the number of tests he was required to take. Dalton testified that Hainje promised him he would be free to leave if the breath test turned out favorably. Hainje testified that he made no such promise to Dalton. It is not for the appellate court to judge the credibility of the witnesses, and this court considers only the evidence favorable to the trial court's judgment. Timmons, 723 N.E.2d at 922. Dalton is essentially asking us to reassess the credibility of the witnesses. This we will not do.
Finally, Dalton asserts that the offered blood or urine test was an illusory request because Hainje could not lawfully administer these tests. It is true that the offer of a chemical test would have been invalid if Hainje had proposed that he administer the test. See Steward v. State, 638 N.E.2d 1292 (Ind. Ct. App. 1994). However, Hainje offered to transport Dalton to a hospital where appropriate personnel would have conducted the test. Thus, the offer was valid. The trial court did not err in denying Dalton's petition for reinstatement of his driver's license.
From what I gathered looking into this, the portable breathalzyer machine tests have been proven inaccurate when testing 'non-average' persons to serve as direct evidence, so some states only allow them to be used to
establish probable cause.
In other words, if a cop pulls you over for suspicion of DUI and you refuse the portable breath test, he can still force you to take a chemical test
if other circumstances give him the probable cause to do so.
Generally if he's pulled you over, it's because you're operating the vehicle so erratically, a 'reasonable officer' would conclude that you were DUI and just be justified in mandating the implied consent chemical test.
And you can't pass a law that makes this legal because of the holy constitution,
Sure we can, it's called a
constitutional amendment.
Perhaps you don't understand, but the constitution is our
basic law, and as such, other laws must conform with it.
Maybe we haven't amended it because our police have no problem busting drunk drivers without the Stasi-like powers of random search a lot of foreign police forces have.
If the 4th amendment was a substantial bar to agressive DUI enforcement, groups like Mothers Aagainst Drunk Driving would be in the forefront of demanding it be changed.
Instead all you hear from them on that subject is the sound of chirping crickets.
