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Offlinec1dh3d
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How to assert damage control during a DWI stop
    #12937987 - 07/22/10 09:14 PM (13 years, 9 months ago)

When an officer asks have you been drinking tonight, what is the correct response that won't implicate yourself? Do you ask to speak to a lawyer, flat out tell them I don't want to anserr that, or just say nothing at all?

Does getting pulled over for a DWI justify reason to search without consent? If they place you under arrest, does that give them reason?

I've heard consequences are worse if you refuse a breathalizer on the scene (that they can confiscate your car as evidence), is there any truth to this?

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Re: How to assert damage control during a DWI stop [Re: c1dh3d] * 1
    #12938295 - 07/22/10 10:15 PM (13 years, 9 months ago)

> Does getting pulled over for a DWI justify reason to search without consent?

No.

> If they place you under arrest, does that give them reason?

Yes.  They will either search incident to the arrest or will do an "inventory" search as your car is impounded.

> I've heard consequences are worse if you refuse a breathalizer on the scene

Yes.  Refuse or fail they're impounding and searching your car.  They don't get to keep it in either case, but you have to pay towing/impound fees.

In my state at least a refusal is slightly worse than a 1st time DUI in terms of punishment.

You need to look up your state's laws.  In some states it makes sense to refuse for your 2nd or 3rd DUI.

In almost all states you need to estimate how much you'll blow.  If you think you'll blow over 0.2 (many state's aggravated DUI level) you should refuse.  If you're completely shitfaced you will probably blow over .2.  If you get an aggravated DUI that's usually a FELONY with mandatory jail time, bigger fine, longer loss of license.  An aggravated is often = 3rd DUI.

> When an officer asks have you been drinking tonight, what is the correct response that won't implicate yourself?

There is no correct response to that.  If you say no and he smells alcohol he'll get a boner for you cause you're lying.  If you say yes that gives them the probable cause (or reasonable suspicion) to haul you down for a breathalyser.

If you know he'll smell alcohol on your breath then admit to drinking.  FYI it doesn't matter much how much you tell him you drank, EVERYBODY says "Two beers officer."

I know a guy with quite a few DUIs.  He told the cop one time that he'd drank about a case of beer, but it was over the entire day.  The cop was so shocked and dumbfounded by his honesty that he let him go.  He was only a couple blocks from home anyways.  I don't recommend this, for obvious reasons.

So I guess if they will smell it, and they are super good at smelling alcohol, say one or two beers.  Or simply tell them you have been advised to never make ANY statement to the police under ANY circumstances.


Taking control...  If the cop has a portable breathalyser you're pretty much fucked or free depending on what you blow.  There's really no way around this, it's rare for them to not make you blow if it's at night or they have ANY inkling that you've drank anything.

Your best bet is not get pulled over.  Don't give them probable cause to stop you and you'll get off if they do.  Cops OFTEN watch bar parking lots and pull people over for no reason.  So ALWAYS walk around and look around very carefully.  Take a walk over by that dark parking lot/alley that has the perfect view of several bars.  They will sit in those spots ALL the time.

Watch out for dirty tricks!  Cops in one town I lived would go to the bar parking lot with a damp rag and wipe off one taillight of each vehicle.  Then all night long they would pull people over who had one bright light.

Major lesson, don't park in bar parking lots.  Park a block away where there is a clean getaway.  It WILL save you a DUI sooner or later.

Taking control...  So you got stopped.  To haul you in for a breathalyser the cops usually need reasonable suspicion that you are over the limit.  It's a pretty low standard of proof.  If you say you drank or do just about anything they will have that.  One tactic is to simply tell them you have nothing to say and ask if you are being detained or are free to go.  Refuse any roadside tests.  At that point they have almost nothing to justify hauling you in.  Once you do ANYTHING they will use this as their reasonable suspicion.

One of their tricks is to make you step out of the vehicle.  When you grab your roof or door to get out... they will write in their report "The defendant had to steady himself by grabbing the door/roof in order to exit the vehicle.  Almost every person does this, but they will make it sound like you were obviously intoxicated.

The tests are also a cheat.  I suggest not doing them, it's very hard to win.  They don't give a shit about doing the test fairly.  If they ask you to count to 30 and you count to 35 just to be extra sure you pass they will say you failed because you "Weren't able to follow directions."  Cops are stupid and they don't grasp the logic that you passed the second you hit 30.

The stand on one foot test and walk the line are not hard to pass, but no matter how well you do they will usually fail you.  I once watched a guy do everything perfect, but they hauled him in anyways.  I asked them why they hauled him off and they said he failed the tests.  I told them I watched the whole thing and he completed them perfectly, they just laughed.

The walk the line test is bullshit also.  Most people walk the line just fine, but the cops make you do some complicated turn at the end and walk back.  You walk the line just fine both ways, but they say you did the turn wrong.

The horizontal nystagmus test is the worst.  That is the follow my finger test.  They're looking for jerky movement of the eyes towards either side.  It doesn't really matter what you do on this one, they'll say you failed and it's his word against yours.  They often shine their light in your eyes to distract you.

There's a few cops out there that honestly want to see how drunk you are with these tests.  But they are few and far between.  Most cops know that if you had even 3 beers you're over the ridiculous .08 limit and almost everyone has at least that many.  They know that you'll fail when you blow even if you can do the tests perfect and are in no way intoxicated and your driving is not impaired.  So they really don't give a shit about the tests.  They just do them so they can lie and say you failed them.

So in general I would say refuse the roadside tests.  Ask if they have the breathalyser with them.  If they do you might as well do the tests, otherwise refuse them.  If they have a portable and are making you do the tests they're basically giving you a chance at getting off.  If they don't have one they're just looking to strengthen their case for hauling you in.


Know your rights, know the law, and know the cop tricks.  With 3 beers being over the limit they don't even pretend to call it "intoxicated" any more.  They know it's a fucking joke and a scam to rape people of their money.  They don't care if it impairs your driving, it's all about money now.  It used to be DWI, now it's DUI.  At least they don't pretend you were actually drunk or dangerous anymore when they steal your money and freedom.

Good luck!  Don't get yanked in the first place is the best advice.  DUIs suck, so be smart.  It's pretty unlikely we'll ever get back to the point of reasonable drinking and driving laws.


-FF

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Offlinec1dh3d
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Re: How to assert damage control during a DWI stop [Re: fastfred]
    #12938830 - 07/22/10 11:58 PM (13 years, 9 months ago)

Why I was actually inquiring is because I watched the videos sticky'd in this thread, and not only did it make me palm my face over every police encounter I've epic failed, but how you can exercise the knowledge towards a DWI stop - I've fortunately never had the pleasure.

I was under the assumption police came equipped with breathalzers in their trunk, and if they didn't they'd be more than happy to radio one who did, so they have a buddy to joke with while your sitting cuffed in the backseat.

That being said, and I'm looking more just for your personal opinion on this, would asking if they had a breathalyzer be more incriminating than helpful? It seems like that would just be a red flag that you are guilty as sin. It seems like just refusing roadside tests anyways would be the best idea, as that would just build a case for a DUI case, if you were to blow under the limit, but 'appeared' to intoxicated to operate a vehicle. I've always assumed a DUI is what they arrest you for when you blow under the limit, but they claim you were still incapable of driving.

Also, is refusing a roadside test reason to arrest you for DUI, even if you blow under the limit? I have heard stories, true I don't know, that people have been arrested for DUI because they proved to be too intoxicated to responsibly operate a motor vehicle because of failing the said tests. It would seem that refusing a field sobriety test would be on par with refusing a breathalyzer.

On a side not FF, if you don't mind me asking, you seem very informed about the entire spectrum of law - is this incorporated into your profession? Just curious, you give some great insight to both the facts and the theories of the law :thumbup:

Edited by c1dh3d (07/23/10 12:03 AM)

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OfflineAlan RockefellerM
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Re: How to assert damage control during a DWI stop [Re: c1dh3d]
    #12944154 - 07/24/10 02:24 AM (13 years, 9 months ago)

Quote:

c1dh3d said:
When an officer asks have you been drinking tonight, what is the correct response that won't implicate yourself?





The correct answer is no.  Make them prove that you are drunk, don't just hand it to them.

Here in CA, if you make any moving violation and had any amount of alcohol, they arrest you for reckless driving.

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Re: How to assert damage control during a DWI stop [Re: Alan Rockefeller]
    #12945881 - 07/24/10 02:24 PM (13 years, 9 months ago)

> would asking if they had a breathalyzer be more incriminating than helpful?

No, it's just a normal question.  If they've asked you to do roadside tests it's more than reasonable to ask if they have a brethalyzer.  Some places every cop has one, other places they only have one at the station.

> Also, is refusing a roadside test reason to arrest you for DUI,

No.  Those roadside tests are bullshit.  It's ridiculous and parades you in front of half the town for quite some time.  It's medical fact that they're not effective at determining your blood alcohol.  And it's legal fact that they're trickery designed to generate evidence against you.

> It would seem that refusing a field sobriety test would be on par with refusing a breathalyzer.

No.  You're legally required to blow, not do bullshit tests in the street.  People refuse the tests all the time.  It's offensive to be asked to do them in the first place.  Also anyone who's done the tests properly and then been told they failed is not going to go through that bullshit again.

Quote:

Alan Rockefeller said:
Quote:

c1dh3d said:
When an officer asks have you been drinking tonight, what is the correct response that won't implicate yourself?




The correct answer is no.  Make them prove that you are drunk, don't just hand it to them.




I'd say it depends on the situation.  If they smell it on you and you lie they aren't going to believe a word you say from then on, and you have a 100% chance of being breathalyzed.

The reason to tell at least a half-truth, even though it implicates you, is to avoid the brethalyzer.  They legally can make you blow, so asserting your rights isn't always the best idea.

It will come up in court if you end up there.  One of the first things they will say is that "the defendant ADMITTED that he had been drinking".  But it really doesn't matter, if you end up in court they're already going to have a brethalyzer test.  At that point it's probably better that you told the truth rather than being shown to be an obvious liar.

When you are going to be found out if you lie it's usually better to tell at least as much of the truth as they will inevitably find out.

When a cop asks if you've been drinking say "Why do you ask officer?"  If they reply that you reek of booze it's probably best to either say nothing or tell them you had a drink.


-FF

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OfflineSeussA
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Re: How to assert damage control during a DWI stop [Re: fastfred]
    #12954151 - 07/26/10 04:52 AM (13 years, 9 months ago)

> Some places every cop has one, other places they only have one at the station.

Where I lived in the US, the city cops all had the portable breathalyzers, but they were not allowed in court as proof of intoxication.  Instead, the cops used them in place of a roadside test to create probable cause for an arrest.  After being arrested, they would use the large (and supposedly calibrated and accurate) breathalyzer at the station for evidence that would be allowed in court.

> When a cop asks if you've been drinking say "Why do you ask officer?"

Personally, I would use the "On advice of my attorney, I must humbly decline to answer any questions that might incriminate me until I have spoken with legal council," but a friend of mine once used- "I've had quite a bit of water tonight.  Unfortunately, some drunk spilled his drink on me and I smell like a damn brewery."

> How to assert damage control during a DWI stop

About the only thing you can do is stall and hope that you sober up before they are able to accurately test you.  The test results are not accurate if you have vomited or burped within twenty minutes of the test.  Assuming you are not on illegal drugs, get as close to the breathalyzer as you can, then request a blood test instead.  Most places will have to take you to a hospital for the blood test, giving your body more time to metabolize the alcohol in your system.  A lot of this depends upon where you live and what their procedures are... my absolute best advice is don't drive while intoxicated and it won't be a problem.  It is much easier (and cheaper) to call a friend or to call a taxi for a ride than to deal with cops, a night in jail, courts, etc.


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Re: How to assert damage control during a DWI stop [Re: Seuss]
    #12954620 - 07/26/10 09:36 AM (13 years, 9 months ago)

> About the only thing you can do is stall and hope that you sober up before they are able to accurately test you.

That can work sometimes.  But often they will try to argue and back-calculate your BAC at the time of driving.

For example, if your BAC is .07 two hours after they stop you they'll certainly argue that it was over .08 at the time you were driving.  Your case is a hell of a stronger than if you blew over, but a lot of the time they'll still get you for something or other.


-FF

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OfflineSeussA
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Re: How to assert damage control during a DWI stop [Re: fastfred]
    #12954842 - 07/26/10 10:32 AM (13 years, 9 months ago)

> That can work sometimes.  But often they will try to argue and back-calculate your BAC at the time of driving.

Bleh... what a pain.  I'll stick with my last bit of advice, "don't drive while intoxicated".  :smile:


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Re: How to assert damage control during a DWI stop [Re: Seuss]
    #12955113 - 07/26/10 11:38 AM (13 years, 9 months ago)

The only times I've been pulled over while drinking were around the college bars in my town and I had bad plates. I had a bag of weed on me, an open container in the back, and two drunk assholes in the car. I was definitely over a .08.. the only thing that saved me was a can of emergency tuna I had stashed in my glove box with the registration. The campus cop thought it was hilarious and let me go with a ticket for expired registration/inspection.

Depending on the state, and if you know you're going to blow dirty, you're (sometimes) better off making them haul you to the station for a blood test (like Seuss said). It can take an hour or more to get a nurse down to take blood - by then, you might sober up enough to pass. It's still a crap shoot, depending on how it plays out.

Some advice I got from a DUI case lawyer includes making sure your friends watch you perform the sobriety test - several people claiming you didn't appear intoxicated can help your case in court. Also, if you do get booked, it's worth it to call a friend while you're in jail so they can hear your voice and testify that you didn't sound drunk. Failing that, you can call your cell and leave yourself a voicemail which can then be used as evidence supporting your sobriety.

Maintenance and deployment of breathalyzer devices can also be called into question, if the local PD cannot provide clean records of the device's maintenance logs.

Of course, if you've gotten to that point, you're already going to be spending a few grand on a decent lawyer. The best thing to do is follow Fred's advice and not get pulled over in the first place.

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InvisiblePrisoner#1
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Re: How to assert damage control during a DWI stop [Re: fastfred]
    #12959646 - 07/27/10 01:02 AM (13 years, 9 months ago)

Quote:

fastfred said:
No.  You're legally required to blow, not do bullshit tests in the street.  People refuse the tests all the time.




if you're legally required then you cannot refuse, it is 'implied consent', when you get your license you agree to the sobriety tests
and the breathalyzer unless there's eminent danger in performing the
sobriety tests, these are at the officers discretion and there is no 
accuracy to these tests as many sober people cannot pass them

Quote:

Quote:

Alan Rockefeller said:
Quote:

c1dh3d said:
When an officer asks have you been drinking tonight, what is the correct response that won't implicate yourself?




The correct answer is no.  Make them prove that you are drunk, don't just hand it to them.




I'd say it depends on the situation.  If they smell it on you and you lie they aren't going to believe a word you say from then on, and you have a 100% chance of being breathalyzed. The reason to tell at least a half-truth, even though it implicates you, is to avoid the brethalyzer.  They legally can make you blow, so asserting your rights isn't always the best idea.





cops normally arent going to believe you whether you lie or not and
whether the cop actually smells it or not they frequently lie to claim
they do. you're telling someone to admit guilt to avoid the 'evidence
gathering' portion of the stop, that works when the cop can use their
keen sense of impairment detection to determine that you have not been
drinking or had drank a small enough quantity that it does not impair
your driving




Quote:

if your BAC is .07 two hours after they stop you they'll certainly argue that it was over .08 at the time you were driving.





they dont need to do anything to figure your BAC. most states can charge you with DUI/DWI with as little as .02 BAC, the cop simply as to be able to articulate that you posed a hazard, if you forgot to turn your lights on, made a turn and ran onto the curb a little, crossing a solid line

what they will do is administer a chemical or blood test to determine
your BAC and often times administer a second in order to gauge whether
you're state of intoxication is increasing or decreasing, sometimes the
use the preliminary test from the roadside to have their baseline,
typically they charge you using the higher BAC reading


Quote:

When a cop asks if you've been drinking say "Why do you ask officer?"  If they reply that you reek of booze it's probably best to either say nothing or tell them you had a drink.





saying nothing or dodging the question works out better than claiming a
single drink especially if you smell of alcohol or anything that could
be used to cover the smell of alcohol "have you been drinking", 'that's
a loaded question officer'

the best advice is 'dont drive after drinking if you believe you may
blow in excess of .02', for some of us that's a little more than a
single drink, for heavy drinkers, they can wake up in the morning and 
blow a .2. My step father blew a .32 and had not been drinking for a few
days but he would down a case of beer or more each day and he would
drive normal at that point, all his DUIs came from consuming liquor
except for the one

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Re: How to assert damage control during a DWI stop [Re: Prisoner#1]
    #12960092 - 07/27/10 04:12 AM (13 years, 9 months ago)

Quote:

if you're legally required then you cannot refuse, it is 'implied consent', when you get your license you agree to the sobriety tests and the breathalyzer




Don't know what state you're in, but I've never heard of one where implied consent includes roadside tests.  Every place I've ever heard of you're only legally required to submit to the breathalyser.  It's quite common to refuse the roadside tests.  Anyone who's done them or seen them done knows they're bullshit.

Refusing the roadside tests is like refusing a search, often they'll just let you go on your way.  If you refuse the test and they don't have a breathalyser with them they have to decide right then to haul you in or not.  They size up if they think you'll blow over the limit and they also have to determine if they have enough evidence to meet the legal standard required to haul you in, whatever that may be in your state.  If you give them absolutely nothing to base their suspicion on they often have to just turn you loose.

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Re: How to assert damage control during a DWI stop [Re: fastfred]
    #12977553 - 07/30/10 04:12 PM (13 years, 9 months ago)

Quote:

fastfred said:
Refusing the roadside tests is like refusing a search, often they'll just let you go on your way.





never been my experience

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