Posted on 12/08/2005 12:01:42 PM PST by JTN
NOBLESVILLE, Ind. (AP) - A Hamilton County sheriff's deputy faces a lawsuit for using a Taser on a woman who refused to put down her cell phone after she was stopped on suspicion of drunken driving.
Jennifer Marshall says she was trying to phone her lawyer when Deputy Greg Lockhart pressed the stun gun to her arm as another deputy held her.
Police contend Marshall refused to drop the cell phone after Lockhart warned her she would have to go to jail if she did not submit to a blood test.
Hamilton County Sheriff Doug Carter says Lockhart followed department policy and the lawsuit is without merit.
A video camera in the police car recorded the arrest outside a convenience store in Fishers.
"What is relavant is that the jury heard the whole story and convicted her on all counts."
No it is not relevant. The the roadside cops did have this information, nor were they judges, nor after she passed the roadside tests have probable cause.
You cannot mix after the fact information with what the cops knew at the time or had reason to believe at the time of the incident.
"His announcing "taser time" sounds bad, but it could simply mena that he was giving her fair warning that she needed to quit resisting arrest or he would be required to use force. "
What was she under arrest for if she passed both roadside tests?
"It said she cooperated with the physical sobriety tests. It does not say that she passed them. "
If she failed those test there would be no need for the blood tests. And she was on tape.
Forceful Blood Draws by Cops: Constitutional?This is from March, so I don't know the current state-by-state status.Some time ago I commented on the increasingly rough tactics used by police to incapacitate a nonconsenting DUI suspect while a nurse or blood technician draws a blood sample. More recently, I discussed the approach now being used in Utah: doing away with the doctor, nurse or medical technician and simply letting the officer stick a needle into the suspect himself out on the highway. (It takes little imagination to envision the scene: the struggling suspect thrown across the dirty hood of his car, his hands cuffed behind his back, the officer with a baton in one hand and a hypodermic needle in the other....)
I've received a number of inquiries from attorneys concerning that post, advising me that their own states are now planning to emulate Utah's new cost-effective approach and asking for any ideas on how to challenge it.
If it was a weapon, she could have used it before you could make that determination and act on it. The only thing that saved her here was probably that the other officer grabbed her and was able to restrict her motion until the first officer could remove the object from her control.
Yep--I saw the video and those cops should not be doing police work. Disgraceful...
Alcohol affects different people differently. A BAC level in one person is not equivalent to the same BAC in another.
The liver processes (breaks down) alcohol at the rate of roughly 1 'drink' per hour. The lungs exhale roughly 5% of the alcohol you ingest, and the kidneys eliminate roughly the same amount through urine. Unless the officers were giving her beer on the way to the station, it's extremely unlikely her BAC would even be maintained over any significant period of time.
Rising Blood Alcohol Levels in DUI CasesEmphasis added.It is illegal to have a blood-alcohol concentration (BAC) of .08% or greater while driving a vehicle. It is not illegal to have a BAC of .08% or greater while blowing into a breathalyzer in a police station.
In other words, just because a breath test shows a level of, say, .09%, it does not mean that the BAC when the suspect was driving an hour earlier was .09%
. So what was the breath alcohol level when driving? Well, well never know: There is no evidence of the BAC at the time of actual driving. However, we can be fairly sure that it wasnt .09%, since the body is constantly either absorbing or eliminating alcohol and the BAC is therefore constantly rising or falling. If it was falling, then we can expect the BAC when driving was higher -- .10% or more. But if it was rising.....
Lets take a typical example. The subject -- lets call her "Janet" -- finishes dinner by throwing down "one for the road", a 12-ounce can of beer containing .05% alcohol. She is stopped by an officer soon after leaving the restaurant, alcohol is smelled on her breath and she is given field sobriety tests. She does marginally well but, to be sure, the officer takes her into the police station for breath testing. About 45 minutes after drinking the alcohol, Janet breathes into the breathalyzer. The result: .09%. She is booked and his drivers license confiscated.
It will take, on average, about one hour for the alcohol to be absorbed and reach peak levels of concentration in the blood, thereafter to be eliminated from the body. This is only an average; it can vary from 15 minutes to 2 hours; some invidividuals can reach peak concentration ten times faster than others. Dubowski, ""Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects", Journal on Studies of Alcohol, Supp. 10 (July 1985). This makes trying to estimate earlier BAC levels no better than a rough guess, and scientists have uniformly condemned the practice. See, for example, "Breath Alcohol Analysis: Uses, Methods and Some Forensic Problems", 21 Journal of Forensic Sciences 9.
Applying averages to Janet, though, we can expect the last drink to have had little if any effect on her blood-alcohol concentration while she was driving. By the time she is being tested at the station 45 minutes later, however, she is reaching peak concentration. In other words, Janets BAC has been rising. At about 120 pounds, we can estimate (read "guess") that the can of beer has increased her BAC by about .031%.
Translation: the breathalyzer reading of .09% at the station indicates a BAC while driving of only .06%. She is not guilty. But the "evidence" will convict her.
Just to make things worse....As I indicated, attempts to guess BACs when driving earlier than when tested have been condemned by scientists. This makes things tough for prosecutors. Solution? As I discussed in an earlier post, "Whatever Happened to the Presumption of Innocence?", most states today have passed laws -- contrary to scientific truth -- which presume that the BAC at the time of being tested is the same as at the time of driving! In other words, unless the defendant can prove that his BAC was different than when tested, the jury will be instructed that they must find that it is the same. In effect, the defendant is presumed guilty. And since there is no evidence of the BAC when driving, there is no way for the defendant to rebut the presumption.
These laws do, however, make getting convictions much easier.
He didn't force her to give blood. She was given the choice of submitting to a chemical test or going to jail. That's not force; it's an option.
Some option. If a thug with a gun tells you to give him your wallet or he'll blow your brains out, he's not stealing; he's giving you an option.
I think it's relevant. Even though you were crowing about her passing her sobriety tests, her blood alcohol was over the limit.
What do you mean without probable cause? She was convicted and that would be hard to do if the evidence was thrown out.
Are you suggesting that anything an officer does to a suspect is fine as long as that person is later convicted?
Even though you were crowing about her passing her sobriety tests, her blood alcohol was over the limit.
Keep reading through the thread, especially #74. I hate having to deal with that point though, since I think it distracts from the real issue here which is the police officers' actions. Guilty or not, it was wrong to tase someone that they had under control.
Our courts have not been friendly to Constitutional rights when it comes to DUI cases.
Anyway, how would you answer my question?
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