Posted on 10/18/2017 9:20:53 AM PDT by JP1201
In a new ruling, the Supreme Court of Georgia clarified the rights drivers suspected of DUI have when it comes to interaction with law enforcement officers and the implied consent law.
The court made it clear that the state's constitution does not give law enforcement officers the ability to compel drivers suspected of driving under the influence to take a breath test by blowing into a breathalyzer.
It brings to question whether or not a defendant's refusal of a breath test can be submitted as evidence in their trial. As it stands, prosecutors can submit a defendants' refusal of the test. This new ruling changes that.
In a summary of the ruling, the high court wrote "the state constitution’s protection against compelled self-incrimination applies not only to testimony but also to acts that generate incriminating evidence."
In a unanimous decision, the court overturned previous decisions which held that drivers do not have rights under the constitution to refuse a breath test requested by law enforcement officers.
(Excerpt) Read more at 13wmaz.com ...
That is the obvious question and back when journalism meant something, if the reporter didn't touch on that question, the editor would kick it back.
There may be legal or financial reasons why the town wants to control the streets in a private development. It gives them the authority to set design standards and maintain easements for public utilities, for example.
It just dawned on me that the suspension is a lot more coercive than anything that could be written on a card. I expect to see a challenge to the suspension based upon the logic of the new decision.
Not saying I am in favor of this or not, just that it follows.
For that matter, if the driver IS impaired, how can they give meaningful consent?
How would you quantify a “threat of harm” in a statute?
If someone who never drinks has three beers, they will be drunk, because they don’t know how to handle alcohol. Take someone who drinks everyday, their body metabolizes alcohol differently and they know instinctively what it will do to their system. The person who never drinks is a danger on the road, the person who drinks everyday, is not that mush of a danger.
If someone who never drinks has three beers, they will be drunk, because they don’t know how to handle alcohol. Take someone who drinks everyday, their body metabolizes alcohol differently and they know instinctively what it will do to their system. The person who never drinks is a danger on the road, the person who drinks everyday, is not that much of a danger.
Does a game warden have the right to search your vehicle or enter your home and search your freezer for game without your consent or a warrant. If so, which is more important, the motoring public or the wildlife.
It’s been that way for many years in MA. You can refuse but you lose your license automatically for 120 days. And are still charged with DUI.
Think “shoot through a crowd of children” - no actual harm done, but he11 yes we’re gonna put you in a cage. May be difficult to legally quantify, but we’d have to.
Now scale that notion down to “driving in oncoming traffic lane”, “failure to stop at a stop sign/light”, etc.
It would seem that even something as simple as “red means stop, green means go” requires a government intervention that would violate a so-called “right to drive.” What if I want to drive on the LEFT side of the road?
Add in erratic driving (actual bad driving, not made-up excuses like “touching the white line” once) with DUI as an aggravating factor, and I’m with you.
However, you can’t say it has to be caused by the DUI, because someone who is simply a bad driver could easily dispute the causality, and if the law uses the term, the court would logically be bound to include causality in its interpretation.
That would likely be fine, so long as nobody else was on the road. As soon as someone else, following social norms of traffic flow, has to deal with “WTF are you doing?!?” you’re rapidly entering the “putting others in jeopardy” realm.
Contemplate these things in terms of “reasonable limits” we put on other enumerated rights.
- you can’t publish libel
- you can’t incite riots
- you can’t shoot in crowds
- you can’t scream inanities thru a bullhorn at 2AM
- you can’t wander thru a crowd holding grenade without a pin
- nukes are just out of the question save for extreme circumstances
Consider too how often police knowingly _don’t_ enforce driving laws.
- 10MPH over the limit is a normal cruising speed (but 11 can get a $500 fine...grrrr...)
- turn signaling is rarely enforced
- “rolling stops” are commonly ignored
etc
I think we can establish a “right to drive” and still not have dangerous anarchy ensue. We enjoy other rights that can be dangerously abused but largely aren’t, including some mundane regulations just to guide order.
“If a DUI is a criminal offense in Georgia, then anyone who was convicted on the basis of a sobriety test conducted without a warrant should have their convictions overturned.”
There seems to be a bit more nuance to the court decision than that. The article indicates the appellant’s conviction was upheld, despite the court’s concerns about the misleading way in which the police officer described the legal status of the breathalyzer test. I am not a lawyer, but I don’t interpret the decision as striking down the “implied consent” to a field sobriety test. In any case, so I am told by friends in law enforcement, the typical evidence in a DUI case in Georgia involves probable cause for a traffic stop (e.g., erratic driving), the smell of alcohol or marijuana in the vehicle, failure to pass a field sobriety test, and a BAC of 0.08 or greater. (I think, but am not sure, that the police have to get a warrant for a blood draw.) The police don’t rely on just one of these. If you are arrested for DUI, you are booked into the jail, where you stay until you post bond. Some years ago, first offenders were allowed to plead “no contest,” receive a slap on the wrist (probation, community service, and a small fine), and have the arrest expunged from the record. That’s no longer true.
Good one Laz
I know better
Then you are no where near even .08
You are confused about BAC
so the crux is that the police can not force a citizen to facilitate the CREATION of evidence. Police may only collect it as it sits.
the making a defendant do a collected forced exhale into the machine was the issue. It created evidence. It was not a normal exhale.
Check here
https://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html
Scroll down to the BAC chart
blood draws take time and allows for the body to metabolize.
Then you are no where near even .08
But boy, have times changed. When I sold commercial real estate in downtown seattle, sometimes we’d go to this mexican restaurant after work on Eastlake avenue near the south end of lake union and down tequila shots like they were complimentary mints. We’d then pour ourselves into our cars and drive home.
Not one of us ever ended up in an accident nor got a DUI. This was around 1981. Sensibilities were way different back then. I can’t imagine doing such a thing today.
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