It's really pretty simple....
..He was drunk, under the influence, whatever you want to call it to be politically correct!
Why else indeed, whats to hide?
Sorry, I don't and won't feel sorry for someone in this situation,
we all know the rules going into the game.
Don't drink and drive![/b]

 

Or don't drive and drink!

 

I know of someone who was convicted of DWI in my state for refusing to take the breath test. This individual was not driving nor was his vehicle operable. The keys were in the ignition and he was charged and convicted. He didn't serve any jail time, but his license was suspended for a year and he now has a conviction for DWI on his record. Some states make a distinction between DUI and DWI. It doesn't matter whether the individual is a CDL holder or has a regular license, the law treats both the same. According to what I was told, the law has been challenged and taken all the way to the Supreme Court (probably the state supreme court) and the law has been upheld because they have been able to slide the privilege phrase into the language.

I suppose that I am basically a black and white person. Either something is right or wrong. I don't think people should be drinking and driving, but this law is wrong. It violates our personal rights. You don't even need to be drinking to be convicted, only refuse the test. It is my understanding that Tennessee was the first state to take this stance and other states have now followed with similar legislation. I don't know if they were first but they have one of the most strict DUI/DWI laws in the country.

 

I win more shots at the bar proving people wrong about laws for CDL holders and relevance to being in their 4 wheeler than George W stutters in a single speech 8)

 

No offense take, golfhobo. The information that I conveyed came from an attorney who works with these types of offenses. Granted, it has been several years ago, but I assume the laws haven't changed that much. There is a chance that if you take the test that you might not be convicted of DUI, but if you refuse to take the test, whether you were driving or not, you WILL be convicted of DWI. He told me that in my state a refusal is an automatic conviction. I have heard similar stories from those in other states. Basically what they try to do is get you to plead guilty to the DWI, pay your fines and not spend the 48 hours in jail. According to this lawyer, the only difference is in whether you spend 48 hours in jail. Either way, you pay the fine, lose your license for a year and have a DWI conviction for a first offense. In this instance I know that the guy who was involved wasn't driving his vehicle. He did refuse to take the test. I think these laws are crazy. As I stated earlier, it is a very slippery slope when you allow the government to take away your rights to self incrimination, regardless of your personal views on whether people should be driving and drinking. It just bothers me that this offense could be treated so much differently than other types of offenses. We should not allow the government to convict anyone for anything based upon their refusal to provide evidence against themselves. They may not even be drinking. It could be a matter of not wanting to take the test because of personal reasons. We should not assume that someone is guilty because they refuse to take a BAC test. According to our constitution people are innocent until PROVEN guilty. The burden of proof is on the state. This puts the burden of proof on the individual to prove their innocence. It is wrong.

 

In most states a dui is split into 2 parts, criminal=DUI & civil=license. Both are seperate from one another and their outcomes do not effect eachother. This situation he refused=in most states license is automatically suspended for a certain amount of time REGARDLESS OF A CDL OR NOT. In AZ if you refuse the cop writes a search warrant, straps you down to a chair, sticks a needle in your arm and draws your blood. Now you're stuck with a suspension b/c of refusal and your BAC can be used in court. Just b/c you refuse doesn't mean the DUI portion is going to get thrown out. The cop can prove to the jury that you were impaired my your smell, speech poor driving, etc. Refusing just makes you look like a :dung: bag.

 

I recall some years ago people who were in that situation were told to not take a breath test. There was little the police could do to force an individual to take it. They could still arrest and charge you for DUI. It just might have been more difficult to get a conviction. In order to get a conviction the officer would usually need to have witnessed your behavior, such as weaving, etc., Of course, back then we recognized that we had a constitution and people actually had rights. I don't think we had any more alcohol related accidents back then than today. I think this has more to do with the money collected by the state than safety. If they were really interested in reducing or solving the drinking and driving problem then they would offer more alternative sentencing designed to get those who have drinking problems to stop.

Part of the problem I have with these laws is that you can be convicted because you MAY commit a crime. You MIGHT drive a car if the keys are in the ignition. If you drive a car that will do 100 mph, then you should be charged with speeding or reckless driving because you MIGHT speed. If you own a gun perhaps you should be charged with assault with a deadly weapon. After all, you MIGHT shoot someone. We should not charge and convict people because they MIGHT commit a crime. We should only charge and convict people who actually break the law. That makes an assumption that laws are based upon common sense. I had no idea that someone could be convicted for not giving up their rights. :evil:

 

ToxicWaste said:

You're JOKING, right?? That's not what it says on the site I referenced above. In fact, according to it, you don't even lose your license for 1 year upon a first conviction of a DUI! And as for refusal to test, it only says (as most states do,)

 

cops don't just write a search warrent! a search warrant must be filed with a court and and the officer must show probable cause for a search. the judge if he finds probable cause then signs the warrant and the officer may serve it. also no cop is going to be administering a blood test. if and when he does have a search warrant he will take the person to a hospital and have them draw the blood. the only reason we have implied consent is so their is a penalty for refusing to take a breath or blood test.

Refusing to take a test can be used as evidence in a trial but evidence doesn't mean guilt. a decent lawyer will argue that the person refused to take the test because they don't believe in it etc!

The cop cant prove anything! he can testify that he smelled what he smelled and what he saw but that is not Proof! it is still up to a jury of your piers to look at all the "evidence" and find you not guilty or guilty beyond a reasonable doubt! thats not somewhat guilty or probably guilty! just refusing to take a test does not PROVE you guilty beyond a reasonable doubt!

the problem is the jury is made up of people that think cops can just write search warrants and strap people to chairs.

the bottom line is when you get a drivers license you accept the fact that if you refuse a test you will lose your PRIVILEGE to drive. life has rules! You either follow them or you don't! You have the choice, but you also have the consequences!

 

KayCee: I had NOT read the Q&A section when I first posted. I HAVE now.... and my analysis STANDS.

The paragraph you quoted is very poorly written. It doesn't even make it clear until the end of the third sentence that it is referring to refusing a BREATH TEST. At any rate, it NEVER says you can't refuse the TESTS (even tho' it is 'required' of you.) And the "separate crime" referred to is simply the crime of more or less "revoking" your implied consent, the penalty for which is additional years of suspension and/or fines, etc.

I'm fully aware that refusal can be used as evidence in court. But, it can NEVER be used as uncontestable PROOF that you were under the influence.

I did not click on EVERY state to check for these "additional crimes," but the ones I did check basically just referred to the additional suspension/punishments for refusing the test. This was known all along. If anyone wants me to check a particular state, I will be glad to, and will say so if I find I was wrong.

BTW, we are agreed on what you said in your last paragraph. That was not the subject of MY part of the discussion.