Maybe, if we lived in China.

- NCSU

 

Another interesting note, they all kept saying "why won't you blow, we don't even smell alcohol on your breath"

 

Lets be clear. Your failure to consent to a breathalyser is not an admission of guilt. You have a constitutional right against self incrimination. Its called the 5th amendment.

While reading your post I did not read where you said that they asked you to perform a field sobriety test. Did they? LEOs have a set protocol established to provide evidence that a crime was committed. Suspicion does not equate to probable cause. A set of field sobriety tests are required to provide probable cause to initiate a breathalyser. You see it all the time where a person is obviously impaired but the LEO is still attempting to administer the tests. Failure to perform these tests correctly leads to probable cause.

If the LEO jumped over the field sobriety tests and went straight to the breathalyser, then your constitutional rights have been violated. Namely, unlawful search and seizure.

In order to perform a blood draw, the LEO needed to obtain a warrant to collect that evidence. The LEO needed probable cause to obtain the warrant that a judge signed off on. What was the LEO's probable cause? Your refusing to take the breathalyser even tho you did not take a field sobriety test? If this is the case, the blood drawn as evidence is inadmissible in court.

 

Probable cause for an arrest and or a search warrant can be generated without having any field sobriety tests performed on scene depending on circumstances.

 

wonderful reply Oxlander. I refused the FST. He told me you either take this breathalyzer or we'll take you to the hospital and forcefully withdraw blood from you. That they definitely did. They had no probably cause other than the empty box of beer they could hardly see in the window (they did not see open containers until the Sargent got there and he opened the doors, etc etc).

They also wanted to see registration and insurance and I INSISTED to let me go get them, they replied "Why what are you trying to hide". I of course said nothing but I would like to find them there may be things I would rather the public not see in my glove box. They completely disregarded that and went inside anyway and looked around.

Again, they insisted I did not smell like alcohol or have it on my breath not sure if that can be used. I don't want to come off as too defensive but I would like to display the facts as best I can.

 

You beat me to it.

I read and re-read your story a few times, and failed to see where the LEO's obtained probably cause. Now it could be that probable cause can be established because they found the girl with the outstanding warrant....I'm not sure about how that works.

However, as was mentioned earlier, probable cause to administer a breathalyzer test is usually established only after said field tests have been performed and the suspect has failed them.

Where any of the other passengers visibly "wasted" in any sort (drunk, high, etc)?

 

Nobody was wasted. Nor high. They all took the breathalyzer, I can find out what they blew if that's an issue.

 

Nah. In your case, I don't think it matters what they blew. What was done...was done at that point.

 

Another thing, one of the girls was 20 and she was under the influence. Is that probable cause?

 

When I went through drivers ed several years ago, the police came and talked about DUI's. They said in our state (ND) refusal to blow, when they have probable cause, will result in an automatic suspension of your license of a year regardless what your BAC is determined to be with the blood test. Now it sounds to me like they did have probable cause to give you a breathalizer since they found the open container and the empty box.

I'm sure laws vary from state to state, and this may not be the case in ND any longer, but just wanted to throw that out there.

Anyway, my advice is get a good lawyer. If they offer a plea to a lessor charge, seriously consider it as going to trial may not be a good thing. Good luck.

 

Why did they have anyone but the driver blow? Is it illegal to be a drunk passenger? Only you know if you were really impaired or not, if you were impaired, I hope you get what you deserve, if not, I also hope you get what you deserve.

 

Oh. I was under the impression that the LEO's were trying to get you to blow before the Sergeant got there and discovered the open container(s). I guess I misunderstood that part.

If they found the container(s) first, that would qualify as probable cause as it is in and of itself a violation to begin with.

 

They could hit you with a contributing to the delinquency of a minor charge.

 

Get a lawyer. As others have said, get one quickly. I have heard from people that I know that are lwayers, that this could run you about $10,000 by the time it is done---court costs, legal fees, insurance premiums, etc.

Does your family have a lawyer? Have him refer you to a lawyer that specializes in DUI's. He can be honest with you and tell you what your odds are of beating it as well as what steps are waiting for you.

Tim C.

 

I have a fair feeling that if ANY of us "got what we deserved" all the time, we'd have died many years ago....at best! He specifically asked for no condemnation or judgements from us....let's respect his request and look at this thing objectively.

I suspect that it is indeed illegal for the 20 year old passenger to be impaired.