Stopped by Police with alcohol on our breath- Now what?


Well, thanks to politics and the bandwagon folks, along with all their propaganda, our chance of continuing on our journey is unlikely whether we are intoxicated or not. The problem for me is that I sometimes like to go out for Oysters. Milk with my Oysters just doesn’t sound like a good combination, but a Blue Moon with them does. Note: This does not apply to anyone under 21. If you are under 21, it is illegal to drive with any alcohol in your system.
They (who are they?) come into our lives through television and billboards with statements that don’t reflect our law. “Drink, Drive, Go to Jail”; “DWI, you can’t afford it”; “Buzzed Driving is Drunk Driving”; “Drink, Drive, You Lose”. They attempt to pressure all involved in the process even though the legislature is clear about drinking and then driving. Besides, whether we are buzzed on Starbucks, alcohol, or our prescribed medication, we can easily still have the normal use of our faculties and often times, better than normal. I’m thinking about a game of pool right now. If you are 21 or older, it is not against the law to drink and then drive as long as we aren’t intoxicated. Intoxication is “not having” the normal use of faculties by reason of alcohol, drugs, or a combination, and it is Not– “Not having” the normal use of faculties because we are tired, sick, weak, or uncoordinated even with some alcohol in our system. The field sobriety tests are designed for people to fail them. They are done on the side of the road, usually at night, where we don’t have a good visual frame of reference. Our vision is most important element in keeping our balance. When they are not performed perfectly, the State says intoxication is to blame. If the legislature wanted the law to be no driving with any alcohol in our system, they would make it the law.
What would I do if stopped on the way home after my Blue Moon and Oysters?
Answer- It depends. I’ve seen a lot over the last 22 years. The machine the state uses is not accurate to determine a quantitative amount of alcohol in our blood, regardless of what their witnesses will say. It is the alcohol in our blood that can affect us, not our breath. No breath test can be accurate, especially since we all have different blood/breath ratios. The machine is only good to show whether alcohol is present in the breath. The Horizontal Gaze Nystagmus test (HGN) is a joke and any perceived nystagmus (jerkiness of the eyeball) is never video recorded for a judge or jury to see. Any misstep on the walk and turn and 1 leg stand will be attributed to alcohol and not my age, hour of the day, bad knee, health, or nervousness. The officer will not investigate any of those issues. I know that if I refuse to give a breath sample, many officers will get a warrant to take blood from my body against my will.
The reality is that anytime we drink and drive, we are taking the risk of being arrested. (“They” like it that way) So, it is best not to drink and drive. But, do we want them deciding what the law is, or should be, by using the fear of arrest to deter the innocent drinking and driving? Not me. And so, when I drink and drive, I will not be intoxicated. I will not drive in fear. If I am stopped, I know that the officer will smell the odor of the alcohol beverage on my breath. I know the pressures he/she is working under and I know the officer is not on my side. I will give him only the information required of me. We are required to give them our name, date of birth and our residence address. We are not required to give it audibly. I will not necessarily answer questions about where I’ve been or where I’m going or how much I’ve had to drink. It is none of their business. Instead, other than identify myself, I may invoke my right to consult with a lawyer before answering any questions, sign anything, or do anything, even when he tells me that I don’t have that right. I will be respectful and courteous even when invoking my rights. And, in response to the statement from the officer that he smells alcohol on my breath, I might say, “It should, I had a beer with dinner”. I will not agree to any breath testing, even if it means I will have my driver’s license suspended. Why do I use the word “never”? I suppose, I could agree to take a breath test after I give a sample of my blood. They wouldn’t want to have both for comparison though. That is probably why the officer will never tell you that you have an independent right to a blood test within (2) hours after you provide a specimen of your breath. Even if you knew about that part of the law, good luck getting the independent blood test if you are locked up. In addition, don’t let the intended fear of losing your driver’s license scare you. We can always apply for an Occupational Drivers’ License. Although the officer will want to conduct some “Field Sobriety Tests” on me, I will not allow the officer to conduct any tests on me and that includes the HGN where he would watch the eye ball move as I follow his pen from side to side. By the way, they will usually phrase their request in a way to make you think, it is no big deal and it is just a formality. i.e. “I’m just going to do a few tests to make sure you are o.k. to drive”. They are trained to phrase things in ways to get what they want, and to me, it is being dishonest. There is a part of me that may make a wager with the officer. “I will provide a blood specimen, provided that if the test shows that I’m under a .08, you agree to pay me $1,000.00 and if the result is .08 or more, I’ll pay you $3,000.00. But, the blood tests have their limitations also, so I may refuse everything. If, for any reason, I had any difficulty in conversing with the officer, I would identify myself with my driver’s license and invoke my right to remain silent.
In the end, it is the State who will have the burden of proof of Beyond a Reasonable Doubt before they can brand us with a DWI. Hopefully, a jury or good judge can endure the unjust pressures and require the State to meet their burden and make the right call. Beyond a Reasonable Doubt should be more than just a phrase used to give Americans the appearance of fairness.

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