The one where Tdarcos finds a handheld breathalyzer

by **Casual Observer** » Thu Apr 02, 2020 5:22 pm

All us nerds around here know that's a Star Trek Phaser I. I didn't even have to look it up.

by **AArdvark** » Thu Apr 02, 2020 4:51 pm

The one thing you could do to convince me you are right here would be to produce an image, or even a drawing based on your speculation, of the hand-held breath testing tool that was used to conduct a test on you via proximity to the device.

by **Billy Mays** » Thu Apr 02, 2020 10:33 am

Tdarcos wrote: Thu Apr 02, 2020 4:24 am O Canada! Our home and native land!
True patriot love in all of us command.

With glowing hearts we see thee rise,
The True North, strong and free!

From far and wide,
O Canada, we stand on guard for thee.

God keep our land glorious and free!
O Canada, we stand on guard for thee.

O Canada, we stand on guard for thee.

So you've got 1 case and something a Canadian said once, seems a bit flimsy.

by **Tdarcos** » Thu Apr 02, 2020 4:24 am

Billy Mays wrote: Wed Apr 01, 2020 9:12 pm The reason appellate courts generally don't care

Oh contraire, sir, they do care. As I stated earlier, the Kansas Supreme Court overturned a conviction for DUI because of (although not stated) the "fruit of the poisonous tree" doctrine. This means all evidence collected must be valid and lawful, if any evidence is invalid or unlawful, all further evidence collected based on the suspect evidence is inadmissible.

You might say this is unfair because it allows a potentially guilty person to go free, but it is the only tool we have to correct police misconduct. Prosecutors will almost never charge rogue police officers because then other cops might refuse to cooperate. If courts refuse to allow improperly gathered evidence, or appeals courts overturn convictions because of it, it's a much more effective method of correcting behavior than the "once in a blue moon" (or more like "about once every other Sadie Hawkins Day") prosecutions of police misconduct.

In the Kansas case I cited above, the officer administered the Horizontal Gaze Nystagmus (HGN) test, which Kansas' courts consider is not yet scientifically reliable. Based on this failure - he passed the other two field sobriety tests - the man was arrested and alcohol tests were taken, which determined he was over the limit.

But all this evidence would not have been collected, save for the officer relying on what is considered an unreliable method. Thus he lacked probable cause to arrest or to collect the other evidence.

Note that there was a dissent. One of the judges felt the other evidence such as smell of alcohol was enough for probable cause to arrest.

Billy Mays wrote: Wed Apr 01, 2020 9:12 pmsociety doesn't care, outside of you for whatever reason and CO,

Because we're supposed to be a society based on rule of law, not rule of men. Due process is not mere formality, but it ensures police and prosecutors act responsibly. I can't say it better than the Supreme Court of Canada:

[W]e should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the [law]. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system.

- R. v. Burlingham, [1995] 2 S.C.R. 206.

Billy Mays wrote: Wed Apr 01, 2020 9:12 pmand that is because drunk drivers are lowlife scum that drive around killing people.

And occasionally, themselves.

Billy Mays wrote: Wed Apr 01, 2020 9:12 pmThe test could literally be an officer throwing some chicken bones on the ground and lighting up incense and people still wouldn't care as long as the drunk piece of shit gets dragged out of their vehicle and thrown in the back of a cruiser.

But the appeals courts can and do care. In the Kansas case I cited, did you read the quote from the court? "In Kansas, the HGN test has no more validity than a Ouija board or a Magic 8-Ball."

Do I want to see drunk drivers off the streets? (Sarcastic voice) No, I'd rather they be out there doing what they do, hitting things and killing people. Of course I want such conduct to stop. But not at any cost. Proper collection of relevent evidence using scientifically accurate methods, combined with civil rights and due process, means those convicted were done so properly, and we can have a high degree of confidence they were guilty as charged. Otherwise you get what the Supreme Court of Canada warned us about. Sloppy police work and inadequate legal protections lead to faulty convictions. Hopefully it doesn't happen much, but it does. And sometimes you get prosecutorial misconduct.

Howard Jarvis, the man responsible for Califoenia's Proposition 13, which slashed and froze property taxes, was set up by people he met to be placed where he could be arrested and prosecuted for drunk driving in the middle of the campaign for the proposition's presentation to voters. Even the judge thought it was suspicious. When the case collapsed and Jarvis was acquitted, it made it clear it was an attempt to discredit the movement to cut property taxes.

Proper protections of those accused not only protect those accused of a crime, but they make it less likely the rest of us have to fear unwarranted arrest. Or conviction.

by **Billy Mays** » Wed Apr 01, 2020 9:12 pm

Tdarcos wrote: Wed Apr 01, 2020 2:40 amName any case where a person was arrested where the charge was "refusing a field sobriety test" and an appeals court found it valid.

The charge is DUI.

I can't believe you are still going on about this after I capitulated, which I shouldn't have done and didn't even mean, but I did.

The reason appellate courts generally don't care is the same reason the whole of society doesn't care, outside of you for whatever reason and CO, and that is because drunk drivers are lowlife scum that drive around killing people. The test could literally be an officer throwing some chicken bones on the ground and lighting up incense and people still wouldn't care as long as the drunk piece of shit gets dragged out of their vehicle and thrown in the back of a cruiser.

by **Casual Observer** » Wed Apr 01, 2020 3:09 am

Tdarcos wrote: Wed Apr 01, 2020 2:40 amName any case where a person was arrested where the charge was "refusing a field sobriety test" and an appeals court found it valid. I'll save you the trouble because there isn't any.

What the autistic mind is missing here is that FST is designed to be subjective and it's up to the officer can say anything they want about the results. The number of totally sober people who refuse the test is close to zero so the officer has every reason to just go ahead and arrest for at least "common law DUI'

by **Tdarcos** » Wed Apr 01, 2020 2:40 am

Billy Mays wrote: Mon Mar 30, 2020 9:05 am
Tdarcos wrote: Mon Mar 30, 2020 5:15 amArizona
You get arrested for refusing a FST in Arizona, I just googled it.

Name any case where a person was arrested where the charge was "refusing a field sobriety test" and an appeals court found it valid. I'll save you the trouble because there isn't any.

There are cases where people were convicted for refusing a lawful order, interfering, obstruction, resisting arrest and other cases related to not doing what the police told you to do or failed to stop what you're not supposed to do. But I will bet there is no appellate case upholding a conviction where there was a criminal charge where the act involved refusing to perform an FST.

What the Arizona Supreme Court said was it agreed an FST is a search, however, the Fourth Amendment only prohibits "unreasonable search and seizure." In order to ask for an FST the officer has to have probable cause. But if the officer does have probable cause (slurred speech, smells alcohol, etc.), (s)he is going to arrest you anyway, so there is no reason to take the FST and give them more evidence. The correct thing to say to police any time you interact with them where you did not request their help is, "I don't answer questions, I don't consent to searches, I want a lawyer." Cops hate it when people stand on their rights.

In short, once the officer asks you out of the car and wants you to take an FST, you're pretty much screwed. You're going to jail, pass or fail on the FST.

Billy Mays wrote: Mon Mar 30, 2020 9:05 am The one thing you could do to convince me you are right here would be to produce an image

1. I don't really care what you believe.
2. I have no way to produce pictures of anything, have you forgotten I am a 1-legged invalid confined to a bed?
3. I have already stated, I have to go by what I was told at the time it happened, and since people claim they did not have hand-held, breath alcohol testing devices 20+ years ago, I already conceded that it was entirely possible when Shane told me the officer had a BAC testing device and was holding it near my mouth, that Shane could have been pulling my leg.I did not see the device, so I cannot say either way.
4. I don't know how new they are, because I looked it up and found Amazon has them for around $50.

by **AArdvark** » Tue Mar 31, 2020 2:46 pm

Just don't drink and drive

by **Jizaboz** » Tue Mar 31, 2020 9:33 am

Hm yeah I didn't think of it that way. But both of you make good points. Ideally, all of these tests should be refused. I am completely sober and just tried to say my ABCs backwards. Got to W and got completely stuck. My brain just can't do it.

I've never had to take any of these tests and probably never will so my opinion is probably about as helpful as TDarco's on the matter.

by **Casual Observer** » Tue Mar 31, 2020 1:41 am

Jizaboz wrote: Mon Mar 30, 2020 11:02 pm Everybody just calm the hell down.

Also, yes NEVER submit to a field test UNLESS it's:

1. "Walk the line one foot in front of the other." and you have very good balance (I could do this one easily even at 4 drinks but beyond you shouldn't be in that situation at all in the first place) and both feet for that matter.

2. "Follow my finger with your eyes without moving your head." I've played enough Police Quest games to know this is effective. If you've only had 1-2 drinks this should be easy. If you've had more or you either have eye problems then you will probably get dizzy trying to focus on his finger; which makes it look like you are not in full control of your facilities.

3. "Count down from X" If you can't do this, WTF are you doing on the road?

And JUST NEVER if it's:

1. Say your ABCs backwards. "I can't even attempt to do that sober, officer."

2. Any other question you have to think about for more than 2 seconds.

3. "Walk the line" when you can't even do the same on a curb for fun once in a while for whatever reason.

Having done this last June here's my advice: don't do the field sobriety test (I did) because its off camera and completely subjective and they can say anything about it that they want. Don't consent to the field breath test because it's not entirely accurate and they've already decided to arrest you so it doesn't matter. Do consent to the in office breath test or blood test or otherwise they will get a warrant and do it anyway (they did). Do get a good lawyer who knows the prosecutor.

by **Billy Mays** » Tue Mar 31, 2020 12:58 am

Jizaboz wrote: Mon Mar 30, 2020 11:02 pm1. Say your ABCs backwards. "I can't even attempt to do that sober, officer."

I'm pretty sure with this they are testing lucidity. An intoxicated person will just start rambling off letters where a sober individual can concentrate and think quickly (relatively speaking) to give the correct letter in the sequence? I don't think you are on a timer so much as they are trying to determine if you can mentally crunch the numbers so to say?

by **Jizaboz** » Mon Mar 30, 2020 11:02 pm

Everybody just calm the hell down.

Also, yes NEVER submit to a field test UNLESS it's:

1. "Walk the line one foot in front of the other." and you have very good balance (I could do this one easily even at 4 drinks but beyond you shouldn't be in that situation at all in the first place) and both feet for that matter.

2. "Follow my finger with your eyes without moving your head." I've played enough Police Quest games to know this is effective. If you've only had 1-2 drinks this should be easy. If you've had more or you either have eye problems then you will probably get dizzy trying to focus on his finger; which makes it look like you are not in full control of your facilities.

3. "Count down from X" If you can't do this, WTF are you doing on the road?

And JUST NEVER if it's:

1. Say your ABCs backwards. "I can't even attempt to do that sober, officer."

2. Any other question you have to think about for more than 2 seconds.

3. "Walk the line" when you can't even do the same on a curb for fun once in a while for whatever reason.

by **Ice Cream Jonsey** » Mon Mar 30, 2020 9:33 pm

The Doomsday Clock for posting editing has clicked once to 11:55PM.

by **Billy Mays** » Mon Mar 30, 2020 8:55 pm

Sorry, that was harsh. I was just thinking about your condition and you reading those harsh words and I choked up a bit inside.

You're right, Paul. The FST is a bad test and there are probably situations where your lawyer may advise you to refuse taking it.

by **Billy Mays** » Mon Mar 30, 2020 8:35 pm

^edit: right now.

by **Billy Mays** » Mon Mar 30, 2020 9:05 am

Tdarcos wrote: Mon Mar 30, 2020 5:15 amArizona

You get arrested for refusing a FST in Arizona, I just googled it. I have no doubt the rest of your examples suck as well. You have so few examples and the examples you do have are crap.

The one thing you could do to convince me you are right here would be to produce an image, or even a drawing based on your speculation, of the hand-held breath testing tool that was used to conduct a test on you via proximity to the device. Or create a youtube video regaling the events of the traffic stop.

A youtube video or drawing would really put me in my place right not.

by **Tdarcos** » Mon Mar 30, 2020 5:15 am

Billy Mays wrote: Mon Mar 30, 2020 12:00 am
Tdarcos wrote: Sun Mar 29, 2020 4:49 pmState Supreme Courts are mixed
It's not mixed, it's one state. That makes them overwhelmingly in favor of the FST. You just proved my own point for me. Thank you.

No, I gave you two cases, Kansas and Montana. But you want all of them, fine. Here are the states where the FST has been declared to be a "search" within the meaning of the 4th Amendment (or also under the equivalent provision of that state's constitution) meaning that you not only have a right to refuse to perform it, and that your refusal cannot be used against you.

Arizona: State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 176 (1986);
Colorado: People v. Carlson, 677 P.2d 310, 316–17 (1984)
Connecticut: State v. Lamme, 19 Conn.App. 594, 563 A.2d 1372, 1374 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990);
Florida: State v. Taylor, 648 So.2d 701, 703 (1995);
Hawaii: State v. Wyatt, 67 Haw. 293, 687 P.2d 544, 550–54 (1984);
Idaho: State v. Ferreira, 988 P.2d 700, 705 (1999);
Illinois: People v. Walter, 374 Ill. App.3d 763, 771 (2007);
Indiana: Ackerman v. State, 774 N.E.2d 970, 980 (Ind. App. 2002):
Iowa: State v. Stevens, 394 N.W.2d 388, 390–91 (1986)
Maine: State v. Little, 468 A.2d 615, 617 (1983);
Massachusetts: Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d 314, 316–17 (1998);
Nevada: Dixon v. State, 103 Nev. 272, 737 P.2d 1162, 1163–64 (1987);
New York: People v. Califano, 255 A.D.2d 701, 680 N.Y.S.2d 700, 701 (1998);
Vermont: State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1193–95 (1988);

by **Billy Mays** » Mon Mar 30, 2020 12:00 am

Tdarcos wrote: Sun Mar 29, 2020 4:49 pmState Supreme Courts are mixed

It's not mixed, it's one state. That makes them overwhelmingly in favor of the FST. You just proved my own point for me. Thank you.

by **Tdarcos** » Sun Mar 29, 2020 5:08 pm

I accidentally saved the previous item. I would have finished by saying that, as far as I have been able to detertmine, no state requires you to take an FST.

The question is whether the US Supreme Court would find an FST to be either a "search" or a "seizure" under the 4th Amendment. If it is, you cannot be required to take it, nor can proseutors tell the jury you refused. The issue isn't clear because there is no guidance as to whether or not you have a constitutional right not to take the test, similar to the way you have a constitutional right not to answer a police officer's queestions.

However, any part of the test requiring you to speak is refusable, and prosecutors can't tell the jury if you did. If they are recording it, that part of the video where, for example, you refused to read the alphabet backwards, must be excluded.

by **Tdarcos** » Sun Mar 29, 2020 4:49 pm

Billy Mays wrote: Thu Feb 13, 2020 10:56 am
Tdarcos wrote: Thu Feb 13, 2020 9:07 am
Billy Mays wrote: Wed Feb 12, 2020 11:19 pmWhat part of it specifically?
it was probably an episode of Cops
Could it possibly have been an episode of Hunter?

1. I don't watch Hunter other than having seen brief scenes while channel surfing.
2. Hunter is a filmed program, it does not show dash-cam video of a cop at the side of the road, talking to a woman pulled over at night.

Billy Mays wrote: Wed Feb 12, 2020 11:19 pmI ask because you appear to be basing your entire opinion on something over one incident from a show you're not entirely sure it came from?

I meant it was probably Cops as opposed to one of those other police procedurals that either send a camera crew out to videotape stops and/or use Dash-Cam footage.

Billy Mays wrote: Wed Feb 12, 2020 11:19 pm
Tdarcos wrote: Wed Feb 12, 2020 12:22 pm
Billy Mays wrote: Wed Feb 12, 2020 11:19 pm What do they have to say about the FST?
You are not required to take it, but, if you do, the same rules apply as in the Miranda warning...
Can you cite the Supreme Court case where they say you are not required to take the field sobriety test?

City of Wichita v. Molitor, 341 P.3d 1275 (2015), 301 Kan. 251. The Supreme Court of Kansas overturned the DUI conviction of William J. Molitor because the subsequent evidence collected after his arrest was based on his failing a Field Sobriety Test. The court said that at least one of the tests - horizontal gaze nystagmus (HGN) test - does not have adequate scientific consensus to consider it valid evidence, "And at this point in the state of Kansas, the HGN test has no more credibility than a Ouija Board or a Magic 8 Ball." 341 P.3d 1275,1283.

Billy Mays wrote: Wed Feb 12, 2020 11:19 pmI'll save you a little work here, there is no such case. And don't you think it a little odd that if cops have been targeting tens of millions of completely sober and disabled Americans and throwing them in jail for no reason whatsoever over some crap test that the Supreme Court would at least take a peek at it?

Each year, the U.S. Supreme Court receives about 7,000 petitions for certiorari, and hears about 1% of those petitions.

Billy Mays wrote: Wed Feb 12, 2020 11:19 pm
Tdarcos wrote: Wed Feb 12, 2020 12:22 pmI stand by my original words, the FST will make people who are not impaired fail. It is designed for that purpose.
What part of it specifically?

All of it.

Billy Mays wrote: Wed Feb 12, 2020 11:19 pm
Tdarcos wrote: Wed Feb 12, 2020 12:22 pm upreme Court decisions like Gideon, Escobedo, Miranda, Mapp, and others, put restrictions on police and the methods they could use to collect evidence to secure a conviction and how an accused was treated in a trial.
What do they have to say about the FST?

I don't know if the USSC ever decided a case over the issue. State Supreme Courts are mixed:
* I mentioned Kansas Supreme Court above
* Washington's Supreme Court gave a weird decision, the FST is not a “search” but it does constitute a “seisure” for the purposes of the 4th Amerndment and the State equivalent, and while the test is voluntary, prosecutors can mention a test refusal to the jury. (Prosecutors cannot comment to the jury, nor may any prosecution witness mention if an accused invokes a constitutional right, such as invoking the right to remain silent or asking for a lawyer.)
* The Montana Supreme Court: Hulse v. State of Montana, Dep't of Justice, Motor Vehicle Division, 289 Mont. 1, 19, 961 P.2d 75 (1998): For these reasons, we hold that field sobriety tests are not "merely observations" of a person's physical behavior, but, rather, constitute a search under the Fourth Amendment to the United States Constitution and, independently of the federal constitution, under Article II, Section 11 of the Montana Constitution because an individual's constitutionally protected privacy interests are implicated in both the process of conducting the field sobriety tests and in the information disclosed by the tests.
* Maryland's highest court came to the opposite conclusion, that an FST is not a search for 4th Amendment purposes.

The one where Tdarcos finds a handheld breathalyzer

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