Posted on 01/01/2006 3:23:54 PM PST by digger48
He's cooked. MADD is working on providing him with a new orifice.
please see my reply to Digger.. As a civilian I would imagine a blood test at the time of the failed (for whatever reason) breath test would be good evidence that she was innocent. Remember, she had just had an accident, for some reason the Law wanted her to do the breath test. I suspect that she SMELLED STRONGLY OF ALCOHOL. My real job is practicing medicine in an Emergency Department of a 35,000 visit-per-year hospital er.I see lots of accident vicitms and it is RARE that the PO_lice randomly select little old ladies and make them do breath tests. They usually REEK of alcohol with bright red eyes (that ain't allergies , honey) and most seem to have vocabularies that would do a Marine Drill Instructor proud.In 25 years of practice I have never seen a person do a test that I thought was sober ( I do a lot of testing (blood) when they come in as it does affect my treatment of their injuries, The test results are not given to law enforcement) My suggestion would be that she do the blood alcohol test to prove her innocence, though I bet she was GUILTY and that is why she flunked the test intentionally. If she did not do the blood test, it is her word against the police, as alcohol levels diminish with time unless refreshed...I am not suggesting she HAD to prove her innocence, but would really look good in a law suit for false arrest if she went that way
This is not all that uncommon. Lets just say I have good knowledge of another case where an attempt that was first cited as a refusal was overturned in a DOT hearing.
You do have to blow fairly hard and for several seconds to get a good result.
Uh, this happened in the United States of America.
My 7th-Grade Civics teacher told me this would never be necessary.
Of course, that was 1965.
Exactly, a blood test is also good enough.
It doesn't. That's why attorney's advise you to not submit to any test or to say anything that might incriminate you.
Isn't it supposed to be "innocent until PROVEN guilty"? Not "guilty until you prove you're innocent".
You're still innocent until proven guilty. You only "feel" guilty because they've jerked your license, cursed your name before the Goddess MADD, and in some cities I hear, take your car and sell it before your trial. I think I read about one city that was about ready to start taking houses, the car thing had been so succesful.
Yikes. What the hell has happened to our country? The squeaky wheel gets the grease (groups like MADD) and the Constitution gets the shaft (without even a light lube job!).
I think it's about time for people who care about the Constitution remaining as the Supreme Law of the Land to start making some noise before she just rusts away entirely at the whims of special interest groups like MADD.
"Essentially, DUI defendants are considered guilty until proven innocent, and the normal constitutional protections against self-incrimination don't apply."
You are correct, madam.
Perhaps she did too. However, the cops know that if they can get you to blow really hard and long, it will register higher - for the same BAC.
Maybe, she blew fine, but the cop wanted to get a higher reading.
"The way DUI law are written, they didn't have to. Essentially, DUI defendants are considered guilty until proven innocent, and the normal constitutional protections against self-incrimination don't apply."
That may be true where you live, but in most places you can demand a blood test rather than a breath test.
According to court documents, a Hancock County sheriff's deputy administered field sobriety tests, including a portable breath test, to Meredith Upchurch after a December 2004 traffic accident. The deputy then asked her to go to the jail to take another breath test, and she complied.<<<
She flunked the roadside testing, a portable breath test at the scene(of an accident) and then chose not to blow correctly into the jail's machine (after blowing correctly into the PBT)...wonder what the PBT said? It had to be in the report, why didn't the article state it?
This article was written to inflame people, a cheap shot with clear omissions, nothing more. If the article had reported it (and I suspect it was way over 0.8) this would be an article for MADD on the crazy courts.
DK
Maybe they should have just entubated her in order to capture all her exhalations for further analysis.
So what is your explanation for the ommission of the PBT reading that would directly destroy the "innocent" slant of the story?
How about a short description of the accident? Was she at fault? Did she hit a parked car or even worse run it into a ditch?
All those details were available but never made it to the story?
If the PBT reading was over 0.8, the headline should have read:
DRUNK DRIVER IN ACCIDENT USES Asthma TO Win Court Ruling Over Breath Test
FOOLS SOME, news at eleven.
LOL
DK
PBT test results aren't admissible - yet.
If the PBT reading was over 0.8,
If that were the case, considering that 0.4 is probably a fatal dose, we wouldn't be reading this because it wouldn't have been a story
Urine test do not reveal alcohol intoxication.
0.08
My bad...
PBT test results aren't admissible - yet.<<
Admissible to a news story?
DK
That's right. Since the story was about her medical condition preventing her from providing a "satisfactory" breath sample at a stationary incrimination device, PBT results were irrelevant.
Don't worry, I'm sure this "loophole" will be closed soon.
As a person on this thread already pointed out, very few people, even asthmatics, cannot do the test. Her doc's note confirmed the condition, not the inability to take the test.
But she can always hope that you'll be on the jury ;).
PBT results were part of probable cause...hardly irrelevent.
But you gotta laugh at the law sometimes. My personal favorite was the millionaire who killed a man, cut off the victim's head. Wouldn't tell the cops where the head was, claimed self defense and won.
Post trial jury interviews revealed some of dumbest people on the earth.
But I wound never give up the right to a jury trial.
DK
So who has the best elk jerky?
If there is either people or property damage attributable to the defendant, I would probably always vote to hang 'em high, regardless of whether or not they're guilty of driving around with alcohol on their breath. Otherwise, "not guilty"
So who has the best elk jerky?
Grandma' T's Restaurant - Reserve, NM.
If there is either people or property damage attributable to the defendant, I would probably always vote to hang 'em high, regardless of whether or not they're guilty of driving around with alcohol on their breath. Otherwise, "not guilty"<<
Glad to know where you stand! I prefer dui's with driving irregularities that indicate a hazard to others, but the laws have changed. And in my state the "stationary incrimination device" may be lost because the legislature decided to order judges presume it is correct as a measure of intoxication. Judges hate that, and are rebelling to regain their discretion.
Haven't been to NM since Cimmaron a long time ago. Amazing country.
Thanks for reminding me.
DK
Cimmaron - don't tell me,let me guess......Boy Scout, or NRA Whittington afficionado?
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