Driving While Black, Tired, In Shape And Ailing

Arizona man arrested for DUI – with a blood alcohol level of 0.00:

Jessie Thorton, a 61-year-old retiree, was arrested and charged with DUI in Arizona despite having a blood alcohol level of 0.00. The reason the arresting officer gave to Thorton: “I can tell you’re driving drunk by the look in your eyes.”

Thorton, a retired firefighter who, because of his wife’s schedule as an ER nurse, often sleeps during the day, was pulled over at 11 pm in Surprise, Arizona after police officers say they witnessed him crossing the white line in his lane.

“He (the officer) walked up and he said ‘I can tell you’re driving DUI by looking in your eyes,'” Thorton told ABC 15 in Arizona.

Thorton, who had been working out at a nearby LA Fitness, told the officer his eyes were bloodshot because he’d been swimming at the gym’s pool.

One of several lessons for the day follows:

“He (the officer) goes, ‘Well we’re going to do a sobriety test.’ I said, ‘OK, but I got bad knees and a bad hip with surgery in two days.'”

The officer then made Thorton take a sobriety test.

“At one point, one of the officers shined the light in my eye and said, ‘Oh, sorry,’ and asked the other officer if he was doing it right,'” said Thornton.

Talk to your lawyer – or any lawyer – about the advisability of refusing to take the field sobriety test (there are those who say refuse it, period; I’m no lawyer, so don’t take my word for it), but the fact is that “field sobriety tests” are not about determining if you’re sober.  They’re about supporting the officer’s case against you in court.  They are not designed to make you look sober; they are, in fact, not designed to be passed at all.  Go ahead – recite the alphabet backwards right now, assuming you’re sober.

The “war on drunk driving” has slopped across the lane into absurdity.

Read the whole thing.  It gets worse.

9 thoughts on “Driving While Black, Tired, In Shape And Ailing

  1. “They’re about supporting the officer’s case against you in court.”

    That’s not quite right.

    The PD doesn’t bring charges, they gather evidence of guilt for the DA or CA to prosecute. The fact is, everything a copper says and does while in contact with you is directed towards proving you are guilty of a crime.

    More importantly, everything you say and do will be reported and, if necessary, embellished for the same purpose.

    Here’s something all of my friends have watched, and which the smart ones practice religiously:


    DWI is a crime for which there is no reliable defense. Whether you are drunk or not, if a copper says you were impared, a Judge will find you guilty. The breathlyzer seals the deal, but there are plenty of people sporting a conviction that blew well below the legal limit.

    We won’t even get into the quasi-criminal civil case the DPS brings to take your liscense.

    Seems I know plenty about this doesn’t it? Yeah well….

  2. but the fact is that “field sobriety tests” are not about determining if you’re sober. They’re about supporting the officer’s case against you in court. They are not designed to make you look sober; they are, in fact, not designed to be passed at all.

    Exactly. You are allowed to refuse to take the field tests, and I would suggest that you do, even if you never drink. You are required to give a breath sample, but remember, nothing, nothing you do during field sobriety tests will serve to exonerate you rather than incriminate you. Respectfully decline to do field testing.

  3. Absent standardized field sobriety tests (SFST), the officer’s assessment of your degree of impairment (if any) and her/his subsequent decision to arrest or let you continue on your way will hinge on the reason you were stopped in the first place. Your weaving, driving over the center line, etc. may well have been caused by avoiding a small animal, mechanical problems, or slight tiredness. However, these reasons are not provable may not have been apparent to the officer. The two beers you literally had, illness, or other symptoms may incorrectly (but logically) lend strength to the officer’s belief that you might be impaired. Hence the SFST.

    If you subscribe to the “all cops lie, the system is geared towards mass arrests and massive fines with no regard to the law of public safety – just ask my neighbor’s brother-in-law in Ohio” theory, you win. Nothing further in this post will be meaningful to you. Maybe even if you don’t …

    However, while everything you say and do can be used against you, everything you say and do may also be used to exhonorate you, prove sobriety, or non-impairment. No, that doesn’t mean that “if you have nothing to hide you have no reason not to cooperate”. It means that by lawfully refusing to engage in SFST you are avoiding the chance to prove that you are not impaired and to not be further detained, arrested, and possibly be criminally charged. Plus, it’s all taped (… of course they hire technicians to alter them) for all to see. Good or bad.

    Since most departments have a virtual zero tolerance arrest policy for lawful DWI arrests – an officer is unlikely to say “Curses, foiled again,” if you do not perform the tests. They will legally arrest you for the probable cause that prompted the stop, go through the DUI arrest process and act on the results of that.

    If you’re lucky, the breathtest (if you take it) will prove your sobriety. Now all you need to do is find a ride home, get one tomorrow to the impound lot, and pay the tow fee. Yes, you will have to pay it. You can try small claims court if you wish; good luck with that. If you fail the test, chances are you knew you were going to fail it already (unless the same guys who alter the tapes do the same with the Intoxilyzer).

    If you refuse, you may still be charged, both for DWI and for refusing the test (I too have a problem with that). So, you’ll have to find that lawyer who told you not to participate in SFST and the Intoxilyzer test and have your day in court.

    “The war on …” whatever troubles me. It removes objectivity from the public forum, particularly when they further the war by invoking the name of a recently dead child, killed by whatever it is we’ve declared war upon.

    However, don’t flatter yourself; the cops working at night don’t have your picture on their clipboard. DWIs are generally considered to be “good work” by all. Most of them (and us) have loved ones and family who use the same roadways that the drunks do. Making them safe has a personal as well as public safety enhancement. Arresting you for DWI will not be the highlight of their day, particularly if they have to start the process at the end of their 12-hour overnight shift. However if they didn’t make these arrests, many would call them lazy. And yes, there are circumstances under which SFST or even the breath test are not in your best interests. However, these are far less common than most. That’s for a good attorney to help you figure out. And yes, you should call one if arrested.

    By the way, if you put a penny in your mouth it will screw-up the breathalyzer, if you throw your car keys into the weeds after your are stopped they have no case, or if you tell them that you know the police chief she’ll let you go, are also commonly held beliefs. Ask any bartender. He got it from that attorney …

  4. I have been pulled over for weaving on to the shoulder for a couple of seconds, but then correcting. I had dropped my Snickers bar and looked down to grab it. When he got to the window and asked me the “do you know why, yada yada.” When I replied, “Probably because I weaved on to the shoulder for a couple of seconds,” he seemed surprised and then asked me the batch of questions. After explaining it and showing him the empty wrapper, he thanked me for cooperating and told me to drive carefully. He used his judgement and realized that outside of being a bit distracted, I was not DWI. I’m not sure how many officers do that today.

  5. Bosshoss429: Yours is exactly the type of situation I was trying (perhaps over-trying to) illustrate and I believe most officers now days would do it like that.

    Your driving demonstrated the type of activity that is consistant with DWI. Or any number of non-alcohol related reasons. He/she had probable cause for the stop. Next, she/he performed the first part of SFST: observation. You didn’t act drunk, didn’t look drunk, didn’t smell drunk, therefore there was no reason to continue. Any more would be a waste of yours and the cop’s time.

    Or, maybe you were tired and looked or sounded drunk. Or, you actually just had two beers and smelled drunk. Maybe fumbled with your wallet and DL. Those, plus driving conduct would justify further investigation. Maybe asking you to step out, sit in the squad, talk some more, see where that goes. If things still look drunk, then on sequentially to the arrest. Or not.

    I think that the perception that most cops will pull you over for any reason and run a full battery of tests without foundation is false. Even if a cop is that evil/dumb, there is little to be gained – if there’s no alcohol or drugs present there is nothing to make the process worthwhile. Is it possible? Absolutely. Is it commonplace? I suggest not.

    Most guys working the street at night will hopefully enforce impaired driving laws for as long as it takes to get to a better shift. Again, it’s good work. However spending 2-4 hours with an unhappy drunk is not picnic (a lot like some family holiday gatherings), and that aspect of law enforcement is just that; one aspect. Not worth breaking laws or personal ethics for. The guys who do it are certainly not deriving any direct benefit from it. Safer streets for their family maybe.

  6. Joe – your points are well taken, but the fact is that the “standardized” portion of the tests refers only to the fact that the test is the same one for each driver pulled over, suspected of DUI. The results of the test depend entirely on the subjective determination made by the officer. Once a stop is made, the officer has incentive to complete the stop with an arrest. Should an officer make a stop shown to be without finding some cause to do so, his superiors will notice. I guarantee you that if there is any hint of alcohol on the stopped driver’s breath, he will be taken in, regardless of his performance on the roadside tests.

    In addition, remember that a .08 BAC is not required to prove DUI. The arresting officer’s observations can still lead to a conviction if the officer convinces a jury that the subject was impaired regardless of BAC. This, of course is less and less common with the reduction of BAC limits.

  7. Swiftee, I was in a former life, but please don’t take my comments as defensivness. I tend to be as critical or worse than most about law enforcement.

    However, there are many myths and allegations – some true/most not – that tend to be generalized and taken as fact. My examples of the penny in the mouth and throwing the car keys are true – I’ve seen both, and others, honest.

    PJ, Hence the term “standardized.” Abilities, like disabilities, are unique to each individual. The SFST were developed back in the 90’s – early 2000’s (about) to remove the subjectivity. Prior to that, each agency, sometimes each officer, had their own version. I relied on mine and they seemed to work. However, lacking objectivity, I could, in theory, “up them a notch” if I didn’t like the guy, or lower them if it was someone I did like. They were supposedly developed under the guidance of those trained in physiology, medicine, etc. with the objective of making “one size fit all.” Of course that isn’t always guaranteed, but that was the goal.

    Prior to administration, the officer will ask the person if they have any condition, mental or physical, which would prohibit them from performing the task. A wooden leg (it happens), recent injuries, vertigo, learning disabilities, etc. would void that portion, so it should not be performed. No point to it. For example, a drive in a wheelchair would not be asked most of the physical tasks. However the mental acuity portions would be used. Or, if the guy is too drunk to stand up -had them before – they would not be offered SFST due to safety reasons and pointlessness. The officer’s observations and video evidence would be used.

    The probable cause (PC) which validates the stop is the driving conduct (if there was any) that caused the officer to pull the guy over. From the officer’s perspective, that’s all she/he needs to validate the activity. If, like Bosshoss429, it was caused by some minor distraction, that’s great. The officer would be derelict for not investigating it. Particularly if the driver went on to kill someone. Few would then commend her/him for using “discretion.”

    From a supervisor’s perspective (I can speak from both – but only IMHO) an officer who makes a lot of valid, worthwhile (meaning things that are truly suspicious) stops or contacts, regardless of outcome, will be recognized as doing good police work. Again, I mean valid and worthwhile. The lazy, usually non-productive officer who occasionally stumbles across a violator may have a great arrest rate. However, it’s the blind pig finding the acorn, not the early bird getting the worm (but you can’t make him drink).

    A Portable Breath Test (PBT) is an instrument now used by almost all agencies. They weren’t around when I started, but were great when they arrived. It is a test administered at the scene which basically says over-the-limit or not; drunk/ not drunk. It is a non-evidentiary screening. That is, it cannot be used as a breath test or used as evidence during trial. It is used when there are circumstances where the guy may be close or SFST were not performed. This would invalidate the “any whiff of alcohol” belief. It has also helped be “diagnose” the drunk who was having a diabetic reaction, complete with odor of alcohol (acetone on her breath), slurred speech, bad driving, etc. Called the ambulance.

    Of course a person can be convicted with out a test or BAC. I’ve had that situation a number of times. Most frequently it’s when the person refuses the Intoxilyzer (breath test). And indeed, impairment is more important than evidence of consumption. This can be caused by drugs (legal or otherwise) or other substances (paint and glue are now included), or other external factors.

    The key is the inability to drive safely. Sleep deprivation, phones, texts, etc. are all methods of impairment which can be charged (with other statutes, though). A person was recently convicted of vehicular homocide (or similar) for falling asleep behind the wheel, going off the road and killing a roadside worker. Impaired-crash-dead. No booze or substance intoxication but impaired none the less. So, a test is helpful but not crucial, and indeed, .07, .05, or .00 doesn’t get you out of jail free. And yes, there are times, guilty or not, when you should NOT take the test when offered. Not common, but that’s when the attorney earns his/her money.

    Again, there is nothing a cop gains by making numerous bad arrests. Their reputation in court suffers, they compromise their ethics (hopefully), and will be show as inefficient, dishonest, and lazy. If that isn’t enough, there is nothing in it for them. The pay’s the same. Screws-up your day off, and you got to spend time with an unhappy drunk (but without the turkey, pumpkin pie, and chance to become one yourself).

    I’ve seen bad cops, bad attorneys, and two-headed cows. However, I would not generalize those characteristics to the entire group. Still, they do exist and can’t be ruled out of an objective discussion.

    Sorry to be long-winded. It’s a topic I take personal interest in. My comments are intended towards our general audience and not towards any one in particular even though I’ve cited comments by other members.

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