The problem is that a "field sobriety test" is fairly subjective and the cop can lie about it. Refusing it is common sense, especially if the cop is being a dick.

Posted by: Graculus | July 6, 2008 10:54 AM

Ed: I'm surprised you don't step back and give the state a little leeway on the breath test. Your opinion neutralizes the ability of the police to protect other people from drunk drivers by making it dirt simple to avoid being tested. If a cop is reasonably suspicious that a driver has been drinking and he has an objective method of testing the driver's BAC, I don't see how privacy is invaded. The objective test is a strong counterpoint to the subjectivity of an officer's suspicion.

I don't feel violated blowing into a tube. I would say that blowing into a tube is extremely low on my violation-of-privacy priority list.

Posted by: FishyFred | July 6, 2008 2:20 PM

Gretchen writes: "Law-abiding people should have a principle of never allowing the police to give them sobriety tests or search their cars." Which implies that non-law-abiding people should not or will not? I'm kidding, of course.

Fishy Fred: I would say the example Ed provides shows that this test could be used as a counter-point to your assumption of the test as objective. The administering of the test itself was used to harass. If an officer asks me if I've had anything to drink and I haven't, and I'm showing no signs of being drunk there is no reason to assume my guilt. I am NOT going to submit myself to a test to prove what I already know. A person who is obviously impaired refusing a sobriety test is a different case as they provide a probable cause. I was once stopped and held-up for 45 minutes by officers just walking down the street because I didn't have I.D. Such abuses don't seem to be a brave defense of our constitutional rights.

Posted by: B8ovin | July 6, 2008 2:48 PM

The article makes it pretty clear that the test the driver refused was neither a blood test NOR a breath test - it was the completely subjective "field sobriety test" where the officer watches the driver walk, touch her finger to her nose, and similar fun activities. In fact, the officer had a portable breathalyzer available (if he didn't carry one, then surely one of the four other officers including a supervisor could have provided one), and chose not to use it.

Combining that with the officer's clearly biased description of the driver's condition, I think the harassment suit is going to be a slam-dunk win.

Posted by: BobApril | July 6, 2008 4:11 PM

James Hanley: I think there are two big reasons why this is different. First, a drunk driver is a danger to others as well as him or herself. This is not a point of argument. As long as we have proper restrictions on the use of the breathalyzer and ways of making ourselves heard when we are harassed (which aren't equal for everyone, but I'm not going off track), then I'm more than fine with giving police that power. You have my unqualified approval to raise hell when they abuse that power, which is the case in the original post.

Hell, if I'm the one driving drunk, I should WANT them to pull me over and arrest me so I don't kill anyone.

Second, a drunk driver may be a citizen, but a drunk person is not rational. I'm not saying you lose all of your rights when you pass .08, but in this narrow area: if the police can't stop drunk people from driving even in legitimate cases, then they are not able to do a very good part of their job.

I'm going to traffic court on Thursday to try to plea down a speeding ticket. It was legitimate. I was absolutely flying down I-80. But you can't seriously argue that a cop should be able to prove I'm speeding BEFORE he radars me, are you? I know about ticket quotas and I know that radars can be inaccurate, but when you deal with cops, sometimes - not always, but sometimes - the best course of action is to do your best to make them sorry after the fact and try to bite into the popularity of whatever bad practice you experienced.

Posted by: FishyFred | July 7, 2008 1:14 AM

I was once arrested with 0.00 percent alcohol and kept in jail all night, for more than 5 hours after the breathalyzer showed my innocence. The lesson I learned was that one should never cooperate with the police in anything that resembles "field sobriety tests". Those are nothing but scams designed to cover the ass of the officer who only cares about fulfilling the monthly arrest quota.

Posted by: bullfighter | July 7, 2008 11:14 AM

All libertarian notions about FST's aside, there's something more to this story. DUI attorneys are high on cops' lists of least favorite folk, and they are regularly shadowed. (Most localities have a few lawyers who specialize, and the FST and other measures taken by cops, precisely because of the civil liberties issues described here and more, are vulnerable. There are very few charges so frequently beaten as DUI, and there are none where the quality of your representation matters more. DUI specialists are expensive and worth it. Also, because DUI convictions carry so many hidden penalties--for well-to-do people, losing driving privileges can be extremely costly (and annoying)--people of means are willing to pay well for "the best possible defense." Juries can be persuaded that cops lie (because often it's a prerogative of their job) and that's a popular component of the standard dui defense. So cops hate DUI lawyers.
Good cops are like good hitters in baseball: they know that an average of less than perfect is normal. Sometimes you fan, and sometimes you smoke a line drive right at the fielder and a sure double is just a quick out. There are lots of cops who seldom lose a dui, but plenty more who are sloppy enough to get beat and nasty enough to retaliate.
So powerful DUI attorneys are often targeted. (though I don't necessarily approve of his vocation, I have a friend who is an accomplished DUI lawyer and who is regularly pulled over at night after leaving parties or restaurants--never in the daytime, always at night.) Two things make me think this is the case here: first, the driver had had no alcohol at all while driving with the husband/lawyer; second, she refused the test (which I'd expect if the lawyer suspected or knew that he was being targeted.) So the fallout from the bad arrest turns the tables on the cop. Wouldn't put it past the driver to show drunk a bit--wobble, slur, etc.--just to set the hook on the cop. If you are a local DUI defender and one of the cops in the jurisdiction is humiliated in a high-profile situation like this, it only helps your ability to discredit the rest of the force. Probably wouldn't expect the cops to go that far...but if they do, more fun for us.

ice

Posted by: ICE9 | July 7, 2008 2:01 PM