damn double post...

quote:

Originally posted by MarkT they don't have to prove your were drunk...this is not a DUI charge. this is an entirely separate charge for failing to provide a breathalyzer sample. I would be very curious to see this case law of which you speak, whereby the right to speak with an attorney prior to giving a sample was successfully used in court. if that were the case, would it not essentially render the law unenforceable?

I used my words poorly, I shouldn't have said "drunk". You're right, they don't have to prove you're "drunk" per se, but there are different drinking and driving offences (i.e. blood alcohol over 80 - what I was referring to when I said "drunk"; impaired driving and refusing to provide a breath sample).

I don't know the case off hand. I'll try to ask the lawyer at the office that specializes in drinking and driving charges tomorrow. As I stated, the right to a lawyer is not absolute here, it depends on the circumstances (i.e. if you're arrested, you have the right to a lawyer; if they're just asking you for a breath sample, you can ask for a lawyer, but it's not a guaranteed right b/c they haven't arrested you; but if they are requiring you to provide a sample, depending on the circumstances if you ask for a lawyer and they say no the sample COULD be excluded as a charter violation...it really depends on the case.) That's why it doesn't render the law unenforceable, it depends on the circumstance.

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quote:

Originally posted by iant56 I used my words poorly, I shouldn't have said "drunk". You're right, they don't have to prove you're "drunk" per se, but there are different drinking and driving offences (i.e. blood alcohol over 80 - what I was referring to when I said "drunk"; impaired driving and refusing to provide a breath sample). I don't know the case off hand. I'll try to ask the lawyer at the office that specializes in drinking and driving charges tomorrow. As I stated, the right to a lawyer is not absolute here, it depends on the circumstances (i.e. if you're arrested, you have the right to a lawyer; if they're just asking you for a breath sample, you can ask for a lawyer, but it's not a guaranteed right b/c they haven't arrested you; but if they are requiring you to provide a sample, depending on the circumstances if you ask for a lawyer and they say no the sample COULD be excluded as a charter violation...it really depends on the case.) That's why it doesn't render the law unenforceable, it depends on the circumstance.

I see what your getting at here, and I'm curious how they would handle that. By asking you for breath sample, it could be taken as they are asking you for evidence and you could argue you have the right to legal counsel in that case. But would that stop them for just charging you for refusing? And if they did do that, then maybe you could argue that you didn't refuse but were merely waiting for your lawyer...

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quote:

Originally posted by cammaxwell I see what your getting at here, and I'm curious how they would handle that. By asking you for breath sample, it could be taken as they are asking you for evidence and you could argue you have the right to legal counsel in that case. But would that stop them for just charging you for refusing? And if they did do that, then maybe you could argue that you didn't refuse but were merely waiting for your lawyer...

in which case it wouldn't it quickly become common knowledge that all you have to do to avoid providing a sample is ask for counsel? no one would ever agree to provide a sample anymore.

Lisa, I'd honestly love to hear more about this and under what circumstances such defenses can be or have been used. it's very interesting.

IMHO, technicalities are useful to combat overzealous, coercive and sometimes illegal actions by law enforcement...or to force legislators to tighten up shoddily written laws.

what is not cool is when people who quite simply ARE guilty, manage to get off thanks to their lawyers. the reality is that the vast majority of people who refuse to provide samples probably do so because they have been drinking and are afraid (or certain) that they will blow over the legal limit...and thus I support stiff penalties for refusing to do so.

everyone deserves their day in court though...so I don't support bullshit like photo radar or any such similar "automatic" penalties. those enforcing the law can't also be judge/jury.