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Saunders, Real Estate, Hamptons
27east.com

1 Comments by dogcatcher


Southampton Town Supervisor Kabot, attorney give first interview on DWI arrest

To highhatsize:

Could you please stop trying to educate people on the law and make broad generalizations about all police officers and their state of mind during the performance of their job? First off, you constantly misquote and misinterpret the law constantly in your posts. You have no idea what you're talking about. There is no rebuttable presumption in DWI laws in this state. There are two types of driving while intoxicated statutes--one is common law driving while intoxicated, which is based purely on the observations of the police officer for instances where someone refuses to take a chemical test and/or a test isn't available for them. This law was enacted when there were no readily available chemical tests to measure blood alcohol level, but we still needed a way to get drunk drivers off the road. With the advent of cheaper and reliable methods of chemical testing, a second statute was enacted that made it illegal to drive with a blood alcohol level above a certain percentage. Today, that percentage is .08. It is illegal for you to operate a car when your blood alcohol level is .08 or above--regardless of whether or not you, as an individual, are actually intoxicated at that level. You could be a functional alcoholic who can actually operate a car pefectly well by any objective standard, but if your BAC is .08 or more, you are legally prohibited from driving a car. If you don't like it, don't drive. Driving is a privilege, not a right. You have to get a license to drive. You submit to this rules when you apply for and get a license. Also, in the law a rebuttable presumption is something that is presumed true unless proven otherwise. That is not present in our DWI laws. Nothing is presumed during a criminal case other than a presumption that the accused is innocent until the government proves them guilty. If you blow .08, the government still has to prove that the test was working properly, it was calibrated, it was administered properly by someone who is certified to administer it, and that the defendant in the case is actually the one who drove that car and blew that result on the test There is no burden placed on the accused to undo the results of the test. The accused doesn't have to prove a thing or put on any defense at all. Therefore, .08 it is not a rebuttable presumption of anything. Rebuttable presumptions are generally reserved for civil litigation. In criminal law, there is a presumption of innocence and the government always has the burden.

All DWI arrests start with a traffic stop. A motorist commits some sort of vehicle and traffic violation and the cop pulls them over because of it. There are hundreds of vehicle and traffic laws and a cop can stop you for any single one of them. It's completely legal and constitutional for a cop to pull you over for anything from speeding to equipment violations. If your plate light is out, if you cross a double yellow line, if you speed, if you are missing an inspection sticker, it is within the rights of a police officer to pull you over. It's not a case of an officer "fishing" if he stops you or someone else for a legitimate vehicle and traffic violation. Now, if during the stop, he notices you smell like you've been drinking all night, obviously he's going to investigate it further. If during the investigation you can't do simple things like walk in a straight line or follow directions, chances are he's going to think you're drunk and arrest you. He will likely offer you a breath test either on the road side or at the PD to confirm that you are indeed drunk and aren't having problems with these tests because of some other condition besides intoxication. If you don't take it, you are stuck with a cops word against yours that you were not intoxicated, plus the stigma of probably refusing the test because you know you'd in fact fail it if you took it. If you do take it, and you are within the legal limits, you get to go home and everyone is happy. Are there overzealous cops? Sure. Just like any profession you have bad apples. But if someone smells like booze when they're stopped by the PD for a traffic infraction, I would expect the officers to inquire further and make sure that the person has the requisite mental and physical abilities to drive, and if their BAC is outside of the legal limit, we as a society have passed laws that say they shouldn't be driving. If you don't like that, vote someone into the legislature that will change the law to be more lenient towards drunks. I'm sure there's a lot of drunks that would get together and support you to lobby for that. You constantly speak of how the breath test is so flawed, yet time and time again over the past 30 years it's been upheld and the tests have been improved upon for greater accuracy, not to mention that the tests are programed to underestimate your actual BAC just to give the suspect the benefit of the doubt. Where's your empirical data about how these tests don't work? You're talking out your hat." Sep 25, 09 6:58 PM