14 April.pdf April 2014 | Page 54

By David Lee Wells Passed Portable Breath Test – Drunk or Not? The driver of a vehicle was stopped by the State Trooper. The Trooper smelled the presence of alcohol and the driver admitted to having a few beers. The Trooper asked the driver if he would blow into a portable mobile breathalyzer device. The driver consented and his blood alcohol level registered below the legal limit of .08 (the level of presumed impairment). Things were going good but the Police Officer arrested the driver anyway even though the driver told the Trooper “Hey, I’m not drunk. Your machine says I passed.” The driver doesn’t do well on the other sobriety tests which consist of walking, turning, etc. Once at the county jail, the driver is asked to blow into the “big machine.” The driver who has been drinking thinks “I passed the first one. This one will be a breeze.” However, the driver fails. The “big machine” indicates the driver is over the legal limit. One device says drunk and the other says not drunk. The driver knows the State has to prove the driver’s guilt beyond a reasonable doubt. The driver should win his case? The Court of Appeals ruled that the driver loses because the accuracy of the portable mobile breathalyzer devices are in question as they are carried around in a patrol cars, often banged around or dropped on the ground, may not be inspected often, and are rather inexpensive. The portable device is used by the Trooper to determine whether or not there is “probable cause to arrest” for DWI. The standard for suspicion of committing a crime is very low as it is a mere belief that a crime is been committed versus proof beyond a reasonable doubt. The results of the portable mobile breathalyzer device may not be admitted into evidence by the defendant to prove guilt or innocence. The results can only be considered by the Court to establish the presence or non-presence of alcohol. If the test does not indicate the presence of alcohol, the Court would consider the mobile breathalyzer device results along with other possible evidence such as the sobriety tests and the observations of the police officer Portable mobile breathalyzer devices are inexpensive and can detect some level of impairment, 54 Wide Open though not beyond a reasonable doubt, but you are probably drunk. So if you drive now and then, shouldn’t you have a portable mobile breathalyzer device in your glove compartment to test yourself after you leave the bar and begin to drive? Yea! A portable mobile breathalyzer device can be purchased for as little as $39.99. You might say “I am not going to spend $39.99 on a portable mobile breathalyzer device because I wouldn’t use it.” Sure you can. You are smart enough to use your keys to unlock the glove box, get out your portable mobile breathalyzer device, turn on your interior dome light, turn on the device, blow into the proper tube (only one), read the results, believe the results and DON’T START YOUR CAR! Remember, law enforcement can now utilize a camera and computer which have the capability to scan a license plate to determine if the owner of the vehicle has a DUI conviction on their driving license record. If they desired, police officers could drive by the parking lots and streets of local bars to find possible (target) drivers under the influence. Cops are like rabbit hunters. If you are hunting rabbits, don’t hunt in a cement parking lot, go where rabbits go. “Harold Ensley ‘The Sportsman’s Friend’ 1972” Ex-Husband Pulls Gun on Ex-Wife The ex-wife applied for an Adult Abuse Protective Order because the ex-husband pointed a gun at her when she was returning their child after visitation. The ex-husband claimed the ex-wife barged into his house and he asked her to leave. As he tried to call the police the ex-wife knocked the phone out of his hand. Ex-husband went and got his hand gun just in case. Ex-wife continued the argument and struck ex-husband several times in his sensitive parts. Ex-husband pulled out his hand gun and told ex-wife to leave. The case went to court. The Appellant Court agreed that the Order of Protection should be refused because of Missouri’s self defense “castle doctrine” which states that a person can use deadly force against anyone who unlawfully enters their home or stays after they are told to leave. The use of justifiable force shall be an absolute defense to criminal pro- cedures civil liability including the request for a protective order. So Gentleman, do not go to your ex-wife’s house, her “castle”, and start an argument or a fight as you are as they say “bought and paid for” so she can start shooting. As your mother always said, “be nice.” Driving and Smart Phone Maps The California Police Officer saw the defendant with a smart phone in his hand while driving an automobile. The driver indicated he was not talking on the phone nor was he listening to music but was merely using the smart phone’s map app to find out where he was going. The California Appellant Court threw out the conviction and stated that while driving and listening, talking or texting on a phone is prohibited, the statute did not apply to reading a map app. The Court indicated that other uses of the phone were not prohibited by the California statute. MZU-SUX A gentleman in St. Charles decided on a vanity plate for his automobile. He liked the 6 letters “MZU-SUX”. When he applied for the vanity plate, the gentleman had some other choices with some variation of the word Jayhawk. The State of Missouri issued the license plate with MZU-SUX which he put on his motor vehicle. Some concerned citizen of the State of Missouri spotted the gentleman driving around with the plate and complained to the Department of Revenue. The gentleman received an order from the Missouri Department of Revenue ordering him to surrender the license plate. The Missouri Department of Revenue argued that the plate violated the rule of offensive message. The driver argued that the word “sucks” does have a sexual meaning in some cases but can also mean objectionable or inadequate, i.e., “MUZ BAD”. The Missouri Court of Appeals held that “SUX” as it appears on the plate does not describe a sexual act or appeal to prurient interest. The gentleman got to keep his plate and is the envy of many non-Missouri fans.