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.