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Old 12-04-2012, 15:04   #112
Senior Member
Join Date: Jan 2011
Posts: 355
You and a buddy go out to get something to eat and a couple of drinks, on with your meal, one just before leaving. You are tired and relaxed after the meal and drinks.
So lack of sleep, smell of alcoholic beverage on breath, and likely bloodshot eyes (from lack of sleep) = several clues of impairment upon first glance by a trained officer.

A couple miles from the restaurant, not paying attention to your speed, you are stopped for speeding.
Likely the same route you've taken dozens of times if you've lived in that area, so how could you not know the speed limit? Not buying it.

The Milwaukee PD officer notices alcohol on your breath. He asks if you have any firearms. You say yes. He asks if it is loaded. You respond in some manner that it is.
So an officer who observes possible signs of impairment asks you about firearms and you respond in the affirmative. The reasonable actions by the officer is to take you out of the vehicle and place you in handcuffs. This is done every day. If an officer has a reasonable belief someone may be armed/dangerous, they can take steps necessary to protect himself, the person, and anyone else. Obviously you're armed and a reasonable person could come to the conclusion that you might be dangerous if it turns out you're impaired. The DUI investigation is still ongoing so the officer does what he feels his necessary to continue the investigation SAFELY (i.e. disarm you).

They then commence a search incident to your arrest.
One of two things happened. Either they decided to arrest for DUI or possession firearm while impaired (or both); OR they placed you in the vehicle to specifically retrieve the weapon. Either way, both searches are legal. Search incident to arrest to remove the firearm because it's an element of the crime or a terry search for weapons within your reach in the vehicle. Obviously since you told them you were armed they were going to retrieve it after placing you in handcuffs.

Just because someone has a Blood Alcohol Content (BAC) of .012 does not mean they're not impaired. I've been a DUI instructor for several years and I've seen plenty of people impaired below .08%. This doesn't even include the possibility of drugs in the blood. I recall arresting a female who was totally wasted and plowed into a vehicle. Her BAC was .03%, but the amount of xanex in her system was huge.

What many people don't understand is that .08% is the "per se" limit, which means that the state (in trial) PRESUMES the person to be impaired at .08% or greater. The District Attorney does not have to prove the "impairment" element in trial if you're .08% or greater.

Regardless of the outcome of the trial, it's pretty apparent from the fact pattern so far that all of the actions taken by the officers were reasonable. If an attorney decides to file a state or federal 1983 claim with this fact pattern, they would be lucky not to be sanctioned by the court for filing something so frivolous. With the fact pattern provided I guarantee it would never make it past summary judgment (in favor of the officers of course).
SgtScott31 is offline   Reply With Quote