# Breathalyzer test challenge **URL:** \ **Category:** Great Debates\ **Created:** [September 13, 2010, 1:20am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551 "2010-09-13T01:20:19Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [September 13, 2010, 1:20am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/1 "2010-09-13T01:20:19Z")
If the state determines that alcohol impairs judgment so much that you can’t consent to sex, why is the state allowed to accept the consent to a breathalyzer test? It would seem that if you are drunk you can’[t give your consent, and any consent you do give would be inadmissible. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [September 13, 2010, 1:29am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/2 "2010-09-13T01:29:24Z")
You give the consent when you apply for the driver’s license. ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [September 13, 2010, 2:34am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/3 "2010-09-13T02:34:55Z")
> [@runner pat](#): > > You give the consent when you apply for the driver’s license. Yep, that’s the “implied consent law”. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 13, 2010, 3:19am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/4 "2010-09-13T03:19:03Z")
FWIW, in most (or at least several) states you are not required to submit to a breathalyzer test. However, if you don’t, you lose your license for a year. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [September 13, 2010, 3:20am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/5 "2010-09-13T03:20:04Z")
Implied consent can’t be given. That’s why it’s implied. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [September 13, 2010, 3:22am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/6 "2010-09-13T03:22:44Z")
oh, also, people really need to be clear on the distinction between a preliminary breath test and the breathalyzer that they’re talking about with implied consent laws. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 13, 2010, 7:03am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/7 "2010-09-13T07:03:05Z")
> [@Really\_Not\_All\_That\_Bright](#): > > FWIW, in most (or at least several) states you are not required to submit to a breathalyzer test. However, if you don’t, you lose your license for a year. If the penalty is loss of license, it makes no sense to say it’s not required. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [September 13, 2010, 7:11am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/8 "2010-09-13T07:11:47Z")
> [@x-ray\_vision](#): > > > [@Really\_Not\_All\_That\_Bright](#): > > > > FWIW, in most (or at least several) states you are not required to submit to a breathalyzer test. However, if you don’t, you lose your license for a year. > > If the penalty is loss of license, it makes no sense to say it’s not required. Nobody said it was free. Just not required. You aren’t required to get a drivers license in the first place. But if you want to drive, that’s the price. If you want to keep the driver’s license, the breathalyzer is the price. But your aren’t required to keep the license. And you aren’t required to take the breathalyzer. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [September 13, 2010, 12:01pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/9 "2010-09-13T12:01:38Z")
> [@runner pat](#): > > You give the consent when you apply for the driver’s license. What if you have never applied and were driving without a license? ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 13, 2010, 12:39pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/10 "2010-09-13T12:39:53Z")
> [@TriPolar](#): > > > [@x-ray\_vision](#): > > > > If the penalty is loss of license, it makes no sense to say it’s not required. > > Nobody said it was free. Just not required. You aren’t required to get a drivers license in the first place. But if you want to drive, that’s the price. If you want to keep the driver’s license, the breathalyzer is the price. But your aren’t required to keep the license. And you aren’t required to take the breathalyzer. Read **Really Not All That Bright** ’s statement again. He said in several states it’s not required to submit to a breathalyzer test, however, if you don’t, you lose your license for a year. Then how is it a requirement in the other states? Again, if there’s a penalty for not doing something, then doing it is a requirement. Not being required to keep a license has nothing to do with this. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [September 13, 2010, 1:18pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/11 "2010-09-13T13:18:59Z")
> [@kanicbird](#): > > > [@runner pat](#): > > > > You give the consent when you apply for the driver’s license. > > What if you have never applied and were driving without a license? I just looked up California’s law(where I live) and I was somewhat wrong. By driving on public roads, you give consent. [Full text here.](http://www.dmv.ca.gov/pubs/vctop/d11_5/vc23612.htm) > [@](#): > > 1. (a) (1) (A) **A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood,** if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies. > > (B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. > > (C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153. ETA:Part of the application paperwork does deal with implied consent. ---
**Author:** ![KinkiNipponTourist](https://avatars.discourse-cdn.com/v4/letter/k/e9bcb4/32.png) [@KinkiNipponTourist](https://boards.straightdope.com/u/KinkiNipponTourist)\ **Post date:** [September 13, 2010, 1:33pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/12 "2010-09-13T13:33:59Z")
> [@kanicbird](#): > > > [@runner pat](#): > > > > You give the consent when you apply for the driver’s license. > > What if you have never applied and were driving without a license? I apologize for the threadjack, but wanted to share this: I live in Japan. A friend’s husband was stopped for speeding. He was going fast enough to warrant immediate revocation of his license, but alas, he had never applied for one and so was driving sans license. Apparently this seeming impossibility threw the good folks at the police station: he had no license, therefore nothing to revoke. He got off scott-free. You know he tells this story to everyone he meets. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [September 13, 2010, 1:51pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/13 "2010-09-13T13:51:15Z")
> [@KinkiNipponTourist](#): > > > [@kanicbird](#): > > > > What if you have never applied and were driving without a license? > > I apologize for the threadjack, but wanted to share this: > > I live in Japan. A friend’s husband was stopped for speeding. He was going fast enough to warrant immediate revocation of his license, but alas, he had never applied for one and so was driving sans license. > > Apparently this seeming impossibility threw the good folks at the police station: he had no license, therefore nothing to revoke. > > He got off scott-free. You know he tells this story to everyone he meets. Not that I doubt your friend who would \*\*never \*\*sacrifice accuracy in story retelling for dramatic value or anything, but… they weren’t able to fine him and/or charge him for driving without a license? :rolleyes: ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [September 13, 2010, 1:55pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/14 "2010-09-13T13:55:02Z")
> [@kanicbird](#): > > > [@runner pat](#): > > > > You give the consent when you apply for the driver’s license. > > What if you have never applied and were driving without a license? it’s already been answered, but most states the consent is implied every time you drive on the streets - the ones that make it a part of the driver’s licensing process probably double up on the “implied” consent. plus, I know in Illinois at least that getting caught driving while intoxicated (and, again, you **do not** need a breathalyzer test, and it doesn’t matter if you don’t have a BAC over .08, to get convicted for a DUI) is a felony, even for the most mickey mouse first time DUI offense, if you don’t have a valid license at the time you’re pulled over. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 13, 2010, 2:03pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/15 "2010-09-13T14:03:33Z")
> [@x-ray\_vision](#): > > > [@TriPolar](#): > > > > Nobody said it was free. Just not required. You aren’t required to get a drivers license in the first place. But if you want to drive, that’s the price. If you want to keep the driver’s license, the breathalyzer is the price. But your aren’t required to keep the license. And you aren’t required to take the breathalyzer. > > Read **Really Not All That Bright** ’s statement again. He said in several states it’s not required to submit to a breathalyzer test, however, if you don’t, you lose your license for a year. Then how is it a requirement in the other states? Again, if there’s a penalty for not doing something, then doing it is a requirement. Not being required to keep a license has nothing to do with this. It may be required in all states. I only know it’s required in some states. However, the point is that you cannot be _compelled_ to take a breathalyzer by threat of a fine, jail time, or whatever. Hence, “not required”. In a case where a driver knows he is over the legal limit, he should absolutely refuse to take a breathalyzer, and will thereby probably avoid prosecution. A year of not driving is a lot cheaper than a DUI. It’s possible that there are states where you not only lose your license, but go to jail. Anyway, as **Rumor** correctly points out, you _can_ be convicted of DUI without any objective measure of blood alcohol content, though you have to be pretty well snookered. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 13, 2010, 4:09pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/16 "2010-09-13T16:09:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It may be required in all states. I only know it’s required in some states. However, the point is that you cannot be _compelled_ to take a breathalyzer by threat of a fine, jail time, or whatever. Yes, you can. What do you mean you can’t be? How can something be a requirement if there’s no penalty for not submitting? Officer: You are required to take this breathalyzer test. Me: What happens if I don’t? Officer: Oh, nothing. You said: > [@](#): > > FWIW, in most (or at least several) states you are not required to submit to a breathalyzer test. However, if you don’t, you lose your license for a year. If there’s a penalty for not submitting (losing your license), then submitting is a requirement by definition. If the penalty is losing your license in the states you claim there is no requirement, what distinguishes those states from those that do have a requirement? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 13, 2010, 4:32pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/17 "2010-09-13T16:32:04Z")
Read my previous post again. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 13, 2010, 4:38pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/18 "2010-09-13T16:38:29Z")
I can take some guesses as to how you’d like me to interpret your last post, but it would be simpler if you just answered my questions rather than me attempting to answer them myself. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 13, 2010, 4:44pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/19 "2010-09-13T16:44:52Z")
REQUIRED = you go to choky if you don’t do it. NOT REQUIRED = don’t go to choky. Lose your license. Happy? ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 13, 2010, 4:57pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/20 "2010-09-13T16:57:01Z")
Whatever. You’re the only one I’ve come across that has “requirement” defined by whether or not jail time is involved. _Any_ penalty makes doing or not doing something a requirement. [Next page](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551.md?page=2)