# 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:** 2
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 13, 2010, 5:52pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/21 "2010-09-13T17:52:26Z")
The point is that one has a decision to make on whether to accept the breathalyzer test, even though there are consequences attached to the decision. This is in contrast to being arrested, in which one’s preference has no effect whatsoever on being cuffed and stuffed. One cannot decline to be arrested, one can decline a breathalyzer test and accept a less-than-optimal alternative. ---
**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, 6:03pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/22 "2010-09-13T18:03:38Z")
> [@Ravenman](#): > > The point is that one has a decision to make on whether to accept the breathalyzer test, even though there are consequences attached to the decision. Both have that decision to make. Take it or lose your license or take it or go to jail. > [@](#): > > This is in contrast to being arrested, in which one’s preference has no effect whatsoever on being cuffed and stuffed. One cannot decline to be arrested, one can decline a breathalyzer test and accept a less-than-optimal alternative. One cannot decline to have their license taken either if the law says that’s the penalty. If there was no penalty for not taking a breathalyzer, such as having a choice to take an alternate sobriety test, then it could be said that a breathalyzer is not a requirement. Having a penalty for it such as having your license taken away for a year (and I’m sure there are always monetary penalties to go along with that) makes it a requirement by definition. Whether or not you find one penalty more optimal than the other is irrelevant. ---
**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, 6:19pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/23 "2010-09-13T18:19:55Z")
Having your license revoked isn’t a penalty. Applying for a driver’s license and operating a vehicle constitute consent to take a breathalyzer. If you refuse a test, you have withdrawn your consent and can’t have a license anymore. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 13, 2010, 6:41pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/24 "2010-09-13T18:41:06Z")
> [@x-ray\_vision](#): > > > [@Ravenman](#): > > > > The point is that one has a decision to make on whether to accept the breathalyzer test, even though there are consequences attached to the decision. > > Both have that decision to make. Take it or lose your license or take it or go to jail. That doesn’t make sense. You can choose to NOT take the test, and lose your license. Shoot, it strikes me as completely logical for someone to decline taking a breathalyzer test if there were any question whatsoever as to their passing. Losing their license makes a lot more sense to me than possibly giving the government evidence of a DUI. > [@](#): > > One cannot decline to have their license taken either if the law says that’s the penalty. No, one can decline to take the test. To put it in roughly the same terms as you did earlier: Scenario 1: **Officer** : I ask you to take this breathalyzer test. If you do not, you’ll lose your license. **Driver** : Go screw, pig. I’m not taking your oppressive test, you tool of the capitalist patriarchy. **Officer** : Ok, I’m taking your license. _yoink_ Scenario 2: **Officer** : I am placing you under arrest. **Driver** : But I don’wanna. **Officer** : Oh, you don’t want to be arrested? Well, you said the magic words! If you don’t want to be arrested, then you realize you’re forfeiting your license for a year. Darn that state legislature that gives citizens a choice in whether to submit to being arrested or not, with a consequence applied to their choice. You are free to walk away, sir, after I take your license. _yoink_ The thing is, Scenario 2 doesn’t happen very often, because people don’t have a choice whether to be arrested, in contrast to to a choice they do have on whether to take a breathalyzer test. There is a difference between having a having a consequence-free choice in matters, having a consequential choice in matters, and having no choice in matters. ---
**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, 6:52pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/25 "2010-09-13T18:52:32Z")
> [@x-ray\_vision](#): > > Both have that decision to make. Take it or lose your license or take it or go to jail. > One cannot decline to have their license taken either if the law says that’s the penalty. If there was no penalty for not taking a breathalyzer, such as having a choice to take an alternate sobriety test, then it could be said that a breathalyzer is not a requirement. Having a penalty for it such as having your license taken away for a year (and I’m sure there are always monetary penalties to go along with that) makes it a requirement by definition. Whether or not you find one penalty more optimal than the other is irrelevant. The term required is applies to the government’s ability to deny you your rights. Having a driver’s license is not a right. The government cannot use it’s power to deny your right to not be arrested and thrown in jail if you don’t take a breathalyzer test. Are you unable to understand this concept, or just quibbling over the usage of the word ‘required’? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [September 13, 2010, 7:12pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/26 "2010-09-13T19:12:16Z")
> [@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? Well, a pre-existing agreement with a demon of Satan must be presumed whenever such a blatant act of law-scoffery takes place. Of course, the possessed person is not really the one in control of the situation (driving _sans_ license, driving under the influence), and a demon is not subject to impairment by alcohol. So, it’s really the unimpaired demon who is consenting to the breathalyzer. ---
**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, 7:17pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/27 "2010-09-13T19:17:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Having your license revoked isn’t a penalty. Of course it is. All punitive measures are penalties. You’re really stretching here. > [@Ravenman](#): > > That doesn’t make sense. You can choose to NOT take the test, and lose your license. You can also choose to not take the test and go to jail. Can you tell me in which state(s) it’s not considered a violation of the law yet just a forfeiture of license with no other penalties? > [@](#): > > Shoot, it strikes me as completely logical for someone to decline taking a breathalyzer test if there were any question whatsoever as to their passing. I’ve been told here in NJ by police officers that that’s not a good idea (though that’s been years ago and laws may have changed). It was (or still is) that by refusing the breathalyzer you’re automatically guilty. If you take it and fail, there are multiple technicalities one can get off on such as the breathalyzer hasn’t been recently calibrated, the officer hasn’t gone through his yearly re-certification process lately, etc. > [@](#): > > Losing their license makes a lot more sense to me than possibly giving the government evidence of a DUI. In NJ you lose your license because you’re automatically guilty of DUI by not submitting. In which state(s) do you lose your license and aren’t found guilty of DUI? > [@](#): > > Scenario 1: > > **Officer** : I ask you to take this breathalyzer test. If you do not, you’ll lose your license. > > **Driver** : Go screw, pig. I’m not taking your oppressive test, you tool of the capitalist patriarchy. > > **Officer** : Ok, I’m taking your license. _yoink_ What state does one get their license taken away without getting arrested and having other penalties? ---
**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, 7:40pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/28 "2010-09-13T19:40:44Z")
> [@x-ray\_vision](#): > > I’ve been told here in NJ by police officers that that’s not a good idea (though that’s been years ago and laws may have changed). It was (or still is) that by refusing the breathalyzer you’re automatically guilty. If you take it and fail, there are multiple technicalities one can get off on such as the breathalyzer hasn’t been recently calibrated, the officer hasn’t gone through his yearly re-certification process lately, etc. Nobody is automatically guilty of committing a crime in this country, ever. To be found guilty you have to have a trial. Follow my recommendation and drive drunk if you really want to understand the process. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [September 13, 2010, 7:43pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/29 "2010-09-13T19:43:18Z")
> [@kanicbird](#): > > 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. It’s an interesting argument, however, I think admitting that you were too drunk to consent to a breathalyzer is a poor defense against drunk driving. ---
**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, 7:47pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/30 "2010-09-13T19:47:34Z")
> [@x-ray\_vision](#): > > In NJ you lose your license because you’re automatically guilty of DUI by not submitting. In which state(s) do you lose your license and aren’t found guilty of DUI? All of them, as far as I am aware. Certainly Florida and Georgia. Okay, maybe that’s a bit sweeping. Let’s have a look at the law. From 26 A.L.R.4th 1112: > [@](#): > > Often, however, a person under arrest will refuse to submit to any scientific tests to determine the amount of alcohol in his system. He may give no reason for such a refusal, or he may claim that his refusal is based upon what he believes to be his constitutional rights or upon his belief that such tests are unreliable. Thereafter, if the arrested person is brought to trial and is alleged to have been intoxicated or under the influence of liquor, the prosecutor may feel that the refusal to submit to the scientific tests is evidence of the defendant’s guilt. Whether the prosecutor may convey these feelings to the trier of fact, by introducing evidence of the defendant’s refusal to take the tests, is the subject of the subsequent sections of this annotation. So it’s not automatic. In fact, it’s not _prima facie_ evidence of guilt anywhere, because that doesn’t exist in our system. The question here is whether your refusal can be entered into evidence. Turns out (shock!) that varies by state. A lot. However, based on the below, it _is_ admissible in Jersey. > [@](#): > > New Jersey > > State v. Badessa, 373 N.J. Super. 84, 860 A.2d 962 (App. Div. 2004) — 3[a] > State v. Bryant, 328 N.J. Super. 379, 746 A.2d 44 (App. Div. 2000) — 3[a] > State v. Cryan, 363 N.J. Super. 442, 833 A.2d 640 (App. Div. 2003) — 3\*\* > State v. Immerman, 73 N.J. Super. 421, 180 A.2d 175 (App. Div. 1962) — 3\*\* > State v. Ingram, 67 N.J. Super. 21, 169 A.2d 860 (County Ct. 1961) — 3\*\* > State v. Tabisz, 129 N.J. Super. 80, 322 A.2d 453 (App. Div. 1974) — 3\*\* ---
**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, 7:49pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/31 "2010-09-13T19:49:06Z")
> [@TriPolar](#): > > Nobody is automatically guilty of committing a crime in this country, ever. To be found guilty you have to have a trial. I know that. I didn’t bother rephrasing the way police officers have told me how it goes down (didn’t think anyone would nit-pick it). How about- If you refuse the breathalyzer you will be charged with DUI (again this ways years ago and the laws may have changed or the police officers may have all told me erroneous information)? > [@](#): > > Follow my recommendation and drive drunk if you really want to understand the process. Gee, thanks. ---
**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, 8:05pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/32 "2010-09-13T20:05:17Z")
> [@x-ray\_vision](#): > > > [@TriPolar](#): > > > > Nobody is automatically guilty of committing a crime in this country, ever. To be found guilty you have to have a trial. > > I know that. I didn’t bother rephrasing the way police officers have told me how it goes down (didn’t think anyone would nit-pick it). How about- If you refuse the breathalyzer you will be charged with DUI (again this ways years ago and the laws may have changed or the police officers may have all told me erroneous information)? > > > [@](#): > > > > Follow my recommendation and drive drunk if you really want to understand the process. > > Gee, thanks. Why all the quibbling then? You could be engaging in an interesting conversation about rights and police procedures. This is a hairy area of the law. Check out the change the drinking age thread. The pendulum swung from minimal enforecement of the law 50 years ago to the boot on the throat tactics of today. One reason is there will be a MADD representative at every DUI hearing, and judges are worried about appearing lenient. On top of that, were DUI? Are you just looking for a technicality to get out of paying the penalty you deserved? If you weren’t over the limit, there are a lot of ways you can fall down the rabbit hole with the current laws. Breathalyzers are more accurate now, but not always properly administered. Some states allow you to ask for a blood test, I don’t know how that applies everywhere. If you get pulled over here in RI, let me know, I have a lot of drunk stupid friends, so I know who the right lawyer is. I should be getting a finders fee from this guy. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 13, 2010, 9:07pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/33 "2010-09-13T21:07:07Z")
> [@x-ray\_vision](#): > > In NJ you lose your license because you’re automatically guilty of DUI by not submitting. In which state(s) do you lose your license and aren’t found guilty of DUI? > > What state does one get their license taken away without getting arrested and having other penalties? First, I note the comment that someone cannot be “automatically” guilty of a crime. Second, it appears that in Texas, one can have his license suspended administratively for 180 days for refusing to take the test. [Link,](http://www.billmangelaw.com/index.php/main/faqdwi/) [link.](http://blog.bennettandbennett.com/2008/06/to-blow-or-not-to-blow-a-little-texas-dwi-law.html) I would google for others, but frankly, it isn’t worth it, because… Three, I would suspect in the real world, it is hard to imagine that refusing to take the test would not result in an arrest for suspected DUI. I am guessing that in most if not all situations, if there is enough cause to ask someone to take the test, there’s enough to arrest. And after you are arrested, I understand that a person does not have a choice as to whether they can refuse to have their blood drawn – it is going to happen. ---
**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, 9:23pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/34 "2010-09-13T21:23:36Z")
> [@TriPolar](#): > > Why all the quibbling then? Because this is the SD and I’m responding to others that are also quibbling with me? > [@](#): > > On top of that, were DUI? Are you just looking for a technicality to get out of paying the penalty you deserved? Is this directed at me? No. No idea why you’re asking me that. > [@Ravenman](#): > > First, I note the comment that someone cannot be “automatically” guilty of a crime. Did you note that I already commented on the context I made that statement, or are you just trying to score points? > [@](#): > > Second, it appears that in Texas, one can have his license suspended administratively for 180 days for refusing to take the test. [Link,](http://www.billmangelaw.com/index.php/main/faqdwi/) [link.](http://blog.bennettandbennett.com/2008/06/to-blow-or-not-to-blow-a-little-texas-dwi-law.html) I would google for others, but frankly, it isn’t worth it, because… > > Three, I would suspect in the real world, it is hard to imagine that refusing to take the test would not result in an arrest for suspected DUI. I am guessing that in most if not all situations, if there is enough cause to ask someone to take the test, there’s enough to arrest. What’s the point of this? I realize one can have their license suspended for refusing to take the test; I’ve already said this. > [@](#): > > Three, I would suspect in the real world, it is hard to imagine that refusing to take the test would not result in an arrest for suspected DUI. Exactly. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 13, 2010, 9:28pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/35 "2010-09-13T21:28:07Z")
So the main contention here seems to be around the word “required.” The thing is, no one would balk if I said, “Yes, my sidewalk vending license requires me to submit my collected sales taxes on a weekly basis. If I don’t, they’ll suspend my license.” So I have to say it’s not entirely clear to me why it’s not fair to say it’s also required to submit to the BAC test. Refusal carries a penalty. It’s true that savvy defendants treat this as a game theory sort of risk-reward scenario, reasoning that since the penalty for refusal is less than the penalty for a DUI, they will choose to refuse the test. But that doesn’t transform the BAC test into something less than a requirement. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 13, 2010, 9:32pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/36 "2010-09-13T21:32:21Z")
> [@x-ray\_vision](#): > > Did you note that I already commented on the context I made that statement, or are you just trying to score points? Because you asked me the question directly. And I note that there is a huge, gaping chasm between “automatically guilty of DUI” and “will be charged with DUI.” You cannot reasonably respond that people are nit-picking the difference between being convicted vs. being arrested. There’s no reasonable explanation for trying to play off both of those terms for being interchangeable, or one being a simplification of another. > [@](#): > > What’s the point of this? I realize one can have their license suspended for refusing to take the test; I’ve already said this. You asked me, and I quote, “Can you tell me in which state(s) it’s not considered a violation of the law yet just a forfeiture of license with no other penalties?” I have responded that, in Texas, you can have your license administratively revoked for refusal. I’m assuming in that barbaric state of Texas, a person cannot be administratively subject to other penalties such as imprisonment. ---
**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 14, 2010, 1:30am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/37 "2010-09-14T01:30:57Z")
> [@Ravenman](#): > > Three, I would suspect in the real world, it is hard to imagine that refusing to take the test would not result in an arrest for suspected DUI. I am guessing that in most if not all situations, if there is enough cause to ask someone to take the test, there’s enough to arrest. And after you are arrested, I understand that a person does not have a choice as to whether they can refuse to have their blood drawn – it is going to happen. Ugh. This is just a really bad misunderstanding of what breath test the implied consent laws apply to. Please, if you don’t really know what you’re talking about, don’t misinform everyone else. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [September 14, 2010, 3:13am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/38 "2010-09-14T03:13:45Z")
> [@Rumor\_Watkins](#): > > Ugh. This is just a really bad misunderstanding of what breath test the implied consent laws apply to. > > Please, if you don’t really know what you’re talking about, don’t misinform everyone else. Well, you could always chide me AND correct me. My assumptions are: 1. that a police officer will likely have a pretty good clue you’ve been drinking before asking to administer a breathalyzer. 2. In most of those cases, he likely has already made the decision that there is sufficient grounds for an arrest. 3. After you are arrested, there’s pretty much no way you get get out of having a more thorough examination to determine your intoxication. I’m genuinely interested to hear your comments. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [September 14, 2010, 11:15am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/39 "2010-09-14T11:15:17Z")
> [@Ravenman](#): > > 1. After you are arrested, there’s pretty much no way you get get out of having a more thorough examination to determine your intoxication. What makes you think that being arrested changes your right to avoid self-incrimination? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [September 14, 2010, 11:31am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/40 "2010-09-14T11:31:03Z")
[quote=“runner pat, post:11, topic:553551”] > [@kanicbird](#): > > 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, OK, this is better, how can a drunk person give implies consent while impaired for driving on a public road yet is deemed unable to give implied consent for sex while impaired? [Previous page](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551.md?page=1) [Next page](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551.md?page=3)