# 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:** 5
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [September 14, 2010, 9:39pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/81 "2010-09-14T21:39:36Z")
To sum it up, **kanicbird** -there is no magic procedure, circumstance, phrase or loophole that will get you out of a drunk driving charge if an officer of the law thinks that you are driving under the influence. If there were, _it would damn well have been taken care of by now._ ---
**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, 9:44pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/82 "2010-09-14T21:44:46Z")
I agree 100%. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [September 14, 2010, 9:48pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/83 "2010-09-14T21:48:14Z")
Also, if you try that "A demon possessed me!’ defense, you might get rewarded with free room and board-psychiatric observation if the judge believes you, jail if he doesn’t. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [September 14, 2010, 9:54pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/84 "2010-09-14T21:54:05Z")
> [@treis](#): > > > [@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. Have I told you recently that I love you, **treis**? ---
**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 14, 2010, 10:01pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/85 "2010-09-14T22:01:49Z")
> [@Ravenman](#): > > For the one hundredth time, yes, you can refuse, and then you lose your license. > > That does not mean that you are incapable of refusing the test. True. I bet even Stephen Hawking is capable of refusing the test. > [@](#): > > The law protects your option to refuse to take the test, with the consequence being you lose your license. Sure. Just like the law protects your option to go through red light, with the consequence of being charged for it. ---
**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 14, 2010, 10:20pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/86 "2010-09-14T22:20:16Z")
> [@Ravenman](#): > > The law protects your option to refuse to take the test, with the consequence being you lose your license. Can you tell me what this protection by the law is? I can’t even fathom what you might mean by this. How is an option protected if there’s a charge for taking one side of the option? ---
**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 14, 2010, 10:22pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/87 "2010-09-14T22:22:50Z")
> [@x-ray\_vision](#): > > > [@Ravenman](#): > > > > For the one hundredth time, yes, you can refuse, and then you lose your license. > > > > That does not mean that you are incapable of refusing the test. > > True. I bet even Stephen Hawking is capable of refusing the test. > > > [@](#): > > > > The law protects your option to refuse to take the test, with the consequence being you lose your license. > > Sure. Just like the law protects your option to go through red light, with the consequence of being charged for it. No, it is not a violation of law to refuse to take the test. Your forfeiture of your license is something already agreed to. I don’t believe you can be charged with refusing to take the test. And if the police have no other evidence that you are intoxicated, or committed some other violation, they couldn’t charge you with anything. It is quite clear that the police have an advantageous situation if you appear to be intoxicated, which is why they pulled you over. And that’s because you agreed to that giving them that advantage when you got your license, or apparently just by driving on the public roads. They are also more likely to be believed if they lie in many cases. And that’s what happens whenever you encounter the police. And you are at a serious disadvantage if you actually are intoxicated, because you have no legitimate defense to the charge. ---
**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 14, 2010, 10:51pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/88 "2010-09-14T22:51:05Z")
> [@TriPolar](#): > > No, it is not a violation of law to refuse to take the test. Your forfeiture of your license is something already agreed to. I don’t believe you can be charged with refusing to take the test. A quick Google search gives me the following (bolding mine): > [@](#): > > Not long ago, an off-duty sergeant of the New Jersey State Police was **charged** with DWI **as well as refusal to submit to a breath test** following a traffic accident in Warren County, NJ. > **[Off-duty NJ State Police Sergeant Charged with DWI, Breath Test Refusal after...](https://www.newjerseydwilawyerblog.com/offduty-nj-state-police-sergea/)** > > Having worked both sides of the aisle as a former New Jersey municipal prosecutor and now as a drunken driving defense lawyer, I am always appalled whenever I hear of a law enforcement officer ... > [@](#): > > In California, **there is an “implied consent” law which requires that, after being arrested for a DUI, you _must provide_ a blood or breath sample** to determine what your blood alcohol level, if under the influence of alcohol, was at the time of driving. [http://www.willdefenddui.com/dui-refusal.php](http://www.willdefenddui.com/dui-refusal.php) > [@](#): > > If you are currently **charged** with breath test refusal and have a prior refusal or prior DUI on your record within the past 10 years, the current charge is treated as a second offense. The penalty is: [http://www.duimacdowelllaw.com/PracticeAreas/Refusal-Breath-Blood-Test.asp](http://www.duimacdowelllaw.com/PracticeAreas/Refusal-Breath-Blood-Test.asp) > [@](#): > > For a second and third refusal, you will face a three-year driver’s license suspension\*\* in addition to jail time\*\*. Even if your other refusal or DUI conviction happened in another state, it will count towards your sentencing. [http://www.virginiaduilawyer.net/virginiaunreasonablerefusal.html](http://www.virginiaduilawyer.net/virginiaunreasonablerefusal.html) And one for Texas: > [@](#): > > In Texas, police officers often administer a blood or breath test to measure blood alcohol content (BAC) after a driver performs poorly on field sobriety tests. In Texas, refusal to take a test to measuring blood alcohol content when suspected of drunk driving can result in suspension of your driver’s license. Failing a blood or breath test **(or refusal to take one) will result in charges**. > **[Home](https://www.bestdefensetx.com/PracticeAreas/Challenging-Blood-and-Breath-Tests.asp)** > > The Law Offices of Stephen H. Miller, located in Plano Texas, represents defendants in criminal cases. You’re being charged with something when you violate the implied consent **law**. > [@](#): > > Your forfeiture of your license is something already agreed to. You have consented to a DUI test. The penalty is another matter and loss of license is a possible penalty among others. ---
**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 14, 2010, 11:03pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/89 "2010-09-14T23:03:41Z")
> [@x-ray\_vision](#): > > [You have consented to a DUI test. The penalty is another matter and loss of license is a possible penalty among others. I stand corrected. But some of your cites do not specify an actual offense of refusal. And all of the penaties for a first offense are, guess what, suspension of your license. The same thing that would happen if this was not specified as an offense. I can’t really be sure that any of your cites explicitly state that a first time refusal is a specific crime or misdemeanor either. But since their is no difference in the outcome, it all remains the same in the end. Everybody, please don’t think about this thread while driving, remember what Uncle Buckle the Safety Buffalo says, ‘If you drive, don’t think. If you think, don’t drive’. ---
**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 14, 2010, 11:22pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/90 "2010-09-14T23:22:13Z")
> [@TriPolar](#): > > I stand corrected. But some of your cites do not specify an actual offense of refusal. And all of the penaties for a first offense are, guess what, suspension of your license. I didn’t bother looking for other penalties such as fines, but another quick Goole search resulted in this (bolding mine): > [@](#): > > Refusing to take the test is more serious; the suspension is for at least one year, and you must wait at least 90 days for a hardship permit, even if you qualify. **Refusing the test is a traffic violation in itself**. If you are convicted of refusing a breath test, **the fine will be at least $500 and can be up to $1,000**. > **[Must I Take a Chemical Breath Test?](https://www.osbar.org/public/legalinfo/1271_BreathTest.htm)** > [@](#): > > The same thing that would happen if this was not specified as an offense. If it weren’t an offense, you couldn’t be charged with anything and there would be no loss of license. ---
**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, 11:27pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/91 "2010-09-14T23:27:26Z")
As I have said, the laws are different in different states. Way back when, I chose to talk about Texas because they apparently do not treat refusal as a criminal matter – only administrative. Not all states allow refusal. Some do. Not all states treat refusal as an administrative matter. Some do. Not all states treat refusal as a criminal matter. Some do. ---
**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 14, 2010, 11:29pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/92 "2010-09-14T23:29:34Z")
> [@x-ray\_vision](#): > > > [@](#): > > > > The same thing that would happen if this was not specified as an offense. > > If it weren’t an offense, you couldn’t be charged with anything and there would be no loss of license. Well that one pisses me off too. Stop quibbling over details and get to this kind of important stuff faster. A traffic violation isn’t necessarily a crime, so that’s probably how they get away with it. Maybe one of the lawyers will jump in and give us the legal justification for that jack-booted fascist deprivation of rights. ---
**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 14, 2010, 11:44pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/93 "2010-09-14T23:44:42Z")
> [@Ravenman](#): > > Not all states allow refusal. Some do. We’re talking about states where there are implied consent laws. They don’t allow refusal; that’s why there’s a penalty for refusing. > [@](#): > > As I have said, the laws are different in different states. Way back when, I chose to talk about Texas because they apparently do not treat refusal as a criminal matter – only administrative. > > Not all states allow refusal. Some do. > > Not all states treat refusal as an administrative matter. Some do. > > Not all states treat refusal as a criminal matter. Some do. IANAL, but I don’t believe traffic violations such as being ticketed for going through a red light aren’t treated as criminal matters either. That doesn’t mean “the law protects your option” to go through red light and it doesn’t mean the law protects your option to refuse a breath test, which is a statement you made that I’m still waiting for you to explain. How is an option protected by law if there’s a charge for taking one side of the option? ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 14, 2010, 11:44pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/94 "2010-09-14T23:44:59Z")
Why should we need consent to take a breathalyzer? ---
**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 14, 2010, 11:53pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/95 "2010-09-14T23:53:37Z")
> [@YogSosoth](#): > > Why should we need consent to take a breathalyzer? Illegal search and seizure of our breath. If you don’t have a right to breathe, what good are your other rights? Also, the ^&th amendment, which guarantees our right to privacy. Take my breath awaaaayyyy… ---
**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 15, 2010, 1:08am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/96 "2010-09-15T01:08:08Z")
> [@x-ray\_vision](#): > > That doesn’t mean “the law protects your option” to go through red light and it doesn’t mean the law protects your option to refuse a breath test, which is a statement you made that I’m still waiting for you to explain. How is an option protected by law if there’s a charge for taking one side of the option? Rather than explaining the same thing yet again, let me link to a story from Maryland, which is an implied consent state. [Link.](http://www.marylandduiattorneyblog.com/2008/09/withdrawal_of_refusal_to_conse.html) ---
**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 15, 2010, 1:14am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/97 "2010-09-15T01:14:30Z")
Crap, missed edit window. My point once again is that in many places, including some implied consent states, the police cannot compel you to take a breathalyzer under many circumstances. There may be a penalty for doing so, but ultimately the police ultimately they may not have recourse to physically force you to take the breathalyzer. That is why I say someone has a choice on whether or not to take the test. I really wish you would just acknowledge the point that “requirement” can be used in more than one sense. ---
**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 15, 2010, 1:33am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/98 "2010-09-15T01:33:37Z")
Last point I’m going to make: here’s the Maryland code that allows a police officer to “REQUEST” a **preliminary** breath test before arrest, which specifically states that refusal to take it shall not constitute a violation of the implied consent law: > [@](#): > > § 16-205.2. Preliminary breath test. > > (a) Request by police officer.- A police officer who has reasonable grounds to believe that an individual is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol or while impaired by alcohol may, without making an arrest and prior to the issuance of a citation, request the individual to submit to a preliminary breath test to be administered by the officer using a device approved by the State Toxicologist. > > (b) Advice to person to be tested.- The police officer requesting the preliminary breath test shall advise the person to be tested that neither a refusal to take the test nor the taking of the test shall prevent or require a subsequent chemical test pursuant to § 16-205.1 of this subtitle. > > (c) Use of results of test.- The results of the preliminary breath test shall be used as a guide for the police officer in deciding whether an arrest should be made and may not be used as evidence by the State in any court action. The results of the preliminary breath test may be used as evidence by a defendant in a court action. The taking of or refusal to submit to a preliminary breath test is not admissible in evidence in any court action. Any evidence pertaining to a preliminary breath test may not be used in a civil action. > > \*\*(d) Refusal to take test not violation of § 16-205.1; test under § 16-205.1 not affected.- Refusal to submit to a preliminary breath test shall not constitute a violation of § 16-205.1 of this subtitle and the taking of a preliminary breath test shall not relieve the individual of the obligation to take the test required under § 16-205.1 of this subtitle if requested to do so by the police officer. \*\* Now, once we get past the preliminary test stage, if someone is DETAINED on suspicion of DUI, the Maryland code notes the following: > [@](#): > > (b) No compulsion to take chemical test; consequences of refusal.- > > (1) Except as provided in subsection (c) of this section, **a person may not be compelled to take a test.** However, the detaining officer shall advise the person that, on receipt of a sworn statement from the officer that the person was so charged and refused to take a test, or was tested and the result indicated an alcohol concentration of 0.08 or more, the Administration shall [suspend the license for specified times] The code goes on to state that if a serious accident has occurred, a suspect may NOT refuse to take a chemical test. ---
**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 15, 2010, 2:21am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/99 "2010-09-15T02:21:21Z")
From your link (bolding mine): > [@](#): > > “Implied Consent” Laws > “Implied consent” laws **require** vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year. Still want to claim it’s not a requirement because you can’t be forced to comply, a point I also made earlier? > [@](#): > > Last point I’m going to make: Good. Proving you wrong is getting old. > [@](#): > > here’s the Maryland code that allows a police officer to “REQUEST” a preliminary breath test before arrest, which specifically states that refusal to take it shall not constitute a violation of the implied consent law: It does not “specifically state” that refusal to take it shall not constitute a violation of the implied consent law. It states that it will not be a violation of 16-205.1, which is this: > [@](#): > > § 16-205.1 TRANSP. Suspension or disqualification of driver’s license for > person suspected of driving while under the influence; provisions for > administration of chemical tests; penalties. Guess what it is a violation of? Exactly what you said it wasn’t a violation of, the implied consent law! This is stated in the very Maryland DUI Law web page which you just linked to a few posts back: > [@](#): > > “Implied Consent” Laws > “Implied consent” laws require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year. ---
**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 15, 2010, 2:15pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/100 "2010-09-15T14:15:40Z")
Fair cop. It’s a penalty. [Previous page](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551.md?page=4) [Next page](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551.md?page=6)