# 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:** 13\ **Page:** 6
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 15, 2010, 3:19pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/101 "2010-09-15T15:19:12Z")
> [@TriPolar](#): > > 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… You have the right to breathe, just into this tube. If the cop has reason to think you’re drunk, I don’t think you should be able to refuse a breathalyzer and not go to jail. Fight the results in court, claim you just gargled with Listerine, but at the moment of the traffic stop his only concern is to make sure you’re not going to kill anyone with your car. A breathalyzer is a small sacrifice ---
**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 15, 2010, 4:08pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/102 "2010-09-15T16:08:36Z")
> [@YogSosoth](#): > > > [@TriPolar](#): > > > > 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… > > You have the right to breathe, just into this tube. If the cop has reason to think you’re drunk, I don’t think you should be able to refuse a breathalyzer and not go to jail. > > Fight the results in court, claim you just gargled with Listerine, but at the moment of the traffic stop his only concern is to make sure you’re not going to kill anyone with your car. A breathalyzer is a small sacrifice I disagree. Then you could make a law that makes it a crime to refuse a search or your car, your home or anything else. I’ve already agreed to forfeit my license if I refuse a breathalyzer test, but the case I referred to was being charged with a crime for that refusal (if that is the law). ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [September 15, 2010, 4:27pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/103 "2010-09-15T16:27:32Z")
> [@YogSosoth](#): > > Fight the results in court, claim you just gargled with Listerine, but at the moment of the traffic stop his only concern is to make sure you’re not going to kill anyone with your car. A breathalyzer is a small sacrifice You are not required to take a breathalyzer until after you have been arrested. ---
**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, 5:08pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/104 "2010-09-15T17:08:20Z")
> [@TriPolar](#): > > I disagree. Then you could make a law that makes it a crime to refuse a search or your car, your home or anything else. You’ve already consented by getting a driver’s license; it’s too late to lawfully refuse to perform a breath test by an officer with probable cause. They will charge you for refusal and in some cases forcibly take your blood. From the Wikipedi article on implied consent: > [@](#): > > Most U.S. states have driver licensing laws which state that a licensed driver has given his implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration. These laws have generally been upheld by courts as a valid exercise of the states’ police power, against challenges under the Fourth Amendment (as a reasonable search and seizure) and Fifth Amendment (as not violative of the right against self-incrimination). This is largely because in the United States, driving is considered a privilege rather than a right, and the state has a legitimate interest in keeping dangerously intoxicated drivers off the road, to prevent injury, property damage, and loss of life. In most states, however, the police must have reasonable grounds for administering a sobriety test. > **[Implied consent](https://en.wikipedia.org/wiki/Implied_consent)** > > Implied consent is consent which is not expressly granted by a person, but rather implicitly granted by a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). For example, if a person is unconscious as a result of injuries sustained during a traffic collision, medical treatment may be provided to that person, despite the unconscious person being unable to expressly grant consent for that treatment. > All U.S. states have... > [@](#): > > I’ve already agreed to forfeit my license if I refuse a breathalyzer test, but the case I referred to was being charged with a crime for that refusal (if that is the law). Implied consent does not mean you’ve agreed to forfeit your license. See above. > [@Fear\_Itself](#): > > > [@YogSosoth](#): > > > > You are not required to take a breathalyzer until after you have been arrested. Laws vary from state to state, but I haven’t seen anything yet that says you have to get arrested for the requirement to exist. I doubt that’s true. ---
**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, 6:06pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/105 "2010-09-15T18:06:52Z")
> [@Fear\_Itself](#): > > You are not required to take a breathalyzer until after you have been arrested. I found the following regarding NY laws: > [@](#): > > We represent many clients who are charged with driving while intoxicated and a refusal to take a chemical test. Many of these clients were charged with a refusal since they did not understand the difference between 1) what is known as a “Breath Screening Test” (BST), which is used at the scene of an arrest, and is often called an “Alco Sensor”, and 2) the breathalyzer test or other chemical test which the arresting officer requests that the client undergo once they have been placed under arrest and taken to the precinct. > > Simply put, the breath screening test is an unscientific test which the officer requests that the client take in order to have probable cause to make the DWI arrest. However, this test, since it is not scientific, is not admissible in Court. Thus, the arresting officer will request that the client take a breathalyzer, or other chemical test of blood, urine or saliva, at the precinct, which is admissible in Court and forms the evidentiary basis for proving a DWI case in Court. Of course, the officer never explains the distinction between the non admissible BST that the client took at the scene, as opposed to the scientific and admissible Breathalyzer which the client is requested to take at the precinct. > > Inevitably, and to the client’s dismay and surprise, when the client responds to the request: “Will you agree to take a chemical test of your breath at this time?” with an “I already took the breathalyzer earlier”, the officer never explains the distinction between the tests–and thereafter, when the client does not take the breathalyzer thinking they have already done so, they are charged with a refusal. > **[New York DWI–Breath Screening Test Not A Chemical Test](https://www.newyorkdwilawyerblog.com/new_york_dwibreath_screening_t/)** > > We represent many clients who are charged with driving while intoxicated and a refusal to take a chemical test. Many of these clients were charged with a refusal since they did not understand the ... > [@](#): > > WHAT WILL HAPPEN TO ME IF I AM STOPPED BY THE POLICE? > A If you are stopped by a police officer who believes you are under the influence of alcohol or drugs, you may be required to take a “field sobriety test” which may include a breath-screening test for the presence of alcohol. If you are arrested, you will be asked to take a “chemical test” for BAC. You may also be fingerprinted. Driving While Intoxicated (DWI) is a crime. If you are convicted, you will face a substantial fine, a mandatory surcharge, license revocation, higher insurance premiums, and a possible jail sentence. [http://www.nydmv.state.ny.us/broch/c39.htm](http://www.nydmv.state.ny.us/broch/c39.htm) So it seems in NY you are no required to take a breathalyzer until after you are arrested, but you are required to take a breath test from a device called an Alco Sensor. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 15, 2010, 7:48pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/106 "2010-09-15T19:48:59Z")
> [@TriPolar](#): > > I disagree. Then you could make a law that makes it a crime to refuse a search or your car, your home or anything else. I’ve already agreed to forfeit my license if I refuse a breathalyzer test, but the case I referred to was being charged with a crime for that refusal (if that is the law). Must you go down the slippery slope? Why can’t we simply make a law stating that you have to submit to a breathalyzer whenever a cop can reasonably suspect you may be drunk and then stop it at that? ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [September 15, 2010, 8:44pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/107 "2010-09-15T20:44:36Z")
> [@x-ray\_vision](#): > > Laws vary from state to state, but I haven’t seen anything yet that says you have to get arrested for the requirement to exist. I doubt that’s true. The Evidentiary Preliminary Alcohol Screening Test is [voluntary in California](http://www.californiaduiguide.com/California-DUI-Law/Chemical-Testing-for-DUI.aspx): > [@](#): > > [California DUI laws](http://boards.straightdope.com/sdmb/California-DUI-Law.aspx) require chemical breath testing following an arrest for driving under the influence, however you are not required to take a breath test prior to being arrested unless you are under the age of 21. I don’t know the law in all states, but in most states, the EPAS is voluntary. ---
**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 15, 2010, 10:05pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/108 "2010-09-15T22:05:59Z")
> [@YogSosoth](#): > > > [@TriPolar](#): > > > > I disagree. Then you could make a law that makes it a crime to refuse a search or your car, your home or anything else. I’ve already agreed to forfeit my license if I refuse a breathalyzer test, but the case I referred to was being charged with a crime for that refusal (if that is the law). > > Must you go down the slippery slope? Why can’t we simply make a law stating that you have to submit to a breathalyzer whenever a cop can reasonably suspect you may be drunk and then stop it at that? Because there is no being drunk exception in the Constitution. Which is the place to make those exceptions. ---
**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 16, 2010, 2:50am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/109 "2010-09-16T02:50:49Z")
> [@TriPolar](#): > > Because there is no being drunk exception in the Constitution. Which is the place to make those exceptions. How do you feel about one being charged for refusal/failure to provide an officer with license and registration upon request? Do you find that unconstitutional also? ---
**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 16, 2010, 3:54am UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/110 "2010-09-16T03:54:45Z")
> [@x-ray\_vision](#): > > How do you feel about one being charged for refusal/failure to provide an officer with license and registration upon request? Do you find that unconstitutional also? It’s not exactly the same thing. I don’t see how my license or registration could be used to incriminate me, and I’m not sure how the court cases regarding providing ID have been decided. It is kind of silly regarding a registration because that can be determined based on the state’s records using the car’s VIN number, even if it doesn’t have plates. It would certainly be bizarre if the penalty for failure to provide license and/or registration exceeded the penalty for not having them. So the answer is, I don’t know. I have noticed the way the various laws and statements regarding court decisions post here use some tortured definitions. I understand driving is a privilige, not a right. But once you are pulled over for probable cause, and can be detained and have your license suspended by prior agreement, I don’t really see how these refusals would be crimes. You certainly no longer present a danger to the public, until the police let you go, which they will do before too long anyway. The people I know who have been charged with DUI presented the police with considerable cause, and evidence. Their court cases concentrated on minimizing the penalties following a guilty plea. I don’t see myself having to face these circumstances, but should I find myself in such a situation, I wouldn’t refuse anyway. It is a matter of principle as well as principal. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 16, 2010, 3:22pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/111 "2010-09-16T15:22:03Z")
> [@TriPolar](#): > > > [@YogSosoth](#): > > > > Must you go down the slippery slope? Why can’t we simply make a law stating that you have to submit to a breathalyzer whenever a cop can reasonably suspect you may be drunk and then stop it at that? > > Because there is no being drunk exception in the Constitution. Which is the place to make those exceptions. The legal power to compel a person to provide a breath sample should come from the same place that allows cops to ask you for your license or simply to just stop when they flash the lights. ---
**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 16, 2010, 6:39pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/112 "2010-09-16T18:39:08Z")
> [@YogSosoth](#): > > > [@TriPolar](#): > > > > Because there is no being drunk exception in the Constitution. Which is the place to make those exceptions. > > The legal power to compel a person to provide a breath sample should come from the same place that allows cops to ask you for your license or simply to just stop when they flash the lights. What place would that be? ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 16, 2010, 6:45pm UTC](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551/113 "2010-09-16T18:45:25Z")
I’m no lawyer, but wherever the power to ask for licenses come from. Or the place where they say “Freeze” and you have to do it or they’ll shoot you. [Previous page](https://boards.straightdope.com/t/breathalyzer-test-challenge/553551.md?page=5)