Just a WAG, but the site you linked to is just claiming that’s what many attorneys do, not that it’s legal for them to do so. I notice that they are careful not to give that advice themselves and this may be a veiled way of recommending it without actually recommending it.
But Realityland is soooooooo boring
Yeh, but it happens to be what this particular thread is about. It’s your thread-do you want answers based on reality and law, or fantasy and religion?
If taking a breathalyzer test is a choice, something you don’t have to do, but freely chose, and if you fail the breathalyzer test and found legally impaired, which the state also has decided means unable to consent to sex, then the state should also acknowledge that this person was unable to consent to the breathalyzer test and the results should be inadmissible.
So, to recap the current debate on this narrow point, I have provided citations and you have provided Wild Ass Guesses in response.
Nice try. I provided a WAG for one thing. I have also provided citations which you haven’t even bothered responding to.
To answer what I think kanicbird’s clarification asks, in general if you are intoxicated you may not be able to properly consent to a search. I believe the standard is somewhere along the lines of whether your consent is of a rational intellect and free will.
That said, if you are asked to take a breathalyzer, consent to do so and later go to trial, arguing that you were too drunk to consent to the search is probably not going to help you, as your intoxication is what the test is there to prove. Bit of a catch-22 there.
I suppose if the police want to search, say, your house and you consent, but you were totally blotto at the time, you might have something.
Yes I’m challenging if the breathalyzer should be used at all except to test people if they can consent to the test. If they fail they have to take it again as that consent was not valid, lets say in 30 minutes, and repeat until they test unimpaired, in which case they are found not intoxicated and can go home.
By using a driver’s license to drive on the public roads, you consent to taking a breathalyzer test from that day forward. You have already consented to allow the test for any time in the future that the police may find it necessary to apply said test. They don’t have to seek your consent when you are drunk, because you already gave it when you were sober.
Driver’s license not required. By driving on public roads, implied consent attaches, whether you are licensed or not.
Sure, let me respond to those with another citation:
So, the law states that someone may refuse to take the test unless the person has been in a serious accident that involves a serious bodily injury (that’s a brief description of 724.012(b)). In such a case, the person has no ability to refuse the test.
In any other case, according to this bit of law, someone may refuse to take the test.
Correction noted. Of course this means that if you try that “But I’m too drunk to consent!” stunt without a license, you’ll get hit with driving without a license and driving while impaired.
Not according to post # 71
Which will not get a person off of a “driving while impaired” charge, will it?
If the test is inadmissible then it could. It would go to the observations, video and how the jury or judge is able to see if the person should have been driving or not.
As I stated in posts number 33, 38, and 51, by the time a cop asks someone to take the test, there’s a very high likelihood that the cop has already decided someone is impaired, and therefore is very likely to arrest you whether you take the test or not.
In fact, in post 51, I specifically stated that refusing to take the test is NOT a “get out of jail free” card.
I am primarily addressing the concern that one is “required” to take a breathalyzer test if a cop asks you to. In some states, that may be the case. In others, such as Texas, it is clear that you can refuse to take the test, as law protects that decision to do so.
However, doing to may lead to other consequences. But that doesn’t change the fact that in a number of places, someone is fully within their rights to refuse to take the test.
Your comprehension skills are lacking. Nowhere in your citation does it say that someone may refuse to submit. It says that a peace officer can not forcibly take a specimen if someone refuses. You’re still going to get charged with refusal. See the difference?
No. If the law protected your right to refuse, there wouldn’t be a charge for doing so and loss of license would not be a penalty.
That’s what I always thought it meant-if they refuse the test, you don’t force the issue, you just add the “refusal” charge to the list.
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. The law protects your option to refuse to take the test, with the consequence being you lose your license.