# Can You Get a DUI if You Drink After Driving **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [January 24, 2009, 9:26pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829 "2009-01-24T21:26:42Z")\ **Posts on this page:** 19\ **Page:** 1
**Author:** ![wdl71](https://avatars.discourse-cdn.com/v4/letter/w/ccd318/32.png) [@wdl71](https://boards.straightdope.com/u/wdl71)\ **Post date:** [January 24, 2009, 9:26pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/1 "2009-01-24T21:26:42Z")
Don Hanni, a lawyer and politician in Youngstown, OH, got away with a variation of this. Not sure what year, but the police found Hanni in a bar right after his car ran into the Post Office. No DUI but the Post Office put up concrete barriers. ---
**Author:** ![Powers](https://avatars.discourse-cdn.com/v4/letter/p/edb3f5/32.png) [@Powers](https://boards.straightdope.com/u/Powers)\ **Post date:** [January 24, 2009, 9:29pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/2 "2009-01-24T21:29:14Z")
Link: [http://www.straightdope.com/columns/read/2840/can-you-get-out-of-a-dui-conviction-by-chugging-alcohol-after-getting-pulled-over](http://www.straightdope.com/columns/read/2840/can-you-get-out-of-a-dui-conviction-by-chugging-alcohol-after-getting-pulled-over) Cecil encourages his correspondent to “Give it a whirl”. Although he was joking, I’m still disappointed he’d encourage this behavior. Powers &8^] ---
**Author:** ![Twoflower](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/twoflower/32/22_2.png) [@Twoflower](https://boards.straightdope.com/u/Twoflower)\ **Post date:** [January 24, 2009, 9:48pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/3 "2009-01-24T21:48:59Z")
I was once on a jury for a guy who tried to use this defense. Claimed he was so upset after crashing his pickup that he “slammed down a couple of beers” on the spot. We deliberated for maybe 5 minutes before convicting him… ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 24, 2009, 9:57pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/4 "2009-01-24T21:57:22Z")
> [@wdl71](#): > > Don Hanni, a lawyer and politician in Youngstown, OH, got away with a variation of this. Not sure what year, but the police found Hanni in a bar right after his car ran into the Post Office. No DUI but the Post Office put up concrete barriers. Here’s a news story that discusses that case: [http://news.google.com/newspapers?id=aoUNAAAAIBAJ&sjid=NW8DAAAAIBAJ&pg=1844,5904428&dq=don+hanni+post+office](http://news.google.com/newspapers?id=aoUNAAAAIBAJ&sjid=NW8DAAAAIBAJ&pg=1844,5904428&dq=don+hanni+post+office) ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [January 25, 2009, 12:07am UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/5 "2009-01-25T00:07:54Z")
> [@Gfactor](#): > > Here’s a news story that discusses that case: [http://news.google.com/newspapers?id=aoUNAAAAIBAJ&sjid=NW8DAAAAIBAJ&pg=1844,5904428&dq=don+hanni+post+office](http://news.google.com/newspapers?id=aoUNAAAAIBAJ&sjid=NW8DAAAAIBAJ&pg=1844,5904428&dq=don+hanni+post+office) Given the person in question, and the Youngstown area political workings in general, I would say that the result of the “defense” had more to do with the who, than the what happened, “visiting” judge or not. :rolleyes: ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 25, 2009, 5:43am UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/6 "2009-01-25T05:43:19Z")
The key here is time. There are two elements to DWI that have to be proved. 1. Operation: It must be proved that the defendent was the operator of the vehicle. 2. Impairment: It must be proved that the defendent was impaired due to alcohol or drugs at the time of the incident. The scenerio in the column does not negate either of the two elements. Someone who makes his way to a bar and is found sometime later may be able to get the judge or jury to feel there is a reasonable doubt. Each case is different. I have seen people get off by leaving the scene and I have received guilty verdicts against people I have tracked down afterwards. But none of that means that having an “emergency” bottle in your car is going to help. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [January 25, 2009, 7:10am UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/7 "2009-01-25T07:10:43Z")
> [@Twoflower](#): > > I was once on a jury for a guy who tried to use this defense. Claimed he was so upset after crashing his pickup that he “slammed down a couple of beers” on the spot. I’ve seen a prosecutor destroy this argument thusly: Members of the jury, the accident happened at \_ o’clock, and the defendant was given a breath test at \_ o’clock, only \_ minutes later, with a result of .xx alcohol reading. Medical texts will show that given the normal rate of alcohol absorption, his breath test reading could only have increased by .xx during that time. So even if you believe defendant’s story, he would have still had a reading of .xx before ‘slamming down’ those beers, and that reading was already over the legal limit. Thus he was legally impaired already, before he allegedly ‘slammed down a couple of beers’, so you must convict him! ---
**Author:** ![nch20031](https://avatars.discourse-cdn.com/v4/letter/n/9d8465/32.png) [@nch20031](https://boards.straightdope.com/u/nch20031)\ **Post date:** [January 25, 2009, 1:05pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/8 "2009-01-25T13:05:20Z")
In the UK the roadside breath test is only an indicator and a further breath test for use in court is required to be taken at the Police station. If you suspect you maybe slightly over the legal limit for drink driving pretending to take a drink as soon as you are stopped or claiming to have done so would mean the Police would have to wait 15-20 minutes before giving you a roadside test. This may give you enough time to sobber up enough to pass the breath test used for evidence. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 25, 2009, 2:23pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/9 "2009-01-25T14:23:55Z")
> [@nch20031](#): > > In the UK the roadside breath test is only an indicator and a further breath test for use in court is required to be taken at the Police station. If you suspect you maybe slightly over the legal limit for drink driving pretending to take a drink as soon as you are stopped or claiming to have done so would mean the Police would have to wait 15-20 minutes before giving you a roadside test. This may give you enough time to sobber up enough to pass the breath test used for evidence. As I posted in the other thread that you posted to: > [@](#): > > Feel free to use this tactic. It won’t work. Alcohol is processed by the body at an average of .015% BAC per hour. I don’t know what the limit is in the UK but in the states it is .08% BAC (from reading articles linked in FARK I think it is the same). Waiting 20 minutes means that the BAC will drop around .005%. Waiting 20 minutes is not going to significantly sober anyone up . Maybe a very small percentage of people are right on the edge but there is no way to know it. If you had just taken a drink prior to driving your body may not have absorbed the alcohol yet and your level may actually be going up. > > It is different from state to state but where I work roadside breath tests are not required and can be used as only one part of probable cause for an arrest. All that needs to be shown is impairment. The observation of the officer (which is now usually caught on tape) is enough. After the arrest when the suspect is brought in it is required to wait 20 minutes before the test. The suspect is under constant observation during that time. This is to ensure that no other substances were in the mouth for that long. It has been proven by smarter people than me that 20 minutes is enough time to ensure a clean test. Our machines require that the time of arrest be entered and they won’t even allow a sample to be taken until the 20 minutes is up. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [January 25, 2009, 8:41pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/10 "2009-01-25T20:41:14Z")
I saw a girl smack into another car at a red light. She ran into a close bar and ordered a couple doubles which she poured out. She told the cop she was so upset at harming her new car that she needed a drink. The bar tender gave a statement that she had a couple stiff drinks. She was a lawyer. I do not know if she got away with it. She was also very pretty. She had everything going for her. ---
**Author:** ![Asimovian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asimovian/32/172_2.png) [@Asimovian](https://boards.straightdope.com/u/Asimovian)\ **Post date:** [January 25, 2009, 10:42pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/11 "2009-01-25T22:42:22Z")
> [@gonzomax](#): > > I saw a girl smack into another car at a red light. She ran into a close bar and ordered a couple doubles which she poured out. She told the cop she was so upset at harming her new car that she needed a drink. The bar tender gave a statement that she had a couple stiff drinks. She was a lawyer. I do not know if she got away with it. She was also very pretty. She had everything going for her. You witnessed this? How did you get all of the details about what she drank and what she did with it? And did you report what you witnessed to the cops? ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [January 26, 2009, 1:09am UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/12 "2009-01-26T01:09:10Z")
> [@t-bonham@scc.net](#): > > I’ve seen a prosecutor destroy this argument thusly: > Members of the jury, the accident happened at \_ o’clock, and the defendant was given a breath test at \_ o’clock, only \_ minutes later, with a result of .xx alcohol reading. > > Medical texts will show that given the normal rate of alcohol absorption, his breath test reading could only have increased by .xx during that time. So even if you believe defendant’s story, he would have still had a reading of .xx before ‘slamming down’ those beers, and that reading was already over the legal limit. Thus he was legally impaired already, before he allegedly ‘slammed down a couple of beers’, so you must convict him! I’m thinking emptying out a container with a lethal amount of hard liquor in it would make the prosecutor’s argument a little bit weaker. Of course, so would using an alcohol enema, but I ain’t trying that one… ---
**Author:** ![Alex\_Dubinsky](https://avatars.discourse-cdn.com/v4/letter/a/dbc845/32.png) [@Alex\_Dubinsky](https://boards.straightdope.com/u/Alex_Dubinsky)\ **Post date:** [January 26, 2009, 4:20am UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/13 "2009-01-26T04:20:36Z")
Isn’t the deal that the breathalyzer gives a wrong BAC reading if you just had liquor in your mouth? It could spike to inhuman levels. That’s a bit different argument from what Cecil painted. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 26, 2009, 6:26am UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/14 "2009-01-26T06:26:59Z")
> [@Alex\_Dubinsky](#): > > Isn’t the deal that the breathalyzer gives a wrong BAC reading if you just had liquor in your mouth? It could spike to inhuman levels. That’s a bit different argument from what Cecil painted. That is the purpose of the 20 minute wait period. Any alcohol in the mouth will be gone in less than 20 minutes. The breath test is given after 20 minutes. Probable cause for an arrest is due to observation of impairment. If you are in a jurisdiction that uses roadside breath tests I would bet that it is only used as one element in determining probable cause. Of course the laws in each state differ to some degree and I do not have knowledge of each one. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [January 26, 2009, 3:04pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/15 "2009-01-26T15:04:19Z")
> [@Asimovian](#): > > You witnessed this? How did you get all of the details about what she drank and what she did with it? And did you report what you witnessed to the cops? I lived 1 block from the bar and talked to the bartender a couple days later. ---
**Author:** ![Wheelz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wheelz/32/5718_2.png) [@Wheelz](https://boards.straightdope.com/u/Wheelz)\ **Post date:** [January 26, 2009, 3:24pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/16 "2009-01-26T15:24:09Z")
> [@gonzomax](#): > > I lived 1 block from the bar and talked to the bartender a couple days later. So this bartender told _you_ she poured out the drinks but told the _cops_ she drank them? Hmmm… ---
**Author:** ![kk\_fusion](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kk_fusion/32/15276_2.png) [@kk\_fusion](https://boards.straightdope.com/u/kk_fusion)\ **Post date:** [January 27, 2009, 8:58am UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/17 "2009-01-27T08:58:00Z")
In Germany, while you interact with the police, or wait at the site of an accident, you are participating in motorized traffic. This is precisely so that any attempt of covering your DUI by drinking _after_ driving is made pointless. ---
**Author:** ![johnspartan](https://avatars.discourse-cdn.com/v4/letter/j/a183cd/32.png) [@johnspartan](https://boards.straightdope.com/u/johnspartan)\ **Post date:** [February 4, 2009, 8:14pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/18 "2009-02-04T20:14:56Z")
What about the delayed effect of alcohol? There’s a certain amount of time between consumption and when the alcohol enters the blood stream — a bit more time between entering the bloodstream and impairment… could you argue that while you were intoxicated when you were tested, you were not yet under the influence when driving? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 4, 2009, 8:39pm UTC](https://boards.straightdope.com/t/can-you-get-a-dui-if-you-drink-after-driving/482829/19 "2009-02-04T20:39:53Z")
> [@johnspartan](#): > > What about the delayed effect of alcohol? There’s a certain amount of time between consumption and when the alcohol enters the blood stream — a bit more time between entering the bloodstream and impairment… > > could you argue that while you were intoxicated when you were tested, you were not yet under the influence when driving? That’s sometimes called the “big gulp” defense. It works in some jurisdictions, but not in others. Alaska, for example, revised it’s statute to exclude the defense: > [@](#): > > (s) In a prosecution under (a) of this section, a person may introduce evidence on the amount of alcohol consumed before or after operating or driving the motor vehicle, aircraft, or watercraft to rebut or explain the results of a chemical test, **but the consumption of alcohol before operating or driving may not be used as a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving.** Consumption of alcohol after operating or driving the motor vehicle, aircraft, or watercraft may be used to raise such a defense. [Law Library - Alaska Court System](http://touchngo.com/lglcntr/akstats/Statutes/Title28/Chapter35/Section030.htm) (Emphasis added.)