First thing you do is pull over, throw the keys out the window and move to the passenger seat or backseat (to indicate you are not in control of the car) and immediately begin slugging down some booze before the officer approaches the car. Then, when he asks if you have been drinking the answer is clearly yes, but A: you are not in control of the car, and B: you just started. That is, you claim that you weren’t drinking and driving earlier- that you just started drinking in your backseat (which might not be illegal depending on where you live if you’re not in control of the vehicle).
At that point, would the officer be able to prove you were intoxicated before? I have no doubt you’d probably lose in court, you’d probably be detained and you’d probably “trip” down lots of stair on your way to jail… but would this a way to avoid a DUI?
(BTW, this is just hypothetical, don’t try it, and don’t drive if you’re drunk, ok?)
Nope. He’ll be able to testify that he saw you driving, probably poorly, and whether you displayed other signs of intoxication…slurred speech, staggering, failing the physical tests, etc.
At least in my state, you can be convicted if the officer thinks you were impaired, regardless of the breathalyzer result.
On this hypothetical, you’d likely also pick up a charge for having an open container, public drunkeness, disorderly conduct, whatever traffic violation caused him to pull you over in the first place, and whatever else the officer feels like writing up.
Well, yeah, you’re admitting you were drunk, so of course you’re gonna fail the tests, show signs, etc. You’re not necessarily admitting to being drunk AND driving, saying you only became drunk after pulling over.
But yeah, I have no doubt they’d kick your ass six ways to sunset.
It takes about an hour to become intoxicated (any feeling of intoxication before that is psychological). If you wash your mouth out with water and take a breathalyzer, just after having started to drink, you will pass the test because the alcohol hasn’t processed through your system yet. If you don’t pass, that means you didn’t just start drinking (or you still had alcohol on your palate).
I served on a jury for a DUI trial two years ago, here in Illinois. There were actually two separate DUI charges against the guy: one for failing a blood alcohol test, and one for driving while impaired, according to the judgment of the arresting officer.
So, at least in Illinois, this hypothetical would be no defense, if the officer saw you driving erratically before he pulled you over.
Also, I suspect you might be violating laws against open alcohol containers in a vehicle.
You’ll end up before a judge or a jury. The police officer will appear and testify that he saw you driving in a manner that indicated you were intoxicated and he’ll describe that. He’ll then describe how you leapt into the back seat when you were pulled over, threw your keys away, and began drinking in your car.
You’ll testify that you were just innocently sitting by yourself in your car with no keys out in the middle of nowhere having a drink in your car but with no intent to drive anywhere when the police officer pulled up and started harassing you for no reason.
Whose story do you think the judge or jury is going to find more believable?
This is an old story, and it was once a plot line in the show Picket Fences. It would interfere with the state’s ability to prove how drunk you were. It would not stop them from making your life miserable in every possible way. If you’re a first time offender you would have received some leniency, now they’ll charge you to the max. And when you get to court, there will be MADD observers there to make sure no one gets off with a slap on the wrist, making the judge’s job tougher already, so now he’s not going to show you any mercy. The DA will probably attempt to charge you with obstruction of justice or something like that. And that charge will get dropped, but now your lawyer is going to charge you more. Don’t be surprised if they forget to lock your car at the impound, or lose it.
So why would someone hypothetically do something so stupid? Oh, nevermind, it’s obvious why.
In addition to the advice offered above, don’t forget that the officer likely has a dash-cam that began recording when he activated his lights to pull you over. There will be a video of at least your silhouette throwing the keys out and scooting over in the car to corroborate the officer’s testimony that he saw you driving erratically. Now, you’ll get the original DUI charge, whatever traffic laws you broke (failure to maintain lane, speeding, etc.) and possibly obstruction for lying to the officer. I don’t really think this is an effective way to fight the charge…
In Canada, and I asume in most other jurisdictions, There is the crime of impaired driving. When breathalyzers became available, the new crimes of driving over 0.08 and refusing a breathalyzer were added. So, if the officer testifies that you were driving erratically, they don’t actually need to show your blood level at the time; all you have done is muddy the waters by making it difficult to determine how much of your intoxication was while you were behind the wheel. Nobody is going to buy the story that a car pulled itself over with you in the back, nobody in the front…
Besides, how will you even make the point? The officer will testify nobody got out of the car. You can only (perjure) counter that claim if you take the stand, thus opening yourself up to the entire line of questioning - how long do you claim you had been there, what were you doing up to this point, which bar, how long, let’s call in the bartender, etc. If you piss off the DA and make him have to dig deeper than just the officer’s ticket, plus open yourself up to a perjury charge, well, I hope you can afford all the legal fees. The DUI fine and a year of taxi bills will be cheaper.
This is like the Gordon Lightfoot defense. He was pulled over near Toronto because his headlights were off. They took him to the station, where he blew over .08; the judge bought his lawyer’s excuse, “just because he was over by the time he reached the station, does not mean he was over when he was driving”. This was overturned on appeal, where the court essentially told the trial judge that just because he liked the guy’s music, celebrities do NOT get a get-out-of-jail-free card.
The cameras being installed in police cars these days operate like a television DVR: they record constantly, and when the camera is activated by turning on the lights or manual activation, it starts saving new video plus saves the preceding two minutes. This means that we all get to see the behavior that caused the officer to turn his lights on in the first place (the probable cause for the stop).
Here is what I read from the back of a business card of a “drunk driver” specialty lawyer:
If the officer asks you any questions, you have the ability to say “I will not answer your questions without a lawyer.” If he continues asking questions he is breaking the law and the whole case will be thrown out because nothing said after that can be brought out in the courtroom. And this is whether you have been drinking or not.
If this doesn’t work, you can decline all road tests and ask that you be driven to your hospital of choice for a blood test. And hopefully by then most of it will be out of your system.
Of course either of these is very likely to make the officer very mad.
I think most of you are missing the point of the OP. The hypothetical person in the OP isn’t claiming he wasn’t driving. He’s trying to erase evidence of alcohol consumption by consuming it AFTER being stopped.
In some states it’s illegal to have an open container of alcohol in a parked car on any public roadway, even if you’re not over the legal limit.
IANAL and I have never been stopped for drunk driving or anything like it, but I do know that here in Michigan, there are hefty consequences simply for having an open container in the car, even if the driver is sober and has a drinking passenger. So I’m not sure the hypothetical ruse would work very well. At least not here.
Wrong. The remedy for a Miranda violation is suppression of any statements the defendant made after the request for counsel, not a dismissal of the entire case. Any other evidence–such as video or testimony showing erratic driving, a smell of alcohol, open container, slurred speech, etc remains admissible and may be sufficient to convict of DUI or other traffic offenses.
When I was growing up (rural England) a local guy drove away from drinking all evening in the pub and immediately turned his car over in a ditch. He then staggered to a friend’s house, downed some whisky, and called the cops from there, saying he was in shock and had drunk the whisky to calm his nerves. He got away with it.
The police did not have any witnesses saying he was driving or drivingerratically, so it could have been an ordinary accident. enough time elapsed before the police arived that he could ahve reasonably drunk beyond the limit before the police could test him.
I recall something similar, where a drunk driver killed someone; in that case, it was a police officer, his buddy the chief of the neighbouring town deliberately messed up on the test and evidence, charges were dropped. The inquiry got the testmony of the servers at the restaurant; plus the testimony of the other party-goers at the house afterwards (“I didn’t see anything”, “I don’t remember”, “I was busy fixing the popcorn maker”) and the testimony that the waitresses were told by their boss to deny the cops were drunk. If it’s just DUI, they let it go. If a death is involved, you have a lot more covering up to do.
