Drunk driving hypothetical

[Noel_Prosequi]

In my jurisdiction, the problem is solved by a deeming provision that says that the test result (blood, breath, whatever) is deemed to be accurate for the previous two hours from when it was taken. The driving is usually within this window. This is to the advantage of offenders in most cases because the result two hours later is likely to be less than it was at the time of driving.

If, however, you try to defeat the system by drinking after driving, you actually make things worse for yourself.

[Max_Torque]

Another thing to ponder: even if you refuse all tests, the police can and will if necessary procure a search warrant to obtain a blood sample. In Texas, at least, the person performing the blood draw, and the facility where he works, are not liable for any damages, even if you fight and flail. It’s also in the law right now that, if the officer has reason to believe that you’ve been convicted twice before for DWI, or even once for DWI with a child passenger (or if you’re being arrested for DWI with a child passenger this time), a warrant isn’t even necessary to take your blood.

Incidentally, they can also take your blood without a warrant if you were in an accident and any other person was injured and transported to a hospital. And, if you’re in the hospital and unconscious, you are deemed to have consented to the blood draw. And finally, if your blood draw shows a BAC of 0.25, no jury is going to believe that you got there from the little bit you managed to toss down in the back seat.

[lawbuff]

@Sister_Vigilante

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.

I will assume that is a general statement on the lawyer’s part to solicit business.

The routine questioning of a detained motorist is not “custodial” for purposes of Miranda, at least under the federal constitution, Berkemer v. McCarty, US SC.

Additionally after McCarty, Pennsylvania v. Bruder was handed down concering the questioning of a DUI suspect and if it was custodial for purposes of miranda, the court answered that in the negative.

Police can only detain you long enough to complete the purpose of the stop.

“If he continues asking questions”… as the lawyer said, it “may” become an UNreasonable seizure, fact dependent, however, the remedy is not a dismissal. Sure, a Judge is basically free to do what s/he wants, but that does not mean it is defacto legal.

[lawbuff]

@Beast_Model

A hypothetical:

Say, for example, you’re being pulled over.

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?

If YOU were the only person in the car when it is pulled over and tests show PC to arrested for DUI, your facts are without legal merit.

[Lazlo]

In some states, like NM, refusing to take the BAC test really fucks you.

Implied Consent.