Drunk driving -- technicallity to get out of?

Factual Questions
1

I’ve asked this question before, but never really got a satisfactory answer. Oh, and let me preface this by saying that I don’t drink and drive, but am just curious about the legalities of this scenario:

Let’s say you’re drunk and have a bottle of alcohol in your car. You get pulled over (or stopped in a road block or whatever), and you know you’re going to get busted. So, you turn off your car, remove the keys from the ignition, and wait for the officer to come to your window. At this time, you open the bottle of liquor (let’s say it’s a new, sealed bottle) and start drinking in front of the officer. Can you claim during a subsequent DUI test that you didn’t get drunk until after you were pulled over? Assuming the officer told the truth, how could they prove you were drunk prior to getting pulled over?

2

They would have the officer’s testimony that you were driving erratically, and starting a bottle of booze during a traffic stop is definitely not normal behavior. Besides, supposing he does not decide that he can charge you, where are you going to go? You are now on the side of the road, drunk, with an angry cop staring right at you.

3

For what it’s worth, there’s a long-standing rumour that Flann O’Brien, an Irish writer/humorist, used to carry a bottle of whisky in his car for exactly this purpose.

The rumours don’t specify if it was ever actually deployed.

4

They would have no chance of getting away with it.

It takes time for the body to absorb alchohol, just as it takes time for it to dispose of it.

You might have taken a swig of half a bottle of booze, but it will be some time before that concentrates into your bloodstream and urine, an immediate test would therefore still be valid.

In the UK the police operate a system known here as countback.

This usually happens when there has been an RTA and the driver has left the scene.

It isn’t hard for the police to track down the address of a registered vehicle, and with witness descriptions they just go there and test the likely suspect who will say they had a drink or five in the house, urine or blood samples can prove otherwise.They might well have had those drinks, but the alchohol in them most likely will not have been absorbed, and blood alchohol level will come from previously consumed drinks, and monitoring over time can produce a graphical pattern of just how much alchohol your body is disposing of, and will also show the absorption into the body of those recently consumed bevarages as clear proof of your attempt at deception.

Courts take a dim view of drink driving, but a far worse one of leaving the scene of an accident, and even moreso if there is evidence of an attempted cover up.

Countback also works when someone is tested and very near over/under the limit, the police surgeon will determine your journey time, along with your statements, and knowing how long it takes to clear alchohol from your system, can arrive at a figure that the courts will accept as hard evidence.

There was one case where countback actually cleared one chap, he had consumed two drinks at a dinner party and the last part of the meal was a heavily laced sherry trifle.

He was cleared of drink driving because when he was stopped he was just under the limit, police attempted to use countback to say he had much more in his system, however the sherry trifle, being cold, slows down the absorption of alchohol, and he got off.

5

Huh. I wonder why they didn’t do that with the drunk driver that smacked me a while back. They got her for, IIRC, leaving the scene, driving an uninsured vehicle, resisting arrest, and filing a false police report; but they said that she’d gone home and drunk a good half a fifth of whiskey, so they couldn’t verify if or how drunk she was at the time of the accident an hour before … That was 10-12 years ago, though, maybe state-of-the-art has advanced …

6

Re: the “countback” method mentioned –

It was my understanding that, while alcohol takes a little while to be absorbed into the bloodstream, it doesn’t take all that long. It isn’t like food in that it has to be “digested”; it simply absorbs through the stomache lining. I’ve heard it takes something like 10-15 minutes for alcohol to fully absorb into the bloodstream following consumption; assuming you left the scene of an accident, its reasonable that you’d be able to evade the police for at least this long.

That said, even if you claimed this, it seems likely that a court could still convict you of DUI. Getting into an accident and leaving the scene and later being found drunk? No proof, perhaps, but plenty of signs which point to you being drunk at the time. Why would a sober person proceed to get drunk AFTER leaving the scene of an accident, knowing full well that they would shortly be confronted by the police?

7

I believe casdave is dead right. I had an accident about 30 years ago. The car I was driving was written off by another driver outside a hotel. The driver’s door went through my side and I was bleeding all over the place. I went into the hotel and the barman gave me brandy to drink (I don’t know how many). When the police arrived I told them about this but they breath tested me anyway and took blood samples at the hospital and knew that I was OK at the time of the accident.

8

Well, the problem is that if you are behind the wheel and drunk, you are considered to be drunk driving, whether or not the car is running, whether or not there are keys in the ignition, and so on. IIRC, there have been many cases where a person realizes they can’t drive, pulls over, stops the car, falls asleep, and then are arrested later on when a cop checks out the “abandoned” car and finds a drunk person behind the wheel.

Besides, since all cops are basically crooked, he’ll simply deny that he saw you drinking after he pulled you over, and you’ll simply show up drunker on the tests than you actually were.

Also, I recall that carrying an open container is illegal in most states.

So, you’re only shot is to not have a bottle in the first place and talk your way out f the situation. Unfortunately, there’s a slim chance of that if you are actually drunk.

A year ago, I was pulled over for driving without my headlights on (the valet shut them off). Upon questioning, I truthfully admited that I had had one drink five hours before. Well, that was a huge mistake. I was put through about 20 minutes of unnecessary tests before the cops finally agreed that I wasn’t drunk. Idiots.

Since then I’ve been pulled over twice, once for speeding and once at a sobriety checkpoint. Both times I had actually been drinking relatively recently (although I do believe I was under all the limits). But, I lied and said I had not been drinking at all. I was sent on my way both times without a ticket.

Moral: just lie and don’t act nervous about it (i.e., don’t blabber. Just give simple yes/no or one-word answers).

9

As the husband of a police officer, I take EXTREME exception to this statement, and only the fact that this is not the Pit keeps me from characterising your intellect and character in extremely negative terms.

10

A Moral without any sense of irony I see. :rolleyes:

11

Can you cite us one of these many cases in which someone sleeping behind the wheel of a parked car was convicted of operating a vehicle while intoxicated?

12

Oh my God! You’re JOKING, right? You’ve never heard of anyone getting a DUI while asleep in their car?? What planet are you from??

*Banner v. Commonwealth, Department of Transportation, Bureau of Driver Licensing.

In September, 1999, the Pennsylvania Supreme Court issued a ruling in this area. In the case of Banner v. Department of Transportation, a policeman was investigating a suspicious parked car near State Route 130, at 4:30 AM. The officer found Mr. Banner, sleeping in a reclined position in the passenger seat of the car along the roadway. The keys were in the ignition, the engine and lights were turned off.

When the officer tapped on the car window, Mr. Banner awakened and reached for the keys in the ignition. There was no alcohol in the vehicle.

Banner failed a field sobriety test and was arrested for driving under the influence of alcohol. The officer ordered him to take a breath test, and gave him the required warnings, but Banner refused. The Department of Transportation then notified Banner that, as a result of his refusal, his operating privileges would be suspended for one year.

The Pennsylvania Supreme Court ruled that the suspension of operating privileges was not valid. The court asserted that a request for a breath test must be supported by reasonable grounds for the officer to have believed that the individual was operating a vehicle while under the influence of alcohol. Here, there were no such reasonable grounds. The mere presence of an intoxicated person in an automobile is not enough to show that actual physical control over that vehicle.

But in other cases, the court has found that there ARE reasonable grounds for the Banner v. Commonwealth, Department of Transportation, Bureau of Driver Licensing.

In September, 1999, the Pennsylvania Supreme Court issued a ruling in this area. In the case of Banner v. Department of Transportation, a policeman was investigating a suspicious parked car near State Route 130, at 4:30 AM. The officer found Mr. Banner, sleeping in a reclined position in the passenger seat of the car along the roadway. The keys were in the ignition, the engine and lights were turned off.

When the officer tapped on the car window, Mr. Banner awakened and reached for the keys in the ignition. There was no alcohol in the vehicle.

Banner failed a field sobriety test and was arrested for driving under the influence of alcohol. The officer ordered him to take a breath test, and gave him the required warnings, but Banner refused. The Department of Transportation then notified Banner that, as a result of his refusal, his operating privileges would be suspended for one year.

The Pennsylvania Supreme Court ruled that the suspension of operating privileges was not valid. The court asserted that a request for a breath test must be supported by reasonable grounds for the officer to have believed that the individual was operating a vehicle while under the influence of alcohol. Here, there were no such reasonable grounds. The mere presence of an intoxicated person in an automobile is not enough to show that actual physical control over that vehicle. But in other cases, the court has found that there ARE reasonable grounds for the officer to believe that the individual was operating a vehicle while under the influence. In determining when a person has actual physical control over the vehicle, such that a person may be charged with drunk driving, the Pennsylvania courts will look at where the person is seated in the vehicle, and whether the automobile engine is running. In cases where the vehicle occupant was found sleeping behind the wheel and the engine was running, the courts have upheld DUI convictions.*

http://www.familylawyerservice.com/parked.htm
http://www.miami.com/mld/miamiherald/news/local/5177185.htm?template=contentModules/printstory.jsp

13

Hmm. Interesting. After you get done flinging a completely gratuitous insult, you respond to my request for a cite to a case of someone sleeping behind the wheel of a parked car being convicted of operating a vehicle while intoxicated by posting a case in which the defendant’s license suspension was overturned and a news story in which a woman was in a car that was stopped but running.

In case you were wondering, neither of the cases you cited supports the notion that someone sleeping in a parked car has been convicted of DUI. Your first case notes that the PA courts will look at where the person is seated in the car and whether the motor is running. If the motor is running, the car is not parked.

14

I was informed by State Troopers in Georgia that altough it was Officer Discretion, you could be ticketed in your driveway if you were drunk and the keys were in the ignition. Out of the ignition, or out of the car, you were probably okay.

15

The keys, that is, are what is referred to in the last part. :o

16

I disagree with this. There are certainly dishonest cops. There are dishonest (insert any occupation here). Proof? Consider your “moral”… how honest are YOU?

True, and good point.

Also true, and good point.

It was probably not required to mention the drink five hours ago, just as it was not required to mention one the day before. But, having given the officers some reason to think you might be impaired they would be negligent to allow you to drive off without being SURE you were not. You might have been lying about the number of drinks or the time. Don’t be insulted… drunks do lie, and (see next snippet…)

Now, why were you annoyed they didn’t believe you before? You seem to think they were idiots for thinking you might be lying. But you admit you WOULD lie, if caught.

17

I certainly can’t claim to be perfectly honest. Compared to the range of people in the country, I think I fall right in the middle. For example, I won’t make an active effort to steal something (breaking-and-entering, shoplifting, etc), but I will pick up a $5 bill on the street and won’t even look around for an owner. If the clerk at the megastore gives me too much change, I’ll say nothing.

Now, I may have been too harsh when I called all cops dishonest. Instead, I’ll say that they have a code of morals no better than the average citizen. Most seem to have no problem selectively enforcing the law or purposely misleading a suspect. Should we expect better-than-average morals from a cop? Probably.

Yet, he did not say, “Have you had anything to drink in the last three hours?” He said, “Have you had anything to drink this evening?,” without giving a time frame. If I say, “no,” I’m lying. If I say, “Yes” or “Not in the last three hours” or “How long ago does it count?,” you know I’m gonna have to go through the battery of tests.

Probably the thing that pissed me off more than anything is that they didn’t even apologize for the inconvenience or for their immediate assumption that I was lying. It was just, “Check your headlights next time. Drive safely, sir.”

Right. So, the optimum approach is to simply not give them any reason to think so. In other words, give them the answer that will cause the least amount of trouble, no matter what the real situation is.

Note the timing of the events. I started off with the attitude that telling the truth was the best policy and I had always done so when pulled over. But, this time I was punished for it. I’ve learned my lesson and, in the future, will certainly lie to avoid the consequences of telling the truth.

Besides, I’ve seen enough episodes of COPS to know that the cops don’t really approach a situation with an “innocent-until-proven-guilty” theory. They know you’ve done something wrong and it’s their job to figure out what it is. They are looking for any small thing that will give them an excuse to shake you down. On more than one episode, I’ve heard a cop say, “If he had just kept his mouth shut, we would have had to send him on his way with just a ticket. Instead, he’s going to jail.”

And, it may be starting a new thread, but I’ve always wondered about when a cops asks to search your vehicle. If you say “No,” is that immediate grounds for suspicion and will give them probable cause to search your car anyway?

18

IANAL, etc., but no, refusing to consent to a voluntary search of your vehicle does not create probable cause to allow a search. There are a bajillion cases out there on the legality of searching a vehicle, searching different parts of a vehicle, searching passengers in a vehicle, etc. so I’m not going to attempt to offer a synthesis of them. If you’re interested, I know the topic has been discussed before so you can do a search of the archive and if those previous threads don’t answer the question start a new one.

19

No it’s not. You should read Badge’s “Ask the cop” thread here. He talks about all these stereotypes and stories and gives honest answers (You can tell because what he says doesn’t always make the cops look good). This would be a good thread to spend a little time in given your opinions and questions…

20

A friend of mine used to keep several bottles of non-alcoholic beer rolling around in the passenger floorboard, in an attempt to deter police from invoking probable cause during unrelated traffic stops. Don’t know if it ever worked for him.