# Generally speaking, can I insist on a breathalyzer? **URL:** \ **Category:** Factual Questions\ **Created:** [July 19, 2009, 12:58am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494 "2009-07-19T00:58:14Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 20, 2009, 7:43pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/21 "2009-07-20T19:43:59Z")
> [@Martin\_Hyde](#): > > If you’ve been asked to do a field sobriety test you need to mentally process the simple fact that you **will** be going to jail. Nothing you do can stop it at this point–for some reason the police officer believes you are drunk, and when a police officer believes you are drunk they’re sending you to jail, period. Wow, what? Are you exaggerating, or is this really the standard method, to put drink drivers into jail, instead of simply taking their license??? ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [July 20, 2009, 8:46pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/22 "2009-07-20T20:46:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > … and gives you an extra ~1 hour or so to sober up a bit. That helps how exactly? I’ve seen multiple trials (CourtTV) where forensic experts testified that a BAC of D, T time after the arrest means, based on known rates of alcohol absorption and metabolism (and often the defendant’s testimony as to when and what they were drinking and at what time they stopped drinking), the defendant’s BAC was D +/-X(+/- x) at the time of arrest. This with BACs taken much more than ~1 hour later. Convictions ensued. Add to that that if you get arrested shortly after you’ve stopped drinking your BAC can/will go up during that ~1 hour! None of this isn’t well known by the folks prosecuting you. Ideally I’d want multiple bloods drawn to show how fast I was absorbing/metabolizing, and get rid of the “(+/- x)” from my extrapolated BAC. CMC fnord! ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 20, 2009, 8:49pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/23 "2009-07-20T20:49:44Z")
> [@constanze](#): > > Wow, what? Are you exaggerating, or is this really the standard method, to put drink drivers into jail, instead of simply taking their license??? Well, yes. It’s a crime. Most first-time offenders don’t actually serve a prison term, but they do spend a night in the local jail. > [@crowmanyclouds](#): > > That helps how exactly? It may not, depending on when you stopped drinking, of course - but if you had three beers, and then waited two hours, it would be the difference between a 0.8 and 0.5. ---
**Author:** ![TBG](https://avatars.discourse-cdn.com/v4/letter/t/c89c15/32.png) [@TBG](https://boards.straightdope.com/u/TBG)\ **Post date:** [July 20, 2009, 9:21pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/24 "2009-07-20T21:21:59Z")
> [@Balthisar](#): > > Do you have a cite for Michigan? It was my understanding that our “implied consent” law made refusal of a breath unlawful (or otherwise incurring a penalty). This portion of MCL257.625a seems to disagree with him and agree with you (and what they taught us in Driver’s Training) > [@](#): > > (d) Except as provided in subsection (5), a person who refuses to submit to a preliminary chemical breath analysis upon a lawful request by a peace officer is responsible for a civil infraction. > > … > > (4) A person who was operating a commercial motor vehicle and who is requested to submit to a preliminary chemical breath analysis under this section shall be advised that refusing a peace officer’s request to take a test described in this section is a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, or both, and will result in the issuance of a 24-hour out-of-service order. > (5) A person who was operating a commercial motor vehicle and who refuses to submit to a preliminary chemical breath analysis upon a peace officer’s lawful request is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, or both. The site I found the law on had some audio crap pop up when I went there, so I won’t link, but I’m sure it can be found elsewhere if anyone is really interested. ---
**Author:** ![Chessic\_Sense](https://avatars.discourse-cdn.com/v4/letter/c/7c8e57/32.png) [@Chessic\_Sense](https://boards.straightdope.com/u/Chessic_Sense)\ **Post date:** [July 20, 2009, 9:31pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/25 "2009-07-20T21:31:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > a 0.8 and 0.5. You’d better hope they don’t pull you out of the car and ask you where the decimal goes in a BAC. 50% of sober people would fail that test. ---
**Author:** ![sweeteviljesus](https://avatars.discourse-cdn.com/v4/letter/s/898d66/32.png) [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)\ **Post date:** [July 20, 2009, 9:52pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/26 "2009-07-20T21:52:05Z")
> [@Gfactor](#): > > Here’s a case affirming a conviction: [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=or&vol=A128097&invol=1](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=or&vol=A128097&invol=1) (defendant refused field sobriety test, was arrested, and later refused breathalyzer, evidence of refusals was admissible). > > And a case discussing the constitutional implications of field sobriety tests: [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=app\96-0474&invol=2](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=app%5C96-0474&invol=2) Is one’s refusal to provide evidence against oneself admissible in other matters? ---
**Author:** ![Thalion](https://avatars.discourse-cdn.com/v4/letter/t/f475e1/32.png) [@Thalion](https://boards.straightdope.com/u/Thalion)\ **Post date:** [July 21, 2009, 12:05am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/27 "2009-07-21T00:05:13Z")
As always, these things vary by law. FYI, I’ve been a cop for over 20 years in Washington state. What I’m posting only applies in Washington. You do not have to submit to any field sobriety tests. These are used to develop probable cause to arrest you, and they will be used against you in court if you fail. I actually have great faith in the field sobriety tests. I’ve administered them hundreds of times, and by the time I’m done I can give a pretty good estimate of your BAC. If you’re not drunk, I will be able to determine that and I will send you on your way. I’ve released many people that I thought might be drunk but the tests proved otherwise. If I were to stop you and you refuse to take the tests, I would have to have other objective observations to give me probable cause to arrest you and take you in for the evidentiary test (here we use the BAC Datamaster machines, and there’s one at pretty much every police station and jail). These may be your driving, slurred speech, odor of intoxicants, bloodshot and watery eyes, fumbling when getting your driver’s license and registration, etc. If I have enough of those, I would still make an arrest even without the tests. However, if you are on the borderline of being intoxicated, I may not have enough of those to make an arrest. Then I would try to convince you to take a ride home or let someoen else drive (if I suspected, but couldn’t prove, that you were drunk). ---
**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:** [July 21, 2009, 1:18am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/28 "2009-07-21T01:18:06Z")
> [@Washoe](#): > > I’ve thought about this a zillion times. The vestibular apparatus on the right side of my head was completely destroyed by childhood meningitis. I don’t drive drunk, either—period. I’ve always wondered what I would do if Mr. High-school-diploma-with-a-badge demands that I stand on one foot while juggling three bowling pins. I eagerly await some knowledgeable input on the subject. On my department we have many officers with bachelor degrees. At least 5 with masters and one with a phd. What is your point? Or do you just like to seem superior? > [@Martin\_Hyde](#): > > A police officer only uses a field sobriety test when he already thinks you are drunk. You are doing nothing but help build a case against you when you submit to any roadside test. The results of the roadside tests become part of your arrest record and because courts tend to believe officers of the law, it is bad to have failed either of them. Total bullshit. I have let multiple people go when they passed the sobriety tests. Those that have failed all had one thing in common, they were all legally intoxicated. I have no incentive to arrest someone that is not drunk. It is a hell of a lot of work to write up a DWI arrest. Probably more than for a murder. No way in hell I want to go through that just so the case can be thrown out. > [@](#): > > Do you have a cite for Michigan? It was my understanding that our “implied consent” law made refusal of a breath unlawful (or otherwise incurring a penalty). What I don’t know is whether this implies to portable units or station units (in fact, I didn’t know there were even such things as “official” station units). Where I work we do not have portable units. They are just starting to use them in NJ for field tests. In most states that I have heard about the field units are used for probable cause. The units at the station are official and can be used for a per se finding in court. The field units can not. You will be charged with refusal for not blowing into the official unit at the station or wherever but not the field unit. But I would make sure about your particular state before taking my word for it. I know it is the true in NJ. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 21, 2009, 1:20am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/29 "2009-07-21T01:20:26Z")
> [@Loach](#): > > On my department we have many officers with bachelor degrees. At least 5 with masters and one with a phd. What is your point? Or do you just like to seem superior? I think he’s talking about highway patrolmen, who do not, as a general rule, need a degree. ---
**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:** [July 21, 2009, 1:27am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/30 "2009-07-21T01:27:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I think he’s talking about highway patrolmen, who do not, as a general rule, need a degree. Wrong. Our state police are required to have bachelor degrees. You can’t tell me that saying “Mr. High-school-diploma-with-a-badge” was supposed to be a piece of factual information. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 21, 2009, 1:39am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/31 "2009-07-21T01:39:40Z")
> [@Loach](#): > > Wrong. Our state police are required to have bachelor degrees. You can’t tell me that saying “Mr. High-school-diploma-with-a-badge” was supposed to be a piece of factual information. Not with a straight face, no. Ours [aren’t](http://beatrooper.com/Requirements.htm), by the way. I thought that was pretty much universal. ---
**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:** [July 21, 2009, 2:06am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/32 "2009-07-21T02:06:50Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Not with a straight face, no. > > Ours [aren’t](http://beatrooper.com/Requirements.htm), by the way. I thought that was pretty much universal. It is not universal. It changes greatly from department to department and sometimes from testing period to testing period. But even if it is not a requirement you can not assume that the officers have the minimum education level. One of the guys I work with frequently has a MBA. He decided on a career change when he didn’t like the corporate world. ---
**Author:** ![Washoe](https://avatars.discourse-cdn.com/v4/letter/w/ecae2f/32.png) [@Washoe](https://boards.straightdope.com/u/Washoe)\ **Post date:** [July 21, 2009, 7:52am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/33 "2009-07-21T07:52:08Z")
Stop quibbling. It was a cheap shot and completely out of line, and I apologize. Here in my city they’ll hire anybody with a pulse, mostly due to some glad-handing on the part of the city council that stretches back over twenty years. However, I’m fully aware that that is not necessarily true everywhere, and moreover, generally isn’t true. My sister and her ex-husband both are/have been LEO’s, and they have two BA’s between the two of them. I’m sorry I slapped anybody in the face with my broad brush. ---
**Author:** ![elmwood](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/elmwood/32/3060_2.png) [@elmwood](https://boards.straightdope.com/u/elmwood)\ **Post date:** [July 21, 2009, 11:12pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/34 "2009-07-21T23:12:24Z")
> [@Una\_Persson](#): > > It occurred to me as I was watching _Cops_ tonight, however, that even with the balance improvements I’ve had as a result of my “martial arts” training, that I probably would have difficultly doing the stupid-assed stunts the cops have you do One of the things I’ve tried to do that is nearly impossible - say the alphabet backwards. I just don’t know it in that order, so I have to recite a portion of the alphabet to myself to find the previous letter. My brain is thinking something like this … **Z** **Y** **X** uhhh … q r s t u v w x **W** q r s t u v w **V** uhhh … q r s t u v **U** Counting down from 100, 1000 or 1,000,000? No problem. Pi to 15 digits? Sure. All the states and Canadian provinces? Absolutely. Alphabet backwards? No fcuking way. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [July 21, 2009, 11:26pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/35 "2009-07-21T23:26:33Z")
> [@elmwood](#): > > One of the things I’ve tried to do that is nearly impossible - say the alphabet backwards. I just don’t know it in that order, so I have to recite a portion of the alphabet to myself to find the previous letter. My brain is thinking something like this … > > **Z** **Y** **X** uhhh … q r s t u v w x **W** q r s t u v w **V** uhhh … q r s t u v **U** > > Counting down from 100, 1000 or 1,000,000? No problem. Pi to 15 digits? Sure. All the states and Canadian provinces? Absolutely. Alphabet backwards? No fcuking way. That’s not typically used anymore (I probably couldn’t do it either). Most law enforcement agencies now use the Standardized Field Sobriety Test (SFST) developed by the National Highway Traffic Safety Administration, which are the One Leg Stand, the Walk and Turn, and the Horizontal Gaze Nystagmus, or HGN. They’ll usually only deviate from the SFST and give an alternate test if a subject has a physical impairment that prevents them from doing one or more portion of the SFST. ---
**Author:** ![ashman165](https://avatars.discourse-cdn.com/v4/letter/a/8e8cbc/32.png) [@ashman165](https://boards.straightdope.com/u/ashman165)\ **Post date:** [July 21, 2009, 11:48pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/36 "2009-07-21T23:48:09Z")
> [@Una\_Persson](#): > > I don’t drive drunk. Period. > > It occurred to me as I was watching _Cops_ tonight, however, that even with the balance improvements I’ve had as a result of my “martial arts” training, that I probably would have difficultly doing the stupid-assed stunts the cops have you do (which seem to be different for every single jurisdiction and cop) - you know, “stand on one leg and count to 30” or “breakdance for me while reciting the Lord’s Prayer in Greek.” Do I generally have the right to say “I have balance problems, I _demand_ you give me a breathalyzer and end this foolishness?” Or would that be used as an excuse to arrest me because I refused to obey their Lord of the Dance routine? I’ve searched the law in my State (Kansas) and not being a lawyer or not doing the right searches, I’ll be damned if I can figure it out. > > Edited to add: I wonder if I could do the same thing at the random “sobriety checkpoints” - that is, say “just give me the breathalyzer so we have no doubt?” In all states, a test of the alcohol content of your blood via blood, breath or urine is required\* to charge you with the crime. The threshold for arrest is much lower. However, every state law I’ve read says you’re entitled to your own independent test, but at your own cost. So, you can insist on it, but that pretty much requires you be arrested. It’s best just to refuse the “standardized field sobriety tests”\*\* which forces the officer to make his decision to arrest or not only on what he’s observed up to that point. \*or a refusal to submit to such a test. \*\* these tests are “validated” by the National Highway Transit Safety Administration through tests and statistical correlations. They’re more technically, and properly, referred to as psychophysical tests because they are meant to replicate driving conditions such that your attention is divided between two tasks. Of course, the exception there is Horizontal Gaze Nystagmus test, which has its own infirmities. ---
**Author:** ![Drunky\_Smurf](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drunky_smurf/32/449_2.png) [@Drunky\_Smurf](https://boards.straightdope.com/u/Drunky_Smurf)\ **Post date:** [July 22, 2009, 3:14pm UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/37 "2009-07-22T15:14:03Z")
> [@Martin\_Hyde](#): > > _snip_ > > If you’ve been asked to do a field sobriety test you need to mentally process the simple fact that you **will** be going to jail. Nothing you do can stop it at this point–for some reason the police officer believes you are drunk, and when a police officer believes you are drunk they’re sending you to jail, period. > > _snip_ Just chiming in to say I’m another one who was pulled over and given the field sobriety tests and portable breathalyzer and then sent on my way. I didn’t do stellar on the field tests but I did ok and I did the breathalyzer four times. The first two times a rookie cop gave it to me and it came up 0.00 both times and the experienced cop thought the rookie was doing something wrong so he made me do it two more times with him and both times came up clean again. So it seems to me that the experienced cop was wanting to arrest me but after all that they sent me on my way because I really was not intoxicated. I’m in California BTW. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [July 23, 2009, 1:40am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/38 "2009-07-23T01:40:48Z")
> [@Balthisar](#): > > Do you have a cite for Michigan? It was my understanding that our “implied consent” law made refusal of a breath unlawful (or otherwise incurring a penalty). What I _don’t_ know is whether this implies to portable units or station units (in fact, I didn’t know there were even such things as “official” station units). First hit on google [here](http://www.mi-dui-central.com/content/cases/18.php). Note that the person mentioned _took_ the portable breath test (blew a .17) and refused the “evidentiary breath test.” There is a clear distinction between the two. I’d be surprised if this isn’t the case in all 50 state since the portable units are considered to be much less accurate (although most have a fairly high rate of accuracy) than the larger units found at the police facilities. ---
**Author:** ![Dag\_Otto](https://avatars.discourse-cdn.com/v4/letter/d/439d5e/32.png) [@Dag\_Otto](https://boards.straightdope.com/u/Dag_Otto)\ **Post date:** [July 23, 2009, 5:45am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/39 "2009-07-23T05:45:46Z")
> [@Tahssa](#): > > The first two times a rookie cop gave it to me and it came up 0.00 both times and the experienced cop thought the rookie was doing something wrong so he made me do it two more times with him and both times came up clean again. Why would you ever consent to a second test (much less a third and fourth) if you passed the first one? Even if you were unaware of the results of the first test, it seems like a mistake. If the officer ‘did something wrong’ once, what confidence can anyone have in them doing it right in follow on tests? Why give them multiple chances to arrest you? Or am I thinking about this the wrong way? The fact that someone had to take the portable breathalyzer test four times would cast doubt on the accuracy of that device and be useful for a defense, right? ---
**Author:** ![\_cc](https://avatars.discourse-cdn.com/v4/letter/_/e19b73/32.png) [@\_cc](https://boards.straightdope.com/u/_cc)\ **Post date:** [July 23, 2009, 6:15am UTC](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494/40 "2009-07-23T06:15:41Z")
If you can’t stand on one leg, I’m not sure I want you driving on the same streets as me. Kansas, was it? [Previous page](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494.md?page=1) [Next page](https://boards.straightdope.com/t/generally-speaking-can-i-insist-on-a-breathalyzer/503494.md?page=3)