So you’ve just had an all-night bender, drinking large quantities of intoxicating beverages. But you’re wise about it. While you’re actively drunk, you don’t drive. You don’t even go out in public in fact, to avoid the charge of public drunkenness.
Then the next day comes. Clearly the alcohol is all out of your system. But you’re horribly hungover. While driving, a cop pulls you over, and can clearly tell you are hungover (though you easily pass his breathalyzer test).
My question: Can he still arrest you? (As I ask this, of course, I am talking about the laws in the USA, which I assume are pretty uniform in this regard.)
Many states (like Canada here) have a law against “impaired driving”. If in the opinion of the police officer, you are impaired (i.e. unable to drive correctly and safely) you can be charged. Usually, this is based on how you are driving (i.e. weaving, forgetting to ssignal or other signs of poor control.). This is the traditional law where the cops would make you walk a straight line and touch your nose, for example, to see how your coordination was.
Obviously, impaired usually means drunk - but it can mean anything that sufficiently impairs your ability. This was how it was done in the good old days (ITGOD) before breathalyzers. Blowing over 0.08 or refusing a breathalyzer are newer and additional charges in most places. Depending on how wild a party it was an what hour you stopped drinking, you should (but may not) be under the legal limit.
If you think the charge is bogus, then you get to explain it to the judge. The moral of the story is if you are bleary-eyed and hung over and smell like a distillery, be polite to the officer and answer his questions properly - if you act like a dick he can charge you and you get to pay to sort it out. Of course, the fact that eiither (a) you blew well under the limit or (b) the police decided not to give you a breathalyzer - will likely be points in your favour.
A lot of jurisdictions have two distinct but overlapping offences:
First, driving at a time when the concentration of alcohol in your blood exceeds a stated limit. To convict you of this it’s not necessary to prove that your driving was in any way erratic; they just rely on evidence that you were driving, plus the evidence of a blood test taken under suitably controlled conditions. Note that, depending on how much you drank the night before and how rapidly you metabolise alcohol, it’s entirely possible that your blood/alcohol level the next morning will exceed the prescribed limit, even though your subjective experience is of being hung over rather than being drunk (or, indeed, even if you feel neither hung over nor drunk). In those circumstances you can be convicted of the blood/alcohol offence.
Secondly - and this is usually the older offence, dating from the time before convenient blood/alcohol measurement devices were available - driving while under the influence of alcohol to an extent that impairs your ability to drive safely. (The exact wording will vary from place to place.) If you are hung over, then you are under the influence of alcohol, and if your driving is noticeably erratic or inattentive then I think they’d have sporting chance of getting a conviction, without any technical evidence of blood/alcohol level. But they might choose to proceed on a lesser change, like careless driving, to avoid the hurdle of satisfying the court that you were hung over, and that your poor driving was a consequence of this.
Slight hijack here. The FAA has regulations about pilots flying after consuming alcohol - no flying in the 8 hours after consumption, and a blood alcohol level of .04 maximum. However, the regulation also includes the verbiage “under the influence”. The FAA has established in correspondence (rather than the actual regulations) that they construe a hangover to be under the influence.
Having a BAC of only .02 yet failing a field sobriety test can still be charged as under the influence.
Having no testable amount of substance in the blood yet getting pulled over for other things will result in being charged for those other things (weaving, crossing the center line, speeding, impeding traffic, etc. are all illegal whether one is drunk of not). Inattentive driving also includes a huge array of things. I’ve cited people for it who stunk like a corner bar, scored a 0.0 on a PBT but had fallen asleep at a green light. Clearly they were hungover, but sober. Inattentive Driving. $274.50 & 4 points accessed.
ASFAIK just driving bedraggled, with no testable amount of substance in the blood is not in and of itself illegal.
If you’ve been drinking enough to be “horribly hungover”, the alcohol almost certainly won’t be out of your system until the next afternoon at the earliest, possibly the evening. Police often do morning check-stops in areas where they know there’s been a lot of heavy drinking the night before (near festivals, etc).