They already “have you” if they have pulled you over, picking up a class 4 (fine and no jail time, where DUI 1st is a class 1, up to 12 months in jail) hardly makes your situation noticeably worse.
This Kentucky statute illustrates points 1 and 2:
http://www.lrc.ky.gov/KRS/189A00/010.PDF (Emphasis added.)
Here’s one that allows post-operation consumption as an affirmative defense:
RCW 46.61.502: Driving under the influence. (Emphasis added.)
Maybe I’m not following you. If you chug half a bottle of Jack, you can be presumed to be drunk and incapable of driving regardless of your previous condition of alleged sobriety. So now you are drunk, and with the keys in your pocket or in the ignition, you are guilty of drunk driving. And the defense that you were as sober as a judge up to the moment that you got pulled over for possible DUI, and that the decision to get drunk in the middle of the street was spontaneous, is implausible in the extreme. Not to mention that the cop can compel you to perform the drunk test (not a Breathalyser, the “walk a straight line and count backwards by sevens” or whatever it is test) before the chugged hooch has a chance to hit your bloodstream, and if you fail, then you were drunk beforehand.
Like I said, the presumption of innocence does not extend to complete gullibility from a jury of your peers. If you want to present the affirmative defense that your BAL hit .15 because you gulped down six shots five minutes before failing to stand on one foot for ten seconds, I doubt you are going to get very far.
All these incredibly strained scenarios tend to founder on the rocks of reality in a court of law, IME. I remember reading Helter Skelter, by Vince Bugliosi, about the Manson murders. At one point in the trial, the defense lawyer was arguing some silly thing about how the witness couldn’t testify about his identity because he only knew it thru hearsay (or something equally dumb). Bugliosi objected “on the grounds that this is ridiculous”.
The objection was upheld.
The issue isn’t that whether or not the guy is an ass. The field test is refusable in many jurisdictions. And having a mouthful of Jack is known to throw off the breath test, and I don’t beleive they can force a blood test. So they have to take you downtown and have you wait until the “since last drink” time has passed to give you another non-copromised breath test.
By which time some of the alcohol would have entered the blood stream. and the further problem is that the law isn’t ‘drunk’. It’s over .10(or .08). And due to the fact that people process alcohol differently, unless the numbers are extreme, it would be hard to "prove beyond a reasonable doubt’ that the number was over .1 and not say .099.
In my job as a juror, It’s not a matter of if I’m gullible or not or what if I think he was drunk. I (and many jurors) take the duty as black or white, did they ‘prove’ the BAC was over 1.0?
It might work, is all I’m saying.
I was responding to one specific question; to wit, "How are you going to get home if he doesn’t arrest you? (Emphasis mine.) I made no comment on whether he *could *arrest you. You said that he didn’t make the arrest. It’s your scenario, not mine.
Agreed. But you said there was no arrest.
Agreed.
Agreed.
Unfortunately for the drunks all cops aren’t stupid. And for those that are, there are procedures in place that are easy to follow. These things have been tried before. While waiting for the time required the person is watched from about two feet away. If they throw up, off to hospital for blood. And they can force the taking of blood.*
Someone mentioned mouthwash. There is a wait period before the breath test is given. Through many previous court cases and expert testimony the wait period has been proven to be long enough to get rid of anything that was in the mouth that may have thrown off the test.
On average BAC goes down by .015% per hour. Most of the drunks I have busted would have needed in flight refueling to get below the limit. And you could still use expert testimony to prove what the BAC was at the beginning of the pursuit. And the criminal charge for eluding is a lot worse than the charge for DUI.
*Laws differ from state to state
I was asking the question that I would ask if I were a cop and the suspect were trying to tell me that she was cold stone sober up to the point where I pulled her over for possible DUI. I am highlighting the implausibility of the story - that she did not arrange for anyone to pick her or her car up. Therefore it is that much less likely that she was engaged in a scenario of innocent and legal drinking, and much more likely that she was trying to scam the DUI test. If she didn’t have any arrangements to get home, then she would have had to drive drunk if she were not arrested.
So this innocent story of how she just spontaneously decided to knock back a few upon being stopped for possible DUI doesn’t wash. Either she is trying to beat the test, or she is attempting to drive drunk. Because she doesn’t have any way to get home, or to get her car home.
This reminds me of what my friend’s father used to do when pulled over on suspicion of not wearing a seatbelt: upon pulling over, he would immediately exit his vehicle, thus depriving the officer of any chance of confirming that he was driving without a seatbelt. He claims this worked for him until it was made an offence to exit one’s vehicle during a traffic stop until so instructed by the police. And no, he wasn’t at all worried of getting his head blown off for exiting his vehicle without warning; I think that sort of thing is an issue only in jurisdictions where handguns are legal.
Picket Fences, from the early 90s, better known for having a 16-year-old Charmed One french-kissing her girlfriend in the dark.
ETA: Actually it may have been The Practice. Still David E. Kelly, and, surprisingly, fewer murders per capita.
In my truck, if I were to get pulled over, first thing I’d do is take off my seat belt in order to reach the glove compartment for my registration and proof of insurance. No, I don’t live in an area where reaching for my papers will get my head blown off (suspicion of reaching for a gun).
Just out of curiosity , what is the consequences of refusal in your location.
Declan
There was an episode of cops on just last week that featured this very issue. Guy wrecked his car and walked home. Cops show up, he comes out obviously intoxicated. The cop immediately stepped up and basically said he cought a lucky break that evening as he was obviously drunk but the cop would, he said, have a hard time proving he drove that way in court since he left the scene.
I was witness of a rear-end collision late at night in Killeen, Texas, back in the 90’s. Guy was obviously very drunk. Everyone moved into the parking lot, police were called, and we did everything right. Except, the guy took off at the last minute. Police did go to his apartment and found him there, but it was already too late to bust him for drunken driving.
This absolutely is true, because my wife once failed a breathalyzer after using a Listerine mouth strip. Honest to God, it really happened, in 2001, on Hurontario St. just north of the QEW in Mississauga, Ontario. She had not had a drink at all, and got out of being arrested by having the cop try it on himself (of course, it helped that they could visibly see she was not drunk) and, sure enough, he blew over the limit.
However, if you really are drunk,
-
You’re a goddamned dangerous fool and deserve no help, and
-
The police can arrest you anyway and you have an excellent chance of being convicted. A valid breathalyzer test is not the only way you can get rung up for DUI.
Which is why cops these days should (and some are being trained to) search the person and the car for receipts. “I only started drinking after the accident” doesn’t carry as much weight when there’s a paper trail showing you had a dozen longnecks at Club Baby Seal. Also tells you where they’ve been, so you know where to go and ask the bartender how much he’d been drinking and for how long.
If she had used the Mouthwash, perhaps. But the LISTERINE POCKETPAKS® Breath Strips are "Sugar-free, alcohol-free, and no calories…Carageenan ,Copper gluconate, Eucalyptol, FD&C green no. 3, FD&C yellow no 6, Flavors, Glyceryl oleate, Locust bean gum, Menthol, Methyl salicylate, Polysorbate 80, Potassium Acesulfame, Propylene glycol, Pullulan, Sucralose, Thymol, and Xanthan gum "
http://www.brands2liveby.com/product.aspx?id=496
If they bother to ask the bartender. Otherwise, perhaps you were buying drinks for that hot chick you’re trying to always pick up?
Propylene glycol is IIRC a form of alcohol and I believe menthol has an alochol-like functional group. Depending on how the breathalyzer test scans for “alcohol,” I wouldn’t rule out a false positive from this stuff.
In some jurisdictions, by signing the license, you agree to sobriety tests, such that subsequent refusal to take one would be ground for automatic forfeiture of the license on a sort of breach of contract theory.
A police office I play poker with gave this advice to the table if someone plans to drive after drinking:
- Keep your license and registration out of the glove box, easily accessible.
- Roll the window down just enough to pass the license and reg to the officer, as he walks up to the car.
- Roll the window back up, only roll down if ordered to. Roll it down as little as allowed by the officer.
- Stay polite, but don’t offer any information. Ask for your ticket, or if you are free to go.
- Hope you don’t get asked to do a field sobriety test.