I feel like I should have some sort of disclaimer… I have never done this and have no plans to… also I’m sure it’s been asked in some form here before.
You wreck your car coming home from a bar. The cop is coming to give you a ticket.
You open three beers and chug them on the spot.
Would this not complicate the issuing of a DUI? An immediate blood test might tell how much of the alcohol is in your bloodstream from before, but you’ll surely bomb the breathalyzer… yet you could argue it was not booze consumed while operating a motor vehicle or even while the craft was operational.
You could say the transgression is failing any breathalyzer and that at any point a cop could ticket you for such… but might that be “just” public intoxication and not DUI?
Such a thing has been argued in cases I’ve seen.* Hard to prove, and you don’t have much credibility at that point. The jury is unlikely to be convinced. Especially if you have just wrecked your car on the way home from a bar.
*A related defense, “I did three shots just before I drove, and I knew I could get home before they affected me. If I hadn’t been pulled over, I would have been legal the entire drive home.”
I think the formulation in the UK is “drunk in charge of a vehicle”. If you’re alone in the car, or in the driving seat, and you’re found with the relevant level of alcohol in you, you’re nicked.
I suppose it’s just possible that alcohol consumed immediately before a test might not register on a breathalyzer - but that immediately, you’d most likely be seen to be drinking at the wheel anyway. One way or another you’re done for.
It’s easy to slip over the line into silliness on this, but a DUI can and has been charged by folks sleeping it off in the back seat. So long as the keys are in your pocket, you’re fair game.
One angle that has left me concerned is when camping - it’s not unusual for myself or friends to throw back a few beers. Technically, a DUI could result. I don’t own a motorhome but have wondered how this applies - one could be snockered sitting in the back of a camper or class A, whatever.
Rumor control had it, when I was a young lad, that if one was going to sleep it off in a car (versus driving) that the “sensible” thing to do was not have the car keys in ones posession. Thankfully I never had to test that theory.
There have been cases where people have left the scene of an drinking induced accident and went straight home and started/continued drinking. At that point I think it depends on how good your lawyer is and how much damage was done. This wouldn’t be the time to go with the cheap lawyer.
There’s the Gordon Lightfoot defense - he was arrested for DUI and the judge, a fan of his music, accepted the argument that “just because I blew over 0.08 later in the police station does not mean I was that drunk while operating the vehicle”. that defense was tossed by the appeal court.
there’s the old joke about the doctor and the lawyer who have a small fender-bender on a severely icy country road. The lawyer offers the doctor a sip from his flask, and after a big swig, the doctor hands it back and the lawyer puts it away. The Doctor says - “aren’t you having some too?” and the lawyer replies (of course) “not until after the police arrive”.
In Canada there’s the crimes of open liquor in a motor vehicle and leaving the scene of the crime, so your options are limited. A friend of mine lent his car to his brother, who smacked a dumpster leaving the bar, drove home, and went to sleep. When the police arrived the next morning, all they could do is ticket him for leaving the scene, nowhere near as severe.
I suppose in Canada, all they would do is charge the guy anyway and let him argue his case in front of the judge. not sure how much a stickler the judge needs to be, does he have to believe the defendant when he says he was not drinking, or can he recognize this as a ruse, the defendant is not credible? How long does alcohol take to enter the bloodstream? I doubt a sequence of blood tests is in the works unless it was a serious accident.
I knew a guy who got drunk at a party, went out to his car and slept it off in the back seat. He woke up to a cop arresting him and charging him with a DUI. Turns out, possessing your car keys, being within arms reach of the car, and being drunk is enough to count as a DUI in Kansas. No driving required. I know another person who was in the passenger seat while her sober friend who was driving her home stopped at a gas station. She got a DUI (in Illinois) for being drunk in the passenger seat of her car while the keys were in it, and her designated driver was inside paying.
So, you can leave and go get drunk after you wreck your car, but then you’ll be charged with fleeing the scene of an accident. But being drunk near your car is all it takes to get a DUI. Fleeing the scene is probably a better outcome for you than a DUI these days, though, frankly. Although staying sober and waiting patiently for the cops to arrive is even better still.
I’m not sure your premise is correct. My understanding is that the breathalyer detects alcohol in the air coming out of your lungs and has nothing to do with what’s in your mouth at the time. If the alcohol you just drank hasn’t had time to get into your bloodstream, it won’t affect either a blood test or a breathalyzer.
BTW, there was an episode of Quincy where a man drove with an open container of alcohol (several witnesses saw him drinking WHILE driving) and he hit a pedestrian, pleaded guilty to DUI. But Quincy figured out it was premeditated murder because the alcohol hadn’t gotten into his bloodstream until after the crash took place. http://www.imdb.com/title/tt0681764/
Anecdotal but this happened to a guy (back in late 80s-early 90s) that I worked with. Lady ran a red light, hit his truck and then walked into a bar at the intersection. Ordered a pitcher and began pounding them down. Claimed that she was so traumatized by the wreck that she needed a drink. Not sure how it actually worked out but at the time he was telling me about it, it seemed to have a possibility of working for her.
I did once and a cop tried desperately to bust me for it but lost. I was waiting to sober up in a parking lot before I drove home. I had enough sense to switch to the passenger seat AND hide my keys about 50 yards away under a large boulder. I feel asleep and awoke to taps on the window from an officer that had a look on his face like it was Christmas morning. I told him I had been drinking but I wasn’t going to drive until I was sober and I was just hanging out in the passenger seat for that very reason. He looked discouraged and then thought for a minute. Then he said I was technically still in control of my vehicle until I told him I didn’t have my keys. He didn’t believe that for a second until I showed him where they were. He wasn’t too happy but that worked and there was nothing he could do.
Yeah, it’s basically called the “rising” defense. In CA a DUI is actually two separate charges, one for driving under the influence and one for driving with a .08 or higher BAC. So you make the defense that you weren’t under the influence/over .08 when you were driving. The cops will give you a hand-held breathalyzer test at the scene and then later a breath or blood test at the station after arrest. If the first number is, say, .09, and the second number is a .12, then any blood alcohol expert can tell you that there’s a good possibility you were under .08 when you actually got pulled over, due to the curve of the BAC graph. All dependent on the timing of course (and the expert will look at other things such as your body size, what you had to eat, how much/what type of alcohol you consumed and when, how you did on the FSTs…)
So yes, in OP’s scenario, chugging a bunch of beers before the cops arrive can certainly complicate things. Your lawyer will need to present the evidence you did so, and hopefully the numbers line up in such a way it’s believable. Might well be that the breathalyzer is something like a .22 and the expert’s calculations show there’s no way three chugged beers would’ve gotten you that high in the 15 minutes before the cops took the breathalyzer, for example. The DA will certainly be pointing out that you just crashed your car beforehand anyways.
Every state/area is different but in CA, at least, you need to be “driving” the vehicle, which requires the car to actually move. So just sitting in the car (especially the backseat) with the keys in your pocket isn’t enough, but it could be proof tending to show that you were drunk at the time you were last driving the car (such as if the cop finds someone pulled over on the freeway… he obviously had to drive there at some point). If you’re the only one in the car and there’s no one else around, where the keys are isn’t going to matter much.
Must have been the 90s. My dad got about five DUIs in the 80s. They were about as severe as a speeding ticket back them, at least in Mississippi. Maybe your locality was cracking down by then, but I’d probably take that lady at her word.
As of 2012, there are still an amazing array of completely dry counties - including NV.
The Bible Belt continues to protect its good inmates from Demon Rum. and vodka… and wine. and beer stronger than 3.2.
Note: If you have actually seen 3.2 beer, you live(d) in a hell-hole Bible Belt community.
IN OH 1950’s: as a child I had heard of (and actually saw one) “Package Stores” - dreary, tiny retail stores operated by the State of Ohio. They were the only legal source of distilled liquor and were closed more often than they were open.
My wife turned 21 when we lived in Kansas. Unfortunately, her birthday was on a Sunday, when it is Illegal to buy liquor throughout the state. D’oh!
We drove over an hour to a casino on an Indian reservation so she could drink on her 21st.
I went back there recently for work, and they were voting on whether to sell real beer (>3.2%) in grocery stores. Every liquor store had signs posted detailing how terrible it would be if grocery stores could legally sell beer. I wonder how that law turned out.
They are really tough (and rightly so) on DUI in the UK. There are as always some loopholes though.
A drunk driver who had an accident, stopped to exchange detail, and drove on home, might be followed buy the cops. If he answered the door after drinking some alcohol, they would not be able to charge him.
There was a case where a guy drove to another town, expecting to stay with his girlfriend. After a few drinks, they argued and she threw him out. Knowing he was over the limit, he went to sleep on the back seat, and in the early hours of the morning, he was breathalysed and charged. His lawyer got him an absolute discharge because he had the keys in his pocket. If he had put them in the ignition, it might have been a different story. The same would apply to a driver in a camper van or a truck driver in his sleeper cab.
This happened in an episode of the TV series The Practice. Someone called their law firm and said he’d gotten in a car accident while under the influence. A lawyer told him to drink as the police were approaching, so he could claim that only the stress of the accident had made him drink, he had been sober before. Reasonable doubt! And it worked! But it turned out the person he’d hit worked for their law firm, and was out of luck as far as criminal or civil claims either, IIRC.