Pretty much the same here in Washington - you must first be arrested, along with all of the probable cause requirements that go with that, before the test becomes mandatory. Prior to actual arrest, it is strictly voluntary. Many of our dishonest cops will try to intimidate folks into taking the test, saying they will arrest them if they don't. Refusing the test is not grounds for arrest, since you legally don't have to submit until you are arrested.

Just wow. Guilt has nothing to do with whether you did it. You are only guilty once the state has proven its charges or you have confessed. For example, we all know OJ and Casey Anthony did it. But they were found not guilty because the state did not prove their charges. I'm one of those crazy people who will always make the state prove their charges.

I just cracked open my first beer in about four days and I guarantee I smell like I've been drinking. I'm not gonna let a cop go on a fishing expedition because he says he smells booze on my breath. Everything he needs to know about me is on the documents I hand him - license, registration and proof of insurance. Anything else he gets on me ain't coming from me voluntarily.

Been drinking? No comment.
Know how fast you were going? No comment.
Where are you coming from? None of the state's business. Am I free to go now or are you detaining me?

Interesting thread but... Why not just not drive after you've been drinking? :rolleyes:

As a suggestion, If you want to drink then don't be the designated driver or drink at home.

Back in high school (the 80's) a friend told me about getting caught drinking in the park.
He was the most intelligent/aware/balanced/best driver of the bunch.
Chucked his keys into the grass more than 25 feet away when the officer wasn't looking.
No keys=No drive.
He picked them up, showed them to the officer, and walked away.
Had a buddy pick up the car soon after.
Legally the cops would have to first prove he could have driven the vehicle without keys. No go.
Meanwhile, he had a multitude of other cars ready to get around.

Conversely, I read a story of a guy getting the full force of a DUI for pulling into a parking lot and 'sleeping it off'.
The right thing to do.

Moral of the story is:
Break the law, skip sentence.
Try to follow the law, go to jail.

Have any of you armchair Clarence Darrows read the fifth amendment? If you have your are aware it covers far more than self incriminating prohibitions such as right to grand jury in felonies, protection from double jeopardy, due process in both civil and criminal cases, etc. Since the original poster was asking about the prohibition against self incrimination the 5th is very succinct....paraphrasing ....no person shall be compelled to be a witness against himself in any criminal proceeding. That's it. And the courts have interpreted that as you are not required to give testimony in a case against you. And your failure to testify cannot be used as an admission of guilt.in all jury instructions.

The taking of blood is not considered testimonial...it is physical evidence. Much like fingerprints or DNA for example.

This is no more than an interesting debate on our civil rights to me. For the record, I have never been stopped under suspicion of DUI. I've never been asked to perform the roadside test, nor have I ever been asked to blow into a breathalyzer. Come to think of it, I have never actually even seen one. Total non-issue for me.

The forfeiture of specific rights to garner specific privileges granted by the state is the larger issue, at least in my humble estimation. I don't think we should have to do that. In a country wherein "all power is inherent in the people", the people have the authority to grant their government certain powers over them - the government does not have the authority to grant, and therefor deny, privileges.

I'm a little confused, Jeff. Are you saying the state should not be in the business of licensing drivers?

Not at all. I mentioned earlier in this thread that I sure feel better knowing those around me have been vetted as capable of handling their vehicles in a safe and responsible manner. Believe me, I have spent a considerable amount of time in countries where that is not the case and, trust me, we do not want that.

My issue is with things like "implied consent" in exchange for that license. That, and things like having to consent to random, unannounced searches of one's home and premises - with no warrant - to secure higher classes of FFL. There are many other situations under which we give up rights in exchange for privileges, or permission to do things or own certain things. Therein lies my beef...

Gotcha....thanks for clarifying for me.

You have missed the point. Please re-read.

This thread is not about BAC.

"[I was arrested for public drunkeness]...I had the right to remain silent but not the ability." --Ron White

The OP asked the basic question Why would anyone incriminate themselves. It was in the context of a suspected DUI stop so this discussion has degenerated into a debate over implied consent law.

As to core original question people let's change the facts a bit. Suppose you are pulled over because your car was observed a a murder crime scene. The officer approaches and in the course of a brief investigatory stop asks you are there any weapons in the car. You have a CCP AND THERE IS A PISTOL IN YOUR CAR. WHAT IS your answer? What if he then asks do you know anything about murder of John Doe? Do you say we'll I only shot him twice in the leg but I'm no murderer much like a "I've only had two beers" response to have you bee drinking question.

Again, depends on the state. In AZ if you have a CCW and an LEO asks you if you're armed, it's a crime to lie about it, though there is no duty to inform if not asked. If you have no permit, it's still legal to carry, but you don't have to answer truthfully if asked if armed. Crazy, I know.

As for the other questions - no comment, am I free to go or are you detaining me? Absolutely no good can come from playing 20 questions with a cop on the side of the road. They are not trying to clear you.

Truer words have never been spoken. The reality is that a police investigation has long since been undertaken before the blue lights come on.

Is there really a parallel their? Its perfectly legal for all but the smallest guy or the largest beer to have 2 and drive. Leg shooting, not so much.


If you tell an officer you had two beer is their a legal basis for him to envoke probable cause or whatever the jargon is? If so is this any different than "I prefer not to say officer".

I fully support our 5th amendment right, but grayscale for me is what constituents evidence for probable cause? I am sure this is abused frequently, and is more alarming than a cop forcing a test on somebody with legitimate cause

If you tell a cop you've had two beers AFTER being stopped for some other violation, which he can probably attribute to your having just consumed alcohol (you admitted it), you have just handed him a big, gift-wrapped package of probable cause. This traffic stop will not go well for you. Never mind that just about everyone lies to cops about how much they had to drink and the cops know it. Tell them two beers and they'll assume it's four or more. Assuming he has no more pressing calls and is trained in administering field sobriety tests and breathalyzers, you're going to go through the process.

BTW, do you have any open containers in the car? Any outstanding warrants for FTA or unpaid tickets? Oh, you have just about ensured you're not going home that night.

Two regular sized beers in space of an hour will put the average sized person close to .08 BAC limit. Its a fairly low tolerance and most people at .08 do not feel they're impaired. But yes, any admission of drinking gives rise to PC.

I agree with Rick, again the entire process by design is to steer you down a very narrow path. Every word asked usually repeatedly to elicit the answer they need to give reason for search / arrest / seizure.

In Va BTW, if you are in the vehicle, over the limit, engine off, do not have to be in the driver's seat but keys are still in ignition - guess what? You're going to jail.............................................. .................

I'll take it a step further....keys do not have to be in ignition. Just within access to occupant. And sometimes not even that.

Gotta toss that DME relay into the woods to be really safe these days.

I believe the term is "reasonable cause / suspicion" as in: Oh........... so you say you've had a drink today? How Many? When?......................off you go to jail

Here's a trick often used. Officer asks you to step out of car and come to rear of car while he goes to his car to call in your license. You stand there waiting. And waiting. And waiting. So you innocently lean on the trunk of your car. That now becomes "He was so intoxicated that he had to lean on his car for support." And it's all on the dash cam

Or how about the trick where they tell you you're free to go and then, ask if you mind if they have a look your car? That way, you can't claim you felt under duress because you were already told you're free to go. Don't ever help the state. They are only trying to arrest you.

So when a cop asks you a question you don't want to answer do you just ignore the question, reply "no comment" or "i don't want to answer that" or some other reply. I know it is not smart to admit to anything and it can worse to lie.

What is the appropriate reply the question "have you been drinking?" or "do you know how fast you were going?" I take the 5th does not sound like the best answer.

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Just a bit of humor for the thread.

I wouldn't answer any question other than "Is this address on your license current?" Assuming he tells you immediately why he pulled you over, any question related to that is an attempt to get you to confess. Any question unrelated to that is a fishing expedition. You can't help yourself by helping him with either.

If he pulled me over for speeding, any question unrelated to that I'd answer with, "What does that have to do with the reason for this stop?" or "Officer, everything you need to know is on the documents I just handed you. Am I free to go or are you detaining me?"

Never give a yes or no. Ask him the questions. Let him know you're not going to talk your way into a search or an arrest. If you can't think of anything else, just say, "I don't have to answer any questions and am not going to. Am I free to go or are you detaining me?"

Does it matter at that point?

If the officer wants to unjustly envoke probable cause he can easily do it with out much issue right.

"as soon as I pulled him over I could hear him slur his speach"

Even if its not true, and the guy then blows a .18, even saul from breaking bad couldent make a case for you

So the drill would be ..

Refuse the FST
Say NOTHING
If they elect to arrest at that point .... demand an attourney before allowing a blow or blood draw?

I doubt you can delay the blood draw or blow test for an atty. to arrive. Implied consent means you consented when you got your license. Drag it out and delay and they'll hit you with refusal.

I guess my question is really for Jim,

My impression is that you always refuse the FST since it is a subjective test that essentially gives probable cause for the blow?

If you refuse the FST then LEO has to make an arrest or release decision based on his personal assessment of your condition?

Once arrest decision has been made, it is going to go south but if you refused the FST your lawyer can put up a good no PC argument?

It seems to me the weakest link for LEO's is determining probable cause for pulling you over in the first place. Unless there's evidence such as a dash cam, broken taillight (defective equipment) or some other miniscule violation, couldn't it be argued that pulling you over was without probable cause?

Also, I'm wondering why not silently hand over the documents, including your lawyer's business card THEN ask if you are free to go?

Obviously, you're not free to go while cop has your docs. When I went through the process, because that state had a reputation for racial profiling, the cops wrote thorough notes on their PC for pulling me over. It was a road known for speed enforcement and with a state police precinct on the road. My speedometer lamp had just gone out and I couldn't see my speed. I was going 63 in a 50 zone, not at all in a hurry, but was the only car on the road and so had no pace car to follow. Their PC for the stop had me dead to rights.

If you were to get a lawyer to try to fight it out in court, I'd definitely go after PC for the stop. For example, in AZ a speed limit is invalid if there hasn't been a road study done for that road, at which point "reasonable and prudent below 65mph" becomes the law. Lots of roads here have not had road studies, so that's a good way to challenge PC for a stop based on speeding that leads to bigger things.

If you're really interested in how field sobriety is conducted,
Google NHTSA field sobriety manual. It is the training manual for LEOs. Available free in pdf format....about 200 pages.

I prefer to not try to beat the experts at their game. I choose not to play.

The manual is very informative. For example of the tWo accepted field sobriety tests, one leg stand and walk and turn, they are generally inappropriate for persons over age 65 or persons 50 pounds or more overweight. what I think the general public doesn't realize is the steps an officer goes through before even making the stop.

Anway, my general advice is

DONT DRINK AND DRIVE

Take a cab

Have your license registration and insurance card readily available so if stopped you can produce it without fumbling

If stopped be polite and keep both hands on the steering wheel

Do not agree to HGN... not generally accepted as evidence of impairment anyway...just PC to request real intoxicated teest

Do not agree to PBT...again not generally admissible to impairment...just PC for real test


Do not take field sobriety...walk and turn or one leg stand

If you have had ANYTHING to drink in past 4 hours do not take intoxilizer

If you do take intoxilizer and blow over demand an independent test at local emergency room at your own expense immediately.

After you get out call Saul;)

again, this thread is not about drinking and driving......

In Pa. the law was changed to avoid the problem of "relation back" of bac to driving to allow charging dui where you are .08 "within 2 hrs" of operation of a vehicle. Not sure what the appellate challenge status of that is.

I do understand the need to be careful with communication with a cop. However, often the approach of "you have my documents, now leave me alone" is just going to piss someone off.

Agreed I tried to steer it back. But in the defense of everyone jumping on the DUI discussion your original query was centired around implied consent

I'll just say that you need to remember protections against self incrimination apply only to criminal matters and not civil...implied consent laws are primarily civil/administrative sanctions... not criminal.

Caveat....admitting to a crime in a civil action can lead to criminal charges. So there are some instances we it's advisable to invoke the 5th in a civil action

Probably get you arrested for destruction of property - getting your blood on his shoe.

Well, it's never a good idea to be rude to the cop. But there's nothing illegal or even uncooperative about not helping him find PC to arrest you. As I mentioned, I refused a breath test, the cops uncuffed me, gave me a Coke, did about 20 min. of paperwork, drove me home, didn't tow my car and then wrote a nice note for me to the prosecutor. Doesn't always have to be a pissing match.