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Comment by xwdv | Hacker News Reader

You’re not required to use a breathalyser. You can choose to simply go to jail, spend the night, and when you wake up in the morning you should no longer have excess blood alcohol concentration and there is no hard evidence of driving under the influence, only conjecture.

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> Under the 1988 Road Traffic Act, anyone unable to complete a breathalyser test at a police station is automatically charged with Failure to Provide, which can have serious consequences for the offender including driving disqualifications, a maximum possible sentence of six months’ imprisonment and an unlimited fine.

Seems like a bad plan (and if you are drinking and driving an unethical life tip), but you should probably indicate where you believe (as you haven't indicated you're a legal expert) this is the case as the rules aren't the same across the world and this is a UK article where people are charged with "Failure to Provide".

If you happen to be driving under the influence, it’s the only plan you have.

Again you should probably specify jurisdiction you want this plan to be under and why you think it's good legal advice, because as the article pointed out, in the UK you can be charged for not providing (and they probably blood test you) and in many areas of the US they will blood test you, so your legal advice of drunken chicken is irresponsible without caveats, which I suppose is somewhat fitting considering you're trying to advise the criminally irresponsible.

In most US states the penalties for refusing are just as bad or worse. License suspension, fine, jail time, and revocation of any professional license you hold. Especially CDL, of course. And anyone looking at your record is just going to assume you were operating under the influence and tried to lie your way out of it, selfishly and without any remorse. In the long run, just taking the penalty and taking steps to avoid repeating your mistake is a much better look.

Are there really jurisdictions in the US where the penalty for refusing a chemical test are worse than DUI? That doesn't seem right.

California for one: https://www.shouselaw.com/ca/dui/laws/chemical-test-refusal/

No, the penalties for first DUI are far more harsh than test refusal in CA.

Test refusal with 0 DUIs: 48 extra hours in jail; six extra months of required DUI school; 1-year driver’s license suspension

1st misdemeanor DUI: up to 6 months in jail, $390-1000 fine, 6 months IID, 3-9 months of DUI school.

Just refusing the test with 0 DUIs is a mandatory license suspension (even if you are not convicted of a DUI), while you can have multiple DUIs without license suspension.

No, first offense DUI in California mandates a license suspension:

https://leginfo.legislature.ca.gov/faces/codes_displayText.x....

California's DMV will allow people with a suspended license to drive after they've installed an IID in their vehicle, so most lawyers' websites list that as a penalty instead of a 6 month license suspension.

Thanks for the correction, I was unaware.

You are correct for Washington state, at least. I looked it up and the harsher penalties only take effect if you are convicted after a refusal.

I'm not a lawyer, etc. In many jurisdictions you have a legal obligation to provide a sample for testing of intoxication when driving. (You consent to this by agreeing to drive.) In those jurisdictions, refusal to provide a sample is the same as intoxicated driving. I believe the UK is such a jurisdiction. That is to say, the offence is worded in a way where refusing to provide a sample has the same punishment as driving while intoxicated. So you may end up convicted of the drunk driving offence anyway. But you will also appear remorseless, like you were trying to game the system to get away with drunk driving. Which will likely result in a harsher sentence than if you showed contrition.

> You consent to this by agreeing to drive.

I'm also NAL, but the idea that you consent to any test by agreeing to drive sounds dubious.

> refusal to provide a sample is the same as intoxicated driving. I believe the UK is such a jurisdiction.

for refusing a sample you are likely to be arrested (under suspicion of DUI) if you "do not have a 'reasonable excuse'" not to be tested. You can give a reasonable excuse, such as a medical one, which would probably play into the courts later.

I don't know further details because there seems to be confusing terminology around what is directly illegal, versus indirectly illegal - e.g. seems things can be "an offence" but also have stated "defences" to them, such as a reasonable excuse, which seems to imply "a defence in court".

>the idea that you consent to any test by agreeing to drive sounds dubious.

This is the case everywhere in the US. The term 'implied consent' refers to the idea that a driver consents to chemical tests by virtue of operating an automobile on public roads.

Hmm, I wonder if it's an unusual use of the word? reading online, many of the description say "an implicit agreement". I think the determinate would be: could you test the blood of an unconscious person?

>could you test the blood of an unconscious person?

If that person is unconscious and suspected of drunk driving, yes. The US Supreme Court ruled that the 4th doesn't prevent that search in Mitchell vs. Wisconsin.

However, if that person is conscious, implied consent does not allow officers to force a blood test without a warrant (Birchfield v. North Dakota).

I don't think there's implicit consent, but the police can easily obtain a warrant to draw blood should you refuse.

Actually many DWI attorneys encourage you to take the breathalyzer, since there are many ways to get those results invalidated in court.

A good life hack is to stop doing that.

They will draw your blood in jail.

Every state in the US will have different laws... in some places you are instantly convicted on denial of breath/blood testing. In other places you are gonna go to jail, lose your license regardless.

Don't drink and drive folks.

Actually they will take you to a hospital, to ensure the blood is drawn by a medical professional.

> Don't drink and drive folks.

Agree on not drinking and driving, but you seem to assume that the person had been drinking.

What about a person who has not been drinking, gets stopped under suspicion of something, and is physically unable to use a breathalizer?

That's not what the article states:

That may be the case in the UK, where this study was done, but in many states in the US there is so-called "implied consent", and refusal to do the breathalyzer results in your license being suspended regardless of any DUI conviction.

This may or may not be as big of a deal nowdays, what with WFH. But I'd have a hell of a time explaining myself if they asked why my wife was dropping me off and picking me up from work for the next 2 years.

The article points out that Failure to Provide "can have serious consequences for the offender including driving disqualifications, a maximum possible sentence of six months’ imprisonment and an unlimited fine.", so it's a bad move there as well.

> but in many states in the US there is so-called "implied consent", and refusal to do the breathalyzer results in your license being suspended regardless of any DUI conviction.

It depends. Certainly most states you can refuse field sobriety tests and portable breathalyzers. But as the station later you generally can't refuse the breathalyzer machine. Check the laws for your state. This isn't to say I condone consuming alcohol before driving. It's about knowing your rights in law and protecting yourself.

Why is that their business? Why does it matter how you get to work? What if you share a vehicle?

Because our jobs are more than just our productivity. They are a social performance.

If you do the former well, but the latter poorly... people can be and often are fired for it. If you do the former poorly, but they latter well, these people can even be promoted. I don't think I could pull that last one off, so my life strategy is "high productivity with genuine effort on the social performance".

I did not realize this in my life as a younger man, and career success was mixed at best. Now I know, and while I struggle with the social performance, I at least attempt it. Because I am so bad at it, I honestly do not know if the car thing would matter. Would it?

Maybe it wouldn't, maybe my answer when they asked is what would sink me or not. Maybe they're an old boys club, and the thought that I was worried that a 0.05BAC would show as a 0.09BAC and so I refused and lost a license... maybe that earns me brownie points. They chuckle, and I get my promotion next year. Or, fuck, maybe they lost a loved one to a drunk driver once, and they manufacture a reason to fire me a few months from now.

How do you even figure it beforehand? I don't drink, but the implications of losing my driver's license over shit like this wouldn't make me feel good at all. Ulcer-inducing.

This may be true in some situations, but in others, it can result in automatic suspension of your license, and/or they can just get a warrant for a blood test.

I've also seen people convicted because, despite several hours' delay in obtaining a BAC, they were able to extrapolate back to the time of the accident. (There is apparently some dispute among forensic professionals on the validity of this, which implies the extrapolated value could be higher than actual)

Originally it was thought that alcohol metabolism had zero order kinetics (alcohol concentration goes down over time linearly, irrespective of dose/concentration) and now there is evidence to suggest it's first order kinetics at least in some regimes (rate of disappearance depends on instantaneous concentration). So the practical implication is they need to do a few more blood draws over time to extrapolate concentration a few hours ago:

    - Lazy (old model): Take one blood sample, assume all people metabolize alcohol at the same rate, add delay time * generic zero order constant
    - Not lazy (old model): Take 2 blood samples to determine that person't zero order constant + add delay time*K to  original sample
    - New model: Take 3 blood draws, do a quadratic curve fit, determine original concentration from that

In the US the police can take you directly to the hospital for a blood draw.

This is the normal procedure in Spain when people refuse to blow also.

What many people don't know is that the blood test is not only less convenient, but typically also more accurate. It gives a direct alcohol-in-blood measure, so is a higher value. Therefore the situation gets worse for the driver that does not comply.

This assuming that the driver behave 100% politely against the police (not always the case in the mix idiot driving + booze) Starting to insult the police is just the cherry on top for winning an extra-juicy fine.

Most Police will understand that having a tracheotomy is a reasonable excuse to avoid the blow test, and will pass directly to the blood test (or will decide to take other measures first according to the case). This people simply can't blow in a normal way, so can't perform the test accurately.

> Therefore the situation gets worse for the driver that does not comply.

You're assuming the breathalyzer always underreports. I don't drink, so if I ever get a high reading somehow, you bet I'm going in for a blood draw.

I was thinking the very same thing!

One's liver can process alcohol at a constant rate, thus if you consume a large amount of alcohol over a relatively long period of time, you may have less in your blood than a much smaller amount consumed immediately before driving. My knowledge ends there, but I would guess that the breathalyser would pick up stronger traces of that slow consumption of alcohol relative to the content in one's blood.

Drinking alcohol gradually (or, in your case, not at all) before driving is clearly more responsible than consuming it quickly and immediately beforehand, and as a result it appears to me that the blood test would always be fairer: it more closely measures what makes one's driving erratic.

Does anyone know of a jurisdiction where you can explicitly request a blood test?

The main problems could be to be diabetic (test will confuse acetone with alcohol, false positive), to have alive yeast in the intestine (true positive even without drinking, would still be drinking under the influence), or to work in a lab (false positive, normally). You could have a false negative also, but that would be a problem by different reasons.

You can request a blood test explicitly any time that you are required to pass the breath analyzer, the problem is that the movement could backfire and not play in your best interest. It will happen if you fail the breath analyzer test by a lot

I talking about Europe, the laws in your country can be different, but is obvious that a driver with a tracheotomy should not lose their license just because they have a hole in the neck and are unable to use a breath-analyzer. They can always comply on doing a blood test. Common sense should be applied by the law enforcers.

would still be drinking under the influence -> driVing under the influence, LOL

In Germany, the police can do the blood draw themselves back at the station.

Probably won’t though. It’s a pain in the ass.

And you rejecting a breathalyzer is a pain in their ass. I was on a jury for exactly such a case and it did not sound like the cops hesitated for one second to draw the guys blood.

They definitely will. In the US, cops typically apply for an electronic warrant from the local on-call judge on the way to or at the hospital and a nurse will administer the blood draw. Go watch a couple DUI arrests on youtube, it's the most routine thing for the cops and medical staff.

I have to say, in this particular case it seems like a reasonable approach, but the phrase "an electronic warrant from the local on-call judge" seems to be somewhat at odds with the purported purpose of a warrant.

In what way is that at odds? A search warrant just a affidavit of why you think (the visible signs of intoxication and/or field tests) you're going to find a particular something (booze/drugs) in a particular place (your blood) that's signed off by a judge so they can take it by force (hold you down and draw your blood if they have to). There's really no hearing or particular extra procedure on top of that. If the warrant is invalid, you challenge it at your trial to get the evidence suppressed, but not when it is issued. Procedurally there's no difference presenting that document to sign in person or electronically. In the old days, you might have had to drive the judge's house in the middle of the to have them physically sign something urgent, but we have email now. As for judges being on-call, that's just how many courts choose to divide up the labor.

The purpose of a warrant isn't their concern. That's just an annoying implementation detail that the system is happy to ignore.

Depends a lot on the jurisdiction. In Austin, the police will declare "no-refusal" weekends (typically holidays) in which they declare in advance that they'll get a warrant for a blood draw in the case of refusals. If you look at the DUI arrest stats for those weekends, about half of them involve warrant based blood draws after breathalyzer refusals.

Does this imply on the other days one can refuse and not get their blood drawn? Otherwise, what's the point of a "no refusal weekend?"

It's up to the judgement of the officer whether to get a draw at other times.

Locking up a drunk driver is worth the hassle.

And that's fine. Breathalyzers and worse field sobriety tests are a sham.

If the cop is not willing to take you in for a blood draw he is fishing.

That's a narrative pushed by lawyers who are trying to get people out of DUIs.

Yes blood is better but if you blow a .2 no you are not sober.

If you think that the cops are 1/ properly trained 2/ will do the right thing 3/ have your best interest in mind you're going to have a bad time.

This is not about being sober (hopefully everyone is driving sober). This is about making sure that your rights are respected.

By the time the cop asks you do to any sort of test they have already made up their mind and now are trying to justify it. Do yourself a favor and ask for the blood test - that is usually administered by a trained medical professional.

I don't drink so no I'm not going to waste 4 hours being driven to a hospital to confirm that I have a BAC of 0.

your choice. people choose convenience every day with sometimes disastrous results.

You can refuse, but no, it's not the clever loophole you think it is. The police will obtain a warrant to take a blood draw, which is more conclusive than a breathalyzer.

I think here in California that you can be compelled to provide a blood sample in these instances.

They can blood draw you at the station iirc

Yes, though they typically do it at a hospital

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