USA - D.W.I.: To Blow or Not to Blow?

[AmphetuhMINE]

Know your rights and know what is in your best interest. Whether or not you choose to consent to a Breathalyzer/sobriety test should depend on a number of considerations. This post will detail different scenarios and inform you of your best course of action from a legal perspective.

You're driving home from a bar, a friends party, or another event at which you've consumed alcohol. On your way, you are pulled over. After asking for your license and registration, the officer asks you whether you've been drinking tonight.

When the officer asks "have you been drinking tonight?", should I admit that I have been drinking or should I flatly deny any consumption of alcohol?
If the officer asks you whether you've been drinking, that is usually an indication that he has some reason to believe that you have been. The officer may have noticed you swerving between lanes, delayed response time at traffic lights, slurred speech or he may smell alcohol on your breath. Either way, the officer already knows you've been drinking. The only question left is "how much?". Your best course of action is to admit that you've been drinking flat out. This will give you credibility with the officer. Undoubtedly, his next question will be "how much?". Use the formula: 1 drink per hour. You can say "I've had about 3 drinks over the past 3 hours," etc. If you've been drinking excessively, don't admit to that.

The officer informs you that he would like to perform a field test to determine your level of intoxication. The officer will indicate that he intends to administer either a field sobriety test or a field Breathalyzer test and asks you if you will consent to taking the test.

Should I consent to performing a field sobriety test?
Field sobriety tests are used by police officers as a preliminary gauge to assess the degree of your impairment. Examples of field sobriety tests include touching your fingers to your nose, walking in a straight line, standing on one foot, reciting the alphabet, and following a flashlight with your eyes. If you do not feel intoxicated and you truly believe that your wits have not been compromised by alcohol, go ahead and consent to performing the tests. If you can demonstrate that you are not intoxicated and capable of driving safely, the officer will let you go. There is no probable cause to arrest you since the officer has now dispelled his suspicions of your impairment. Be careful though - one of the effects of alcohol is an increase in confidence. The alcohol may cause you to become overly confident in your abilities and you're more likely to think that you're fine when you really are not. Err on the side of caution here. If you're undoubtedly drunk and know that you will fail the field sobriety test, refuse to take it. Refusing to take the test will give the police probable cause to arrest you and they almost certainly will, but refusal is not tantamount to an admission of guilt. If you fail the field sobriety test, your poor performance can be used against you to prove your guilt. Failure of the field sobriety test gives the police probable cause to arrest you and they almost certainly will. If both refusing to take the test and failing the test result in your arrest, why is it better to refuse to take it? You have a right to refuse to take the field sobriety test, so your refusal to take it cannot be used as evidence against you, whereas failing the field sobriety test provides the state with evidence of your guilt.

Should I consent to taking a field Breathalyzer test?
Some police departments equip their patrol units with field Breathalyzer units, which can be used at the scene of the traffic stop to determine a driver's blood alcohol content. The field Breathalyzer test will often be used in lieu of field sobriety tests, so many of the same factors that factor into your decision of whether or not to consent to performing a field sobriety test will be relevant to your decision of whether or not to consent to taking a field Breathalyzer test. However, you should note that the field Breathalyzer test is less subjective than the field sobriety test, which in turn gives you less discretion in deciding whether or not you should take it. With the field Breathalyzer test, you should only consider your alcohol consumption and not the effect the alcohol is having on you. Regardless of whether you can "hold your liquor" and feel perfectly sober, the Breathalyzer measures your blood alcohol content. If your blood alcohol content is above a certain percentage (in most states it's .08%), you are deemed to be legally intoxicated. Despite variations between individuals based on weight, metabolism, and time of consumption, a good rule to follow is the 1 drink per hour rule. If you have only had 1 drink in the past hour (or 2 or less drinks in the past 2 hours, etc.), you should consent to the field Breathalyzer test. Absent further investigation, if you consent to the test and the results indicate that your blood alcohol content is within a legal range, the police will not have probable cause to arrest you and will have to let you go. However, If you have had more than 1 drink in the past hour (or more than 2 drinks in the past 2 hours, etc.), you should refuse to take the field Breathalyzer test as this will conclusively provide police with probable cause to arrest you. Refusal in and of itself will provide the police with sufficient probable cause to arrest you, and they probably will do so, but, as in the case of field sobriety tests, there still is no concrete evidence of your guilt. While the Breathalyzer test is more objective than the field sobriety test, the consequences of mistakenly choosing to consent to taking it are less severe. In most jurisdictions, the results of the field Breathalyzer test are considered to be too inaccurate to be used as evidence against you in court.

Can I choose whether I want to take the field sobriety test or the field Breathalyzer test?
No. You do not have a right to choose what kind of field test you take. The officer will inform you of whether they intend to administer a field sobriety test or a field Breathalyzer test. The only choice you have at that point is whether or not you will consent to taking the selected test.

You have either failed the field sobriety test, failed the field Breathalyzer test, refused to take the field sobriety test or refused to take the field Breathalyzer test and you have been arrested for D.W.I. You are transported to the police station, booked, and then asked to consent to an official Breathalyzer test.

Should I consent to taking the official Breathalyzer test?
Invariably, some time will have passed between the time you are pulled over and the time you are asked to consent to taking the official Breathalyzer test at the police station. When deciding whether or not to consent to taking the official Breathalyzer test, you should still abide by the 1 drink per hour rule, but now also take into account the added time that has passed since your arrest. If you consumed the alcohol a long time before you were pulled over, then the extra time will have given your body the opportunity to process the alcohol out of your system thus reducing your blood alcohol content. Conversely, if you consumed the alcohol shortly before being pulled over, then the extra time will have given your body the opportunity to absorb the alcohol in your stomach thus raising your blood alcohol content. In simple terms: divide the number of drinks you've had by the number of hours that have passed from the time you began drinking until the time you are asked to take the official Breathalyzer test at the police station. If the number you are left with is less than or equal to 1, you should take the official Breathalyzer test. If the official Breathalyzer test results reveal that your blood alcohol content is within a legal range, then you are not guilty of D.W.I. However, if after dividing the number of drinks consumed by the number of hours passed you are left with a number greater than 1, do not consent to taking the official Breathalyzer test. Err on the side of caution at this stage as well. If you take the official Breathalyzer test and the results reveal that your blood alcohol content is above the legal limit, then the state has effectively proven you guilty of D.W.I. Unlike the results of the field Breathalyzer test, the results of the official Breathalyzer test, administered by trained personnel at the police station on sophisticated machines, are deemed to be sufficiently reliable to be used as evidence against you in court. A result that places your blood alcohol content above the legal limit is conclusive proof of your guilt.

What are the consequences of refusing to consent to taking the official Breathalyzer test?
Since driving is a privilege, not a right, your driving privileges may be suspended or revoked by your failure to comply with Department of Motor Vehicle rules and regulations. In most states, the Department of Motor vehicles issues driver's licenses on the condition that you will submit to a Breathalyzer test if there is probable cause to believe you were operating your motor vehicle under the influence of alcohol. Therefore, your driving privileges are automatically suspended (and in some cases revoked) if you refuse to consent to a Breathalyzer test. Practically speaking, refusing to consent to a Breathalyzer test will have the same effect as a D.W.I conviction for purposes of your driving privileges. However, for purposes of your criminal record, the considerations are very different. Since D.W.I. is a crime (either a misdemeanor or a felony), the state still has to prove you guilty beyond a reasonable doubt. Without the Breathalyzer test proving that your blood alcohol content exceeded the legal limit, the state cannot prove you guilty of statutory D.W.I. That doesn't meant that you're off the hook though - the state can still charge you with common law D.W.I., which does not require proof of your blood alcohol content. To prove you guilty of common law D.W.I., the state will have to call the police officer who arrested you as a witness to testify that he either smelled alcohol on your breath, noticed that you slurred your speech, that your eyes were bloodshot and watery, etc. Also, the state could show the court the videotape of you on the night of your arrest so that the judge or the jury can arrive at their own conclusions about whether or not you appeared to be intoxicated. Common law D.W.I is more challenging for the state to prove guilt because, unlike the case in which there is a positive result from the official Breathalyzer test that conclusively proves guilt, there is no conclusive evidence of guilt for common law D.W.I. and the outcomes will often vary based on the strengths of the attorneys, the plausibility of the claims, and the personalities of the judges or juries.

NOTE: This post only deals with alcohol-related D.W.I. and the statements made above may not be applicable or appropriate when considered outside of that context. For drivers, there still exists the possibility of being charged with Driving While Impaired or Intoxicated while under the influence of a substance other than alcohol. These substances can include certain prescription and over-the-counter medications and illicit drugs.

Reputation Comments on this post:

	Fantastic contribution. Thanks for contributing your time.
	Great advice. Obviously well reasoned and very persuasive.
	valuable and informed post, gives lots of information, clear discussion of options
	Poor Legal Advice. Everyone should know their local laws which heavily affect these decisions.

[ex-junkie]

swims older brother blew into the breathalyzer, but didnt breathe enough to register a reading. his excuse was that he was asthmatic. he got a certificate from the doctor to prove it.

however, they took him to the hospital to get a blood test and his test came back well over the limit. this was his second offence. he lost his license for 3 years, and lost his job as a car salesman. around the same time his missus left him, took the kid, and now they live 50 minutes away from him.

he complains that life is tough... and doesnt seem to have learnt from his mistake.

drinking and driving is a very silly risk to take.

Reputation Comments on this post:

Brought out a great point that was overlooked in the original post

[bcubed]

Should I consent to taking the official Breathalyzer test?

Lizard would heartily disagree with the advice given here, which makes it sound like refusal is a bit better than taking the test...if one knows one's drunk. At least it depends on the state. In Pennsylvaina, refusal to take the test is treated more harshly than DWI by itself (automatic 1yr lisc. suspension, for instance).

Also, Lizard's opinion is that field sobriety tests are designed to be failed. (For example, he's seen the "horizontal gaze nystigmus" test done where the officer deliberately "pauses" at one end or other, hoping to "catch" the motorist anticipating...NOT an approved sobriety check, but what the hey.) As such, he'd not consent to such...unless he felt the time consumed in testing might allow him to metabolize enough booze to get under the limit.

Reputation Comments on this post:

Clearly did not read original post in its entirety. Brough up issues that were irrelevant to topic.

[AmphetuhMINE]

What a sad story. Ex-junkie brings up a very good point that I overlooked: the best way to avoid criminal liability for drunk driving is just not to do it in the first place. D.W.I. laws are in place for a reason and it is in your best interest to obey them for many reasons. In addition to avoiding criminal and civil liability, you're also reducing the risk that you or another driver will be injured or killed in a DWI-related accident.

AmphetuhMINE added 7 Minutes and 40 Seconds later...

If you look at the original post, I address the issue of automatic license suspension for a refusal to consent to a Breathalyzer test. The Department of Motor Vehicles automatically suspends or revokes your driver's license because you have not complied with your agreement to submit to such tests as a condition to retaining your driving privileges. The point was that we're primarily concerned with reducing or eliminating CRIMINAL liability. License suspension may or may not be conditioned on any criminal adjudication.

Legally speaking, field sobriety tests are not necessarily designed to be failed but rather they're designed to give police officers probable cause to effectuate an arrest of a DWI suspect. If the test are not fairly administered, that could be a problem, but there needs to be a system in place by which law enforcement can reliably apprehend drivers that pose a danger to other motorists and pedestrians.

Originally Posted by bcubed

Lizard would heartily disagree with the advice given here, which makes it sound like refusal is a bit better than taking the test...if one knows one's drunk. At least it depends on the state. In Pennsylvaina, refusal to take the test is treated more harshly than DWI by itself (automatic 1yr lisc. suspension, for instance).

Also, Lizard's opinion is that field sobriety tests are designed to be failed. (For example, he's seen the "horizontal gaze nystigmus" test done where the officer deliberately "pauses" at one end or other, hoping to "catch" the motorist anticipating...NOT an approved sobriety check, but what the hey.) As such, he'd not consent to such...unless he felt the time consumed in testing might allow him to metabolize enough booze to get under the limit.

[DopinDan]

Most Public Officials Refuse Breathalyzer Tests


Public records examined by the Austin American-Statesman show that most elected officials who have been stopped on suspicion of driving while intoxicated in recent years have declined to consent to a blood or breath sample.

The newspaper reported Sunday that it turned up cases involving more than a dozen elected officials in Texas -- including representatives, senators, judges and commissioners -- in which police on the scene asked for a sample to determine whether the driver's blood-alcohol concentration exceeded the 0.08 legal limit.

Except for two cases, both of which occurred outside the state, the politicians refused, the paper reported.

"Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent," said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

Texas leads the nation in the number of alcohol-related traffic deaths, and about 40 percent of all the state's traffic fatalities are alcohol-related, according to the National Highway Traffic Safety Administration. However, the state is one of only 10 prohibiting sobriety checkpoints, and it has yet to join the increasing number of states that have made breath and blood collection mandatory in suspected DWI arrests. At least 17 states now treat refusal as a separate crime.

"Many people refuse to blow; it's a growing problem in Texas," said Karen Housewright, executive director of Texas Mothers Against Drunk Driving. "But we like to think our elected officials would behave as role models and hold themselves to a higher standard."

Police and prosecutors say politicians are among savvy citizens such as Texas Longhorns baseball coach Augie Garrido, who declined to give a breath sample when he was arrested Jan. 17 on suspicion of DWI.

"I'd always heard from attorneys that you should refuse," said state Rep. Mike Krusee, who was pulled over last year in Austin after police said they observed him driving erratically.

Krusee disputes accounts by officers who say he failed three roadside sobriety tests.

"I was shocked. I encourage people to look at the dashboard video," he said.

Krusee refused to blow into a Breathalyzer. His DWI case was dismissed in November.

Defense attorneys say giving breath or blood can only hurt their clients' cases. Even a blood-alcohol level below the legal limit doesn't guarantee the driver will be released, said Jamie Spencer, an Austin lawyer specializing in DWI defense, who called it a "lose-lose proposition."

Drivers who refuse chemical tests are supposed to have their licenses suspended for 180 days -- compared with only 90 days if they submit and fail. But the suspension can be challenged before an administrative judge and, if denied, appealed again before a county judge.

The defendant, meanwhile, can keep driving by obtaining a temporary license. Krusee said he used one until his DWI case was dropped for lack of evidence, at which point his permanent license was returned.

"There are so many loopholes for someone to get his license back," said Tom Gaylor of the Texas Municipal Police Association. "It's a waste of time."


Updated 7:15 AM CDT, Mon, Feb 2, 2009
http://www.nbcdfw.com/news/local/Mos...zer-Tests.html

SWIM believes it really depends on knowing how the legal system works in the givin state.

Reputation Comments on this post:

Great post - right on topic

[terrapinzflyer]

First, Swim in no way condones driving impaired- hes lost way to many friends- both those driving impaired and those victims of folks driving impaired.
That said, swim also does not believe in the hard and fast rules set re drunk driving. (ie: .08 BAL means totally different things for dfifferent people, and breathlyzers are NOT as good as they purport.

So, a few points. FL years ago sent dui response crews that videotaped the entire ordeal- until a lawyer started having 100% sucess in defending DUI because of it. Main reason- if you burp within several minutes of a breathlyzer it skews the result- police were required to watch the suspect for 3 mins before the test to make sure they didn't burp- and the video always proved they didn't
Recently a (i believe state) supreme court ruled that the makers of breatlyzers must reveal the source code- because otherwise how can some defend themselves against a machine no one knows how it operates?
Third- a police trick is to ask one to "recite the alphabet backwards". They do not expect anyone to do it, they expect a drunk to say "I can't do that sober"

But hey- if swiy gets pulled for a legitimate DUI- be real and take your punishment. Its stupid to do. Swim will defend your rights to the max right up until you do something that infringes on others rights- and dui is definitely one of those things.

[bcubed]

The point was that we're primarily concerned with reducing or eliminating CRIMINAL liability. License suspension may or may not be conditioned on any criminal adjudication.

Actually, the thread title is "to blow or not to blow." Thus, I'd think this decision ought be made on the totality of the penalties. And frankly, most people would agree that the civil penalties (loss of license, increased cost/inability to insure, etc) are more severe than the criminal penalties.
From the PA Motor Vehicle Code, Title 75, Chapter 38:

§ 3804. Penalties. (a) General impairment.--Except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:
(1) For a first offense, to:
(i) undergo a mandatory minimum term of six months' probation;
(ii) pay a fine of $300;
(iii) attend an alcohol highway safety school approved by the department; and
(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).

so, $300 and 6-12 mo. probation for a first-time offense; which can be expeunged for those w/o record upon completion of ARD.

The CIVIL penalty is 30-60 days' (dependant on BAC%) liscence revocation. Further, completion of ARD means that the DWI is expunged, and thus never happened, for the purpose of criminal penalties (should SWIY get stopped 2 years' later, sentencing guidelines are for a FIRST offense.

If SWIY does as AmphetuhMINE suggests, he's looking at one year, vs. 30-60 days of suspension. Additionally, as AmphetuhMINE suggests refusing the BAC only when fairly certain of being drunk, then SWIY is likely to lose a criminal case regardless, as there is good chance of sufficient evidence to conivct anyway (not the least whatever SWIY was doing to get pulled over.)

To top it off, the advice he gives (refuse if you've had >1 drink/hour) would result in plenty of SWIMs refusing a test that may well EXONERATE SWIY! In fact, one might take a one-year suspension AND get hit with a DWI that they could have "squeaked in" UNDER the limit, had they taken the test!

So, if SWIY is willing to take an excess 10-11 months' license suspension in order to have a "snowball's chance" of avoiding a $300 fine and 6-12 mos' probation, go for it.

For everyone else (at least those caught in PA), this is exceedingly poor advice, unless there are truly special circumstances (such as being an elected gov't official, or something).

bcubed added 47 Minutes and 28 Seconds later...

Further, >= 1drink/hr does NOT make SWIY drunk! Between 1-2 drinks/hr is the metabolic rate, meaning 1 drink/hr effectively "maintains" a given BAC. One has to run a "surplus" of alcohol consumption to push BAC up to 0.08.

From Univ. of Oklahoma's BAC calculator (which, as it's designed to discourage DWIs, is probably fairly conservative):

Lizard's weight: 200 lbs.
Drinks: 5 (X12 oz. beer)
How many hours: 2
BAC: 0.06

Thus, had Lizard taken AmphetuhMINE's advice, he'd be looking at no driving for a year, plus a likely DWI conviction that a breathalyzer would have exonerated him from! (Not to mention that it'd take around 1hr additional to get to a hospital (blood) or police station (breathalyzer), during which time he'd continue to metabolize ethanol.)

Reputation Comments on this post:

	This post is reactionary and ill-reasoned. The advice given is contrary to sound judgment.
	seems to miss the point of earlier posts

[AmphetuhMINE]

I'm not sure bcubed is reading the right post. Again, there is not, nor was there ever, any dispute as to the collateral consequences of refusing to consent to the test. And there is not, nor was there ever, any dispute that these collateral consequences can be quite severe. Without a doubt, the loss of driving privileges and the fines that may result from a refusal to consent to the test can be extremely devastating to particular individuals. But this provides further incentives for people not to drive while drunk.

As significant and potentially devastating as the collateral consequences of refusing to consent to a Breathalyzer test may be, they do not equate to criminal liability. Bcubed posits that "frankly, most people would agree that the civil penalties . . . are more severe than the criminal penalties," but it is difficult to see why bcubed believes most people would agree with this assertion. Criminal liability is simply debilitating to most, if not all, people. Crimes fall into one of two categories: misdemeanors and felonies. Depending on local law and the circumstances of the offense, D.W.I. can be charged as either one. Either way, a conviction results in the offender having a criminal record, which will be a lifelong problem for anyone looking for a job, applying for a mortgage, or doing just about everything else that requires official approval. An individual's criminal record is permanent once they have reached the age of majority. By bcubed's own admission, the cite to the Pennsylvania Motor Vehicle Code establishes a means for an individual to get the D.W.I. expunged from his driving record. In many respects, the civil law is much more foregiving than the criminal law. While the immediate consequences of a refusal to consent to a Breathalyzer may be devastating to an individual, the consequences are not permanent. Compare that to a criminal D.W.I. conviction, which no amount of defensive driving classes or successful completion of a probationary period will expunge. Since the long term consequences of a criminal conviction are so severe, it seems that most people would agree that they are far more severe than the civil penalties.

Bcubed then goes on to say that "[a]dditionally, as AmphetuhMINE suggests, refusing the BAC (sic.) only when fairly certain of being drunk, then SWIY is likely to lose a criminal case regardless, as there is a good chance of sufficient evidence to convict anyway[.]" However, it is clear that you have a far better chance of winning your case if you force the government to charge you with common law D.W.I. then if you take the Breathalyzer and give the government all the evidence they need to conclusively prove your guilt. Furthermore, forcing the government to prove you guilty beyond a reasonable doubt for common law D.W.I. significantly improves one's bargaining power pretrial. The time, effort, and expense of holding a trial, taking police officers off of active duty to testify, and preparing a case in chief is simply not worth it for the government. They are much more likely to make a plea offer of a non-criminal offense (such as an infraction or a violation) so that you can plead guilty and still have no criminal record.

Bcubed's next assertion, which can be described as nothing less than an impassioned and personal attack, is "[t]o top it off, the advice [AmphetuhMINE] gives (refuse if you've had >1 drink/hour) would result in plenty of SWIMs refusing a test that may be EXONERATE SWIY!" Yes, there is a chance that you will skirt by the Breathalyzer test and come up with a result that is within the legally acceptable range. However, it is not advisable to that this risk. In fact, going for broke in this fashion would simply be reckless. It is not worth risking a lifelong criminal designation to get back on the road six months sooner. What bcubed refers to as "exceedingly poor advice" is in fact the safest and most reliable way to shield oneself from criminal liability. If you do not believe this author, please consult your attorney.

Finally, bcubed contends that ">1 drink/hour does NOT make SWIY drunk!" This is not a helpful statement because the notion of being "drunk" is entirely subjective and is not even a consideration when considering statutory D.W.I. All that matter is whether the individual is legally intoxicated, meaning he has a blood alcohol content above .08%. While bcubed kindly provides us with an academic study that sets forth a mathematical equation to calculate blood alcohol content, that too is ultimately not helpful to this discussion. It is simply impractical to consult mathematical equations when one is under the stress of having been arrested and booked at the police station and is forced to make a decision on the spot. It is never good advice to give somebody a problem solving technique that they cannot be expected to use in practice. The advice given in the original post was intended to shield individuals from criminal liability and that consideration more than other other presents the most serious and longlasting consequences.

[HelpfulMD]

It is apparent that AmphetuhMINE is an experienced and effective attorney. Thank you for taking the time to provide such detailed and well-reasoned guidance on this topic. Readers would be wise to take AmphetuhMINE's advice to heart.

I too am a professional who has recently dedicated considerable time in sharing my knowledge and experience with this community and I am glad to see that I am in good company.

[bcubed]

Originally Posted by AmphetuhMINE

Bcubed posits that "frankly, most people would agree that the civil penalties . . . are more severe than the criminal penalties," but it is difficult to see why bcubed believes most people would agree with this assertion.

Frankly, I believe "misdomeanor that I can likely have expunged" << "no car for 12 mo." I am of the opinion that most would agree with me; perhaps so, perhaps not. The point is, you promise a slight improvement in beating a criminal rap for a certain increase in civil penalties--and neglect to inform the readers of the rather Faustian bargain you'd make on SWItheir behalf! I'm just pointing out the trade-off, for swimmers to note and proceed as desired.

However, it is clear that you have a far [emphasis added] better chance of winning your case if you force the government to charge you with common law D.W.I. then if you take the Breathalyzer and give the government all the evidence they need to conclusively prove your guilt.

Are you aware, perchance, on the win% of "BAC refused" cases--in PA? If it's > 15%, I'll eat my hat. THIS is what I'm supposed to accept an extra 10-11 month's lisc. revocation for?

Finally, bcubed contends that ">1 drink/hour does NOT make SWIY drunk!" This is not a helpful statement because..."drunk" is entirely subjective and is not even a consideration when considering statutory D.W.I. All that matter is whether the individual is legally intoxicated, meaning he has a blood alcohol content above .08%.

Considering the post AmphetuhMINE's quoting was the 7th, on a thread about DWI, in the "Law and Order" sub-forum, it seemed "patent," given the context, it was in reference to being "legally intoxicated" (for our purposes, W/R/T operation of a motor vehicle, not public intox). For the exclusive benefit of those incapable of reading contextually, change "drunk" to ">= 0.08."

It is never good advice to give somebody a problem solving technique that they cannot be expected to use in practice.

Not hard at all, really.

Big boy like Lizard, takes ~4 drinks "surplus" to get him drunk. Being conservative, he metabolizes 1 drink per hour. Now, he's going to watch the Penguins play tonight at the bar. Game takes ~3 hrs; he has to limit himself to < 7 drinks (4 surplus + 3 hours), and ideally ought to kick 'round the bar for :45 or so before leaving.

4+3=7; not too difficult, right?

Rest assured my criticism of your "1 drink/hr" wasn't personal; it was meant to reduce the rather copius harm that might befall anyone who atempted to use it! Using the reducio ad absurdium line of thought, if SWIY had one beer, thirty minutes ago, he "ought" (per amphentuMINE) refuse the BAC!

Now, if we're generous and assume a 15% chance of "beating the rap," then one ought NEVER refuse the BAC when there's >= 15% chance of blowing under 0.08 anyways...or SWIY'd be assuming the greater civil penalties for naught. I vigorously posit that "1 drink/hr" would result in many, many instances where BAC refusal would do just that.

Frankly, the only people who would benefit from a mass implementation of this strategy would be lawyers, as this strategy would tend to require much time and money exerted in legal defense (another reason to eschew it.) I wonder as to Amphetuhmine's chosen profession?

As always, YMMV, your STATE may vary...but please, please DON'T try this in PA!

EDIT: Just caught this last one.

By bcubed's own admission, the cite to the Pennsylvania Motor Vehicle Code establishes a means for an individual to get the D.W.I. expunged from his driving record. In many respects, the civil law is much more foregiving than the criminal law.

Uh, no.

ARD (Accelerated rehabilitativ disposition) gets the CRIMINAL charge expunged; the moving violation stays. (But once you fight the DWI, and lose, you've lost your shot at ARD.) Thus, amphetuhMINE's legal advice is based on proveably false assumtions. But don't take my word for it:

Under the rules of this program, the accused does not admit guilt, but generally must agree to pay fines, restitution, and serve a term of probation among other conditions. In exchange for abiding by the conditions of the ARD program, the accused can earn a complete dismissal of the criminal charges.

I could care less about a personality clash; what I care about is this site's dedication to harem reduction, and the fact that amphetuhMINE's advice knowingly makes a trade-off, accepting harsher civil penalties for the chance to "fight" the criminal--and then he neglects to mention this fact. Ethically, his advice needs 2 disclaimers:

DISCLAIMER 1: Acting on this advice WILL increase SWIY's civil liability in exchange for a chance at lessened criminal liability.
DISCLAIMER 2: The validity of this advice WILL vary depending upon the rules of the state in which SWIY resides.

[AmphetuhMINE]

I'm afraid this discussion has been reduced to bickering, which I had hoped to avoid because this is a serious topic worthy of serious discussion. It is clear to me that the arguments on both sides have been more than adequately addressed and I therefore rest my case on the record. I would be happy to discuss any new issues raised by bcubed or anyone else interested in this topic.

I do take issue with one aspect of bcubed's last post that I feel I need to speak out on, if for no reason other than personal indignation. I was deeply insulted by bcubed's suggestion that I have alterior motives for taking the positions I have taken, the insinuation being that I am taking these positions because it would result in spurious litigation, which would ultimately benefit me as a lawyer. This could not be further from the truth. I assure you that there are more cost-effective and much faster means of advertising. I have devoted much of my career to public service. I posted this thread because I am genuinely concerned that members of this community be informed of the legal consequences of their choices so that they can exercise prudence and make educated decisions. I welcome honest debate, but I will not tolerate unwarranted personal attacks.

[bcubed]

I'm sorry SWIamp feels persecuted. If SWIamp can point to specific instances in which I've attacked him personally (as opposed to attacking weak arguments, which I feel both a right and duty as a DF member), I'll publicly apologise. (And the allusions to you profession were more of a "if all you have's a hammer, everything looks like a nail" POV, as opposed to questioning motives). A persual of my 900+ posts reveals very few posters who felt my posts out-of-line.

The reason I'm pushing this (and enduring the slings, arrows, and -rep of outrageous fortune) is: posting legal advice and insisting it applies, euqally, to all 50 states is dangerously asinine! Consider, SWIamp, if a Pennsylvania resident were to seriously take the advice of someone so unfamiliar with PA law as to be clueless as to the nature of ARD.

In a forum where repurcussions can be life and death, blanket statements that leave out a significant minority are dangerous and irresponsible. If I post, "50mg is a good starting dose of Morphine," it doesn't matter if this advice applies to 49 out of 50 people: if it causes harm for the 1 in 50, it is dangerous and irresponsible for me to post it!

Similarly, it doesn't matter if your legal advice is good in 49 of 50 states: if it causes severe legal repurcussions for only 1 state, it's dangerous and irresponsible to *insist* it applies universally! (Note that I've been careful to talk ONLY of PA law.) So please, PA residents: seriously consider the worth of legal advice coming from someone wholly ignorant of ARD...and who knows what else!

My work is done here: PA residents have been duely cautioned. -Rep to your heart's content.

P.S. Perhaps, if you don't want "bickering," you shouldn't fire off stuff like "I'm not sure bcubed is reading the right post." (I'm generally harmless unless pissed off, but if you start taking pot-shots, don't be surprised when I come in w/ both barrels.)

[AmphetuhMINE]

My workweek has started so I'm going to busy dealing with this stuff in real life. I see no point in continuing the ongoing argument as it now has nothing to do with the original post. I hope the thread is more useful to readers that it was for bcubed. If there are any new issues you can think of dealing with the original post and you like to discuss it, I am more than happy to indulge.

[Pondlife]

I'm closing this thread as I don't foresee any further productive discussion.