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If a police officer asks a driver "Have you been drinking?", then the driver should either plead the fifth (and not answer the question), or answer the question truthfully. Let's assume the driver only answers yes or no for the moment, without divulging further details. Is there a legal definition or understanding which determines whether the driver answered truthfully? Is the question essentially equivalent to "Do you think you currently have any measurable blood alcohol level?"

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  • 11
    It means you should shut your fool mouth; youtube.com/watch?v=d-7o9xYp7eE
    – Richard
    Sep 4 at 18:29
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    I think "pleading the fifth" will just get you breathalysed. Sep 4 at 22:16
  • 2
    @Richard or this important piece of legal advice: youtube.com/watch?v=nWEpW6KOZDs
    – Tristan
    Sep 5 at 10:57
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    @DJClayworth in many circumstances you're going to get breathalyzed no matter how you answer.
    – phoog
    Sep 5 at 19:35
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    @DJClayworth - If the answer genuinely is "none", then you're probably just about OK to say "none", despite the usual admonitions about not talking to the coppers, in much the same way that you shouldn't say "I want a lawyer" to a question about whether a car belongs to you.
    – Richard
    Sep 5 at 20:06

5 Answers 5

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Words and sentences have their ordinary meaning, unless a special meaning has been assigned by the legislature or (sort of) by the courts. The legislature may therefore specifically define "deadly weapon" to not include a knife with a 2 inch blade; or it might so define a short blade knife as a "deadly weapon". This expression has no special meaning, therefore it literally means what you think it means. It is used to get detainees to contribute to probable cause, at least in the case of traffic stops. Similarly, the statement "it would help me a lot if I could look in your trunk" is simply a statement of personal opinion and does not require any response by you, nevertheless the expression is used to get people to voluntarily expose the illegal goods in their trunk.

The question is, grammatically speaking, quite vague, so if for some reason you say "no" and they still arrest you (beer breath? whatever their reason), the question is whether you willfully uttered an untruth. It would be incumbent on you (via your lawyer) to present the meaning that you had assumed at the time. If you assumed that the question was, literally, "have you consumed any amount of alcohol in the last 2 hours?" and you had a half glass of wine two hours ago, you lied. If you assumed that the question was "have you consumed enough alcohol that you are now over the legal limit", then you didn't lie.

The interpretation "any measurable blood alcohol level" is highly implausible, since one might measure .001% blood alcohol – it's not a crime to have measurable blood alcohol. The officer's intention is to get probably cause, and the detainee's interpretive strategy should be related to the legitimate interests of police officers in detaining drivers – about levels of alcohol consumption that constitute legally-impaired driving.

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    Why would it matter if you lie? You are under no obligation to answer police questions truthfully
    – Dale M
    Sep 4 at 6:49
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    @DaleM, according to a quick internet search using "[state name] statutes lying to police," it can be a violation to lie to law enforcement in many US states. I stopped checking after five states, but I suspect it's consistent across many.
    – fred_dot_u
    Sep 4 at 9:04
  • @fred_dot_u that might be so, but I don't imagine admitting to it or not will make a difference in this scenario as there will be a test regardless. Lying to the Police is something people are usually penalised for when it gives the Police the run around, such as a fake address etc...
    – moo
    Sep 4 at 17:37
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    @DaleM, my answer was directed at the question that the OP asked. You could ask a separate question on the legality of lying to police, indeed you could ask if it would be legal, and if doing something illegal would "matter".
    – user6726
    Sep 4 at 18:05
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    @DaleM — lying to police can be construed as obstruction, but more likely, it can be introduced as evidence of state of mind. Sep 5 at 15:21
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'Have you been drinking?' isn't a question with a strictly defined legal meaning. It's the opening gambit in a conversation intended to assess whether it's worth proceeding to a sobriety test.

And that's it. Further linguistic analysis is pointless.

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  • I disagree on this a little bit, the officer will have decided it is worth doing a sobriety test at the time of pulling the driver over, which is prior to asking the question. It is however the opening of a conversation. The response to the question will have no bearing on what tests are conducted. This is because humans have the ability to lie.
    – moo
    Sep 4 at 17:41
  • In the US you have the right to refuse the portable field sobriety test. The only test you are forced to do is the one done by the qualified state toxocologist
    – Neil Meyer
    Sep 5 at 15:25
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    @moo Your policemen always assume the reason for an erratic bit of driving before making the stop then? :-)
    – Laurence
    Sep 5 at 18:46
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    @moo I sincerely doubt that officers make that determination before the car stops in most cases. Traffic stops are routinely made for cause that doesn't imply intoxication, and those stops will only lead to a test if there is something to suggest intoxication, which could only arise during the interaction. Even erratic driving that would arouse suspicion of intoxication can have other causes, and a reasonable officer (yes, they exist) would abandon any plan to do a test if it became apparent that there was some other cause.
    – phoog
    Sep 5 at 19:43
  • @moo It's not that "yes" means sobriety tests and "no" means no such tests. It's that it starts a conversation during which the officer looks for all kinds of clues. Sep 6 at 7:06
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Have you been drinking means have you consumed any alcohol when you take it in a literal sense. Now to be a bit pedantic, you will have to excuse me because of the nature of the question.. they should ask "Have you been drinking any alcohol in the last 24 hours" if being literal, but that is not critical as it can be assumed the driver understands it is regarding alcohol, but this is not as literal as it seems. This is because:

  1. The officer will run tests to see if the driver is above or below the limit regardless of the response. If the driver says yes, but less than the legal limit then the officer still has to check the level of alcohol so it is actually just a yes or no question that has the same outcome. They would have seen something to want to pull over the driver to begin with.

  2. I don't recall a case where saying yes has reduced a penalty for a drunk driver, this is because when the officer says "Have you been drinking", it is as good as saying "I suspect you have been drinking and we are going to have to run some tests". most of the time.

To summarise : Have you been drinking? and Have you been drinking any alcohol in the last 24 hours? are almost interchangeable in these scenarios even though they have different literal meanings, but logically they mean the same thing and the officer might as well open with "I suspect you have been drinking and we are going to have to run some tests".

I think this is more a question about English than Law though. There is no special meaning legally that is any different from laymen's terms.

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    I would say the two are semantically equivalent (because the driver knows it's about alcohol) but not literally. If the doctor asks you "have you been drinking (enough)?" he asks literally the same question, but absolutely doesn't mean that you should have consumed alcohol prior to the visit.
    – PMF
    Sep 4 at 9:35
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    I'm sorry, but if I get pulled over at 8 on a Saturday night, I'm not going to answer "yes" if my most recent consumption of alcohol was on Friday night, and I don't imagine any police officer would expect anything different. And point 1 in this answer is incorrect. If you've been pulled over for going 15 miles over the limit, or for having a broken tail light, or for almost any other infraction, and you don't seem to have been drinking (smell, appearance, behavior), the officer isn't going to test you unless you answer "yes."
    – phoog
    Sep 5 at 19:50
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    The officer frequently won't run tests without evidence. Sometimes when they ask "have you been drinking" means "are you going to give me reason to test you, or am I going to have to go off my sense, which tell me you haven't?"
    – prosfilaes
    Sep 6 at 16:21
  • In a literal sense drinking a cup of coffee is drinking.
    – gnasher729
    Sep 7 at 6:01
  • To me, "have you been drinking" strongly implies drinking a sufficient amount, especially as part of a repetitive routine (e.g. take a sip, but the beer down, take another sip, repeat...). One single sip is not enough to reach the level of "I've been drinking", but how much is enough? It's hard to say. That's why laws define blood alcohol levels.
    – Brandin
    Sep 7 at 6:01
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Typically, the cop pulling you over is detaining you, which means they have a reasonable suspicion that a crime has been committed and is investigating. While you cannot leave the scene until the investigation is resolved, you do not have to answer any questions posed to you (save for providing identification) though statements against your interests, if made, can be used against you in the court of law (Cop: Sir, have you been drinking? Driver: Which one of you wants to know hic? are not in your interests).

It can be debatable if they can even use the statements against you in court because of Miranda rules, but there's probably a legal excuse to get them admitted. Really, the purpose of asking is many people (especially drunks. As Ron White recalled from a time he got drunk and police became involved "I had the right to remain silent, but I did not have the ability") would rather verbally defend themselves against the accusation and volunteer information. It could be "I had a glass of wine with dinner before going to see a 2 hour 45 minute (with previews) film and then drove home after we had ice cream and discussed the terrible film for another 45 minutes" or "I'm not as think as you drunk I am." In the later case, it might explain a BAC higher than 0 but less than the legal limit... as an adult would have probably metabolized the alcohol to a safe to drive BAC by that time. In the former, you'll surely be asked to step out of the car, sir.

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As Admiral Ackbar so famously said. It is a trap. You have the right to remain silent. If you use this right when dealing with police your chance at a better outcome improves drastically.

Dont speak to them. They are not your friends. You are not obligated to tell them anything. In fact you have the right not to say anything.

Nothing good can come from talking with them and no inference of your guilt can be made from you exercise your right to keep you trap shut.

What the miranda rights conveniently omits is that what you say can be used against you but nothing you say in an interrogation can be used in your defense.

There is literarly no way in which speaking to police in any way further than providing them with an alibi is in your own personal best interest.

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  • Unfortunately, taking the approach of not speaking to the police is likely subject you verbal harassment by some police who either don't understand your rights, or choose to ignore them. (Why don't you answer my questions! What are you trying to hide!)
    – Peter M
    Sep 5 at 18:19
  • Well that is exactly what a section 82 lawsuit is there for. That and dont leave the house without your dashcam.
    – Neil Meyer
    Sep 5 at 19:27
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    I've always answered "no" or even "not any alcohol recently" and once "I had a beer at lunch eight hours ago" and I've never been tested, much less cited. I'm sure it helps that I'm a fairly upper-middle-class-seeming white male.
    – phoog
    Sep 5 at 19:56
  • Lying to police is how good people go to jail. It is better just to remain silent.
    – Neil Meyer
    Sep 5 at 19:59
  • @NeilMeyer This is misleading, for lying to land somebody in jail it would have to either pervert the course of justice, or obstruct justice. The Police will take a breath test anyway so it makes no difference here. Although I was talking about UK, you might be talking about another country.
    – moo
    Sep 5 at 20:14

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