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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'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.
Laurence
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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 04 '22 at 17:41
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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 05 '22 at 15:25
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3@moo Your policemen always assume the reason for an erratic bit of driving before making the stop then? :-) – Laurence Sep 05 '22 at 18:46
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2@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 05 '22 at 19:43
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@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. – David Schwartz Sep 06 '22 at 07:06
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@moo I've been in a car that was stopped because of speeding when the officers were really looking out for drunk drivers. It's possible that someone was speeding and also drunk, but much more likely that they are sober and speeding. If you seem normal and reasonable and not intoxicated, they have no reason to do a sobriety test. If you say "yes" or otherwise sound drunk, then of course you'll get a sobriety test. – Esther Sep 06 '22 at 20:42
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@Esther depends where you are from, in UK they can if you committed any traffic offence. – moo Sep 06 '22 at 20:47
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@moo it's possible they can in the US as well, but probably won't unless there is a compelling reason to suspect intoxication (which "speeding" isn't really enough, especially when the person otherwise seems sober). An officer might ask though, as the start of a conversation in which they assess the sobriety of the driver. And possibly the driver will make it easy by saying "yes" or faltering and then saying "no" while looking guilty, or something like that. – Esther Sep 06 '22 at 20:50
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Yes this was my experience. "Have you been drinking?" started the conversation, in which the officer and I exchanged words as humans. Obviously, during that time (conversation probably took 30-60 seconds) she became convinced that I had not been drinking, and decided not to proceed to a test which probably would have taken much longer than that. By the way, at no point did I actually answer "no, ma'am" or anything like a direct answer to her question. Personally I talk to police, but I don't like to answer questions like it's some kind of medical exam question, giving just yes/no answers. – Brandin Sep 07 '22 at 06:37
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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.
user6726
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1Why would it matter if you lie? You are under no obligation to answer police questions truthfully – Dale M Sep 04 '22 at 06:49
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27@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 04 '22 at 09:04
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@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 04 '22 at 17:37
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2@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 04 '22 at 18:05
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3@DaleM — lying to police can be construed as obstruction, but more likely, it can be introduced as evidence of state of mind. – Michael Lorton Sep 05 '22 at 15:21
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Or you could hand them a business card that reads, "My name is {your name here.} I do not consent to any searches. I will answer no questions without an attorney present." – EvilSnack Sep 05 '22 at 19:39
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Why would it be incumbent on you to present the meaning that you had assumed at the time? If they want to charge you with obstruction or something similar, they have to prove beyond a reasonable doubt that your answer was objectively false. Your subjective mental state when you answered it is not relevant to the issue of whether your response was objectively false. What matter is what it objectively means and whether your answer was, given that meaning, obejctively false. If they can't prove that, they don't have a case regardless of what you thought. – David Schwartz Sep 06 '22 at 07:05
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@EvilSnack: Perhaps add "Failure to resist pressure to allow a search represents accession to coercion, rather than consent." – supercat Sep 06 '22 at 22:26
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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:
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.
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.
moo
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1I 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 04 '22 at 09:35
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2I'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 05 '22 at 19:50
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1The 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 06 '22 at 16:21
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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 07 '22 at 06:01
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@gnasher729 Yes, but also in a literal sense "I slept with your sister" just literally means that I fell unconscious in her general presence, it doesn't literally mean we did anything else. And a lot of other cases in language like this. I believe you could consider both of these cases euphemisms. You don't want to say "I had sex with with your sister", so you say instead "I slept with her" and hope that the other person will get what you really mean. You don't want to say directly "I drank (lots) of alchol" so you say instead "I drank" and similarly hope the same. – Brandin Sep 07 '22 at 06:05
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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.
hszmv
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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.
Neil Meyer
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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 05 '22 at 18:19
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Well that is exactly what a section 82 lawsuit is there for. That and dont leave the house without your dashcam. – Neil Meyer Sep 05 '22 at 19:27
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2I'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 05 '22 at 19:56
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Lying to police is how good people go to jail. It is better just to remain silent. – Neil Meyer Sep 05 '22 at 19:59
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@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 05 '22 at 20:14
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If you've been pulled over, the officer already has probable cause to ticket you. Sure, you can remain silent, but that's likely to get you the attention of additional very nervous cops with guns drawn (the first few seconds of a traffic stop are the most dangerous part of the average officer's career), a field sobriety test (you consented to this in advance when you accepted your driver's license), and tickets for everything the officer can think of. The only time that remaining silent is likely to help is if the purpose of the traffic stop is to arrest you for some other crime. – Mark Sep 05 '22 at 20:47
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https://law.stackexchange.com/questions/70262/in-the-us-are-you-allowed-to-refuse-a-mobile-breathalyzer-test - is what im basing my claims of. – Neil Meyer Sep 06 '22 at 09:06
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@NeilMeyer It sounds like your answer is predicated on the assumption that the person being pulled over is knowingly guilty of something? And that everyone would have to lie to the police if they said something? In that case, your advice makes sense. But here's a sample situation: Person is driving mildly slow and erratic on the highway late at night. Police officer pulls them over. No smell of alcohol. Conversation ensues. – Cobra Sep 07 '22 at 02:53
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Person says they worked late and visited a friend, did not drink but are sleepy. Officer believes them. Suggests they can take a short nap if they need and officer will stay by the roadside. I don't see how staying silent is any benefit in this situation. I suppose it does depend on the state of mind of the officer. A less lenient officer may not allow you to drive the car and require you to get a ride. There may be officers that would also cite or arrest for erratic driving in this case. – Cobra Sep 07 '22 at 02:53
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Yes it truly impossible to predict what police will do in any situation. I dont know why not talking to police as a general rule is notthe best approach. – Neil Meyer Sep 07 '22 at 09:37
Unless you can honestly and unequivocally say 'no', don't play games with the police. Juries almost always take their word at face value. You'll be at a disadvantage. This even includes alcohol-based mouthwash, btw, even if it was not ingested.
– Jim Zhou Sep 07 '22 at 14:28