Saturday, December 13, 2008


Take it from the authorities: Some tips on drinking and driving

When someone is stopped by the police for erratic driving, the officer may suspect that a little nipping was involved. Official procedure at this point varies from state to state, but in many states the driver is asked to blow into a breath analyzer, or "breathalyzer," as part of a "field sobriety test." In my state a refusal to submit to the breathalyzer results in an immediate six-month suspension of the driver's license. This doesn't, of course, prevent the driver from being arrested for "drivng under the influence" (DUI) or the more serious "driving while intoxicated" (DWI).

Over my years of studying the behavior of drunken sheriffs, police officers, judges and politicians, I've noted that they almost always refuse the breathalyzer test, opting instead for the license suspension.

Refusing the breath test will later come as a great relief to the defense attorney, who can then argue that at the time of his arrest Judge Branchwater had just been put on a new medication having severe and unforeseen side effects. On the other hand, if Judge Branchwater had taken the test and failed, the defense's only arguments would have to come down to whether the machine was accurate or whether the test had been properly administered.

When accosted by a patrolman, the authorities know what to do from their experiences in court or their background in the law. But your average Joe Blow doesn't, so he foolishly yields to the officer's suggestion to breathe into the breathalyzer.

A case in point

Nevertheless—and despite his advantages—Judge Peter Tourison found himself last March in a New Jersey police station waiting to take a breath test. Here's what happened—

Tourison tried to apply Chapstick to his lips, which delayed the Alcotest because nothing can be in or around a driver's mouth for 20 minutes before the test. When the police took away the Chapstick, Tourison used another tube before it, too, was confiscated.

Then, when a patrolman turned his back, Tourison popped a penny in his mouth.

It's an old trick, and it's one Tourison ... should know. A penny won't affect the machine, but any object in a person's mouth may show that the officer did not perform a proper oral inspection.

Further, Tourison didn't blow properly into the Alcotest machine, so it took seven tries before a confirmed reading could be obtained.

I must confess I was unfamiliar with any of these techniques.

Well, it did the judge no good—or at least not enough—because he still blew a .08 after all that delay. He pled guilty to the DWI charge and then had to go before the state's Advisory Committee on Judicial Conduct for being a lawbreaker and a reprobate and for making the other justices look bad.

His attorney argued that he should receive a reprimand, since that is what New Jersey judges of similar quality had received. But the committee members were incensed by Tourison's antics at the police station.

His attorney responded that—

they were just "stupid things" people do when they are drunk. "I don't see the penny as an aggravating factor," he said. "Look at the 1990 case of Justice [Robert] Clifford, charged with DWI, who refused the Breathalyzer test. His refusal was never considered an aggravating factor by the Supreme Court."

But the Vice Chairman of the committee drew the proper distinction, saying that "refusing a test and 'attempting to fix' a test were two different things."

Before you get on the road

So if you are unwise enough to be caught drinking and driving this holiday season, take these tips from the pros—


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