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Can you outsmart a DUI test?

Posted on Sep 6th, 2022 by Jesse Kleis 293 Views

There are some people who simply know that they are the smartest person in the room and that might very well be true.  There are people with the gift of thinking quickly and deriving answers faster than others.  There are people who simply have a great deal of knowledge and can usher items up from back in the recesses to utter pure facts and that magnifies their smarts. 

Of the several factors to consider before making the smartest-in-the-room claim, take this quiz:

  • Are you the only person in the room?

Answer YES: skip to the next paragraph. NO: continue to next question.

  • Is the room an 8’ x 14’ semi-private with penciled or scratched décor fitted with cots or bunkbeds and a toilet?

Answer YES: continue to next questions.  NO: continue to next questions.

  • When you can get to a phone, do you still have someone you can call for carrying out your plan for help who is not a relative?
  • Are the persons you are most likely to call in the room with you or the same building with you?

YES: Time to accept that you are not that smart.  NO:  There might be hope for you.

Unfortunately, not all smart people know their limits when it comes to consuming alcohol.  If you find yourself in cuffs and riding to the nearest lockup facility while your car is towed from its position to a storage lot (unless someone else capable of driving legally could take it home for you), you were over 0.08 Blood Alcohol Content (BAC).  For whatever reason you triggered the law enforcement radar by driving poorly or not having your license tag current, or not having a taillight.  Regardless, you will be in lock-up and face a DUI charge pending final results of a real blood test generated BAC.  They won’t release you until two conditions are met:

  • You have sobered up to a miniscule 0.02 BAC
  • An officer of the court is available to make your reservation date for arraignment.

This situation is complicated if it occurs over a weekend or a long weekend where you could be held until a court advocate (judge or appointee) comes in to assign the arraignment date.  The O.R. release occurs if you have no other outstanding warrants or issues and you have agreed to be at the court for your arraignment hearing (where the charges are officially read).  Part of the release from jail after being arrested for a DUI (no injury or public damage caused) is granted on Your Own Recognizance (O.R.). There are plenty of papers to sign that detail your agreement to appear at an arraignment – a formal registration of charges.  You may have had a bail bondsman post a bond to prevent you the hassle of interpreting or handling the O.R. paperwork and possibly releasing you upon achieving a legal blood alcohol limit to return to the public.

Mr. Nice Guy  advises that you obtain legal assistance in the case of a DUI, where severe penalties can impact your future.  Bail bondsmen are great to get you out and back to work when you need to be there, but that’s just the beginning of your legal dilemma when it comes to a DUI or DWI.  Take the advice of someone smarter than you, call (844)-4002245 and get those answers for yourself or a loved one. 

Improving Your Smarts

Let us take a moment to learn a bit of Latin.  Here’s a famous phrase that explains the “I didn’t know,” answer:  Ignorantia Juris non-excusat or ignorantia legis neminem excusat (Latin for “ignorance of the law excuses not” and “ignorance of the law excuses no one”). This is a modern legal principle holding that a person who is unaware of a law may not escape liability for violating that law simply because they were unaware of it.  DUI is a zero-tolerance law and that means 0.08 BAC receives punishment and all punishment is the same for the charge.  Confessing that you didn’t realize you were that drunk won’t help either. 

Here’s a reminder of the general rules for DUI charges:

  • 08 is the legal limit of Blood Alcohol Content (BAC) as determined by a blood or breath test administered by a law enforcement officer
  • 04 is the legal limit of BAC for a driver with a commercial vehicle license
  • 01 is the legal limit of BAC for a minor who is driving or prompts arrest by behavior

Once you are incarcerated for a DUI charge, you cannot be released from incarceration (even if you are walking) until you have a 0.02 BAC.  Meters can be purchased in some pharmacies and some liquor stores and a person who enjoys drinking a couple should consider investing in one as a personal check.  A smart person watching an event at home with a 6-pack might use one to test themselves between their 3rd and 4th beer to get a clear picture of their limits.  There is also a difference in the way everyone metabolizes alcohol, so formulas about your weight and drink ratios are not always correct.

It is best to establish the limits of your consumption pace with your preferences so you know the sensation and can remember what an approximate 0.08 BAC feels like and how long it took to get there.   It might be wise to check your BAC after a good night’s sleep in your own bed to see how long it takes to filter the number down to below 0.02.  Just like consumption, not all bodies lose BAC at the same rate, but it is usually 0.065 drop per hour.  Remember this reduction number varies as the rising BAC after drinking the same thing repeatedly.  You should know that sometimes your BAC can increase between initial reading and the reading that is registered at intake (the step before jail cell) when we know there’s been no consumption.  Smart people should know that the last drink takes a while to increase BAC as it co-mingles with its previous beverages.  You might want to say no to that final shot round.

Expenses For Experienced Help

A smart person would seek the way to pay an attorney for a first offense and sincerely consider the process necessary for preventing another.  There is usually a retainer fee (an up-front fee) and an agreement to pay the remainder of the bill within a term that usually corresponds to the final paperwork of the court case.  If you have watched television at all in the last twenty years you will have heard “If you cannot afford an attorney …,” and it is true that you can use a public defender or enter a plea at your arraignment yourself.   It would benefit the smart person to not fight the “zero-tolerance” arrest charge with Zero Help and work to prove themselves worthy of re-entry into society.  The DUI is one of those types of charges that can affect what remains on your record BUT can be diminished in severity by the actions you demonstrate later – and that’s where an attorney can assist the most by preparing you for what’s ahead.  If a potential future employer runs a background check, the incident will appear.  The more “clean” years of distance that you put between the incident on that background check and the time that it is run will soften it’s appearance in most evaluating people’s view. 

Algebra Anyone?

An attorney represents that you are financially stable, willing to comply with the court’s orders responsibly, take steps toward change, agree with and accept the conditions of your suspended license (under heavy restriction) and release back into the non-monitored public. If you sustain a second DUI within a relatively short period of the first offense or its resulting sentence, you really have no choice but to get an attorney or face serious jail time for the duration of the legal process surrounding the arrest.

 Arrest number n

 n > 0 = get an attorney, restricted license, monitoring device

             n > 1 = get an attorney, restricted license, prepare for leave of absence from work   n > 2 = lose license possibly forever, serve time according to 3-strikes rule

Step-Up To Making Changes

In the year following a first DUI, your concentration needs to be on continuing your life as normally as possible without drinking anywhere but at home or without taking the responsibility of driving.  You might want to consult any type of professional help for changing your behaviors in general.  Your employer may offer such a program through their insurance plan.  No one expects someone to make changes without guidance or help. 

Your year (minimum) toward a future of un-restricted driving means:

  • Good driving in general. No moving violations.
  • Good citizenship. No public outbursts, arrests for fighting or association with felons.
  • Clean breath monitoring history (ignition interlock records or monitoring bracelet records). There are fees for installation, lease of the device, calibrations (usually every 3 months), and resets after returning a bad BAC.
  • Give up either the practice of drinking while out or learning to go without drinking until parked at home for the night.
  • Give up drinking altogether. Consider a 12-step program for supporting your stopping use of alcohol. Alcoholics Anonymous meetings are available in just about every community on every schedule.
  • Retaking the driver’s written and practical tests as part of re-instatement of driver’s license.

DMV charges for these tests, so every failure will cost money.

  • Review the cost of what has transpired (all of it) and account or time lost to court appearance, maintenance, DMV Time. Recite the dollar amount X 8 (times 8) to remind yourself of what it will cost if it happens again.

Don’t Do It Again

Your license, with its magnetic strip and detailed recent history associated with the number, basically tells any law enforcement officer that you are required to be driving a vehicle with an ignition locking device OR to check your “ankle bracelet” data to prove you are 1) sober and 2) on your way to or from work.

Blowing into an ignition interlock with an incorrect result (over 0.02 BAC) will not permit you to start the car and will require a costly reset from the factory.  Tampering with any device for monitoring is in violation of your agreement with the court and will probably also incur a fine and-or increase the time you are sentenced have the device.

All these advisements and punishments are an attempt to re-shape you.   A truly smart person will look at the situation and take steps to change their behavior.  The law doesn’t say you can’t drink, it says you can’t drink and drive a car.  The law doesn’t say you can’t smoke marijuana and relax at home, you just can’t be enjoying the effects while you are operating a vehicle.  Individuality aside, you need to warm up to the changes you need to make.

What is a Zero-Tolerance Policy?

A scholarly presentation at the start of an OSSA conference in 2013 at the University of

Windsor explains quite smartly that there are six characteristics of a zero-tolerance policy[1]:

  1. Full enforcement (all those for whom there is adequate evidence that they have violated the rule are to be identified)
  2. Lack of prosecutorial discretion (for every plausibly accused person, it is determined whether the person has in fact violated the policy)
  3. Strict constructivist interpretation (no room for narrow interpretation of the rule)
  4. Strict liability (no excuses or justifications)
  5. Mandatory punishment (not under a mandatory minimum penalty)
  6. Harsh punishment (mandatory minimum penalty is considered relatively harsh given the nature of the crime).

The Zero Tolerance initiative of DUI/DWI has pushed California to identically aligned charges for the crime, punishments that are alike and harsh without exception, and there won’t be any immediate plea-deal for a reduced charge for offenders.

There’s only one place that has EVERY TOLERANCE for questions, answers, and help with an arrest problem... that is Mr. Nice Guy Bail Bonds!  (844) 400-2245 and that’s toll free from anywhere.  Use the website or Phone App to check and see if you or someone you know has any warrants.  Use it to help dispel your fears or confirm that you did forget to pay the court.  Call Mr. Nice Guy 24/7 to get advice on clearing up those warrants.

Laws Enforcement Officers Empowered to Cite or Arrest

The law enforcement officer (city, sheriff, California Highway Patrol, Life-Guard Patrol, State Park Ranger, etc.) may choose not to pursue you for a violation if they witness a problem with the vehicle or a poor driving behavior BUT in all cases they will run the existing vehicle tags through their computer or request assistance from a unit that can.  You can guarantee that they will take action if the vehicle has been reported stolen; regardless, they decide to take action based on observation.  If they stop you, the continuing action is determined based on your attitude.  If you are alert and cooperative, they may let you slide if the car has unpaid citations or parking tickets if you don’t show any signs of intoxication. 

Anyone with access to a vehicle and the capacity to drive can be “quizzed” by a law enforcement officer, whether they are behind the wheel or not.  If they think or observe that you have been drinking (e.g. staggering) and approaching your vehicle (keys in hand), you may be tested for Blood Alcohol level and refusal can only complicate matters.  Public Intoxication is an arrestable offense for anyone who is tested to be over the legal BAC for their age.

Law officers often check in on people with suspected car problems and while they cannot help you with a car problem (a jumpstart, for example) they are checking on your welfare.   They can be prompted by the smell of alcohol on someone’s breath or body and after conversation they may elect to test your blood alcohol content.  Again, declining to take the test is not an admission of guilt, but if you decline and law enforcement may still see enough cause to arrest.  Witness complaints and-or the smell of alcohol emanating from you can justify that until a formal test is performed.  

Minors should get smart and realize that while you may not be driving a car, a drunk and disorderly charge can stain your juvenile record and prevent you from a driver’s license when you are of normal age to apply (16), Technically most juvenile crimes are closed upon the age of 18, but they can be found.  Habitual demonstration of bad behavior will carry over to your adult privileges and punishment because you were not smart enough to see the warnings.

What things can subject you to a law enforcement check?

  • Poor driving or swerving
  • Driving too slowly or quickly in comparison to the flow of traffic
  • Improper signaling or failing lights/braking lights
  • Unregistered vehicle
  • Excessive smoke
  • Excessive noise
  • Disabled vehicle

 Sleeping in Your Car

Sleeping in a parked vehicle is the ONE condition that does not immediately constitute a DUI as a result.  If you have not had anything and are simply tired, it is proper to stop safely and park legally for rest.   If you did drink and are “sleeping it off,” you cannot have access to the vehicle’s keys – AT ALL.  You should be in the back seat (with no access to the ignition) and the keys need to be in a monitored space – your friends’ apartment (locked), inside the bar where you drank too much with the bartender. If you are in a park or at a rest area and have a Blood Alcohol Content over 0.08 you can be charged with DUI as you had to drive the vehicle to get where you are cited; if you did your drinking there then you may also be subject to fines for consumption of alcohol in a marked area (closed at 10 pm, etc.)

Restricted Licenses

Technology has given us the magnetic strip that can near immediately provide current information about a driver.  Now that almost every state has adopted a scannable driver’s license (magnetic strip) law enforcement can be made aware of any conditions applying to that person (warrants or arrests) and conditions of driving.  A restricted license means that the individual may drive in specific conditions (e.g. going to work or home from work) or must have a monitoring device (ankle bracelet, etc.)   Ignition Interlock devices are identified as a restriction on the license as well, and you are driving a vehicle not fitted with such a device you are subject to re-arrest for violation of conditions of his restitution.

Even if you are pulled over for a broken tail-light, all officers ask you to stop your car and provide them with license and registration.  Stopping the car is a safety measure for you and it prevents your immediate ability to drive away.  They usually ask a small-talk question or two that seems insignificant but all for a purpose.   It also ensures that the car isn’t hotwired (stolen) and after your fix-it citation is issued, proves you are complying with any special notations from the magnetic strip.

Can you restart the car by passing the breath test on your court ruled ignition interlock device? Did you say you were going to a concert, or going home from work?


The Department of Motor Vehicles declined to grant a hearing regarding the “recalibration” of the ignition interlock, so as the owner of the vehicle, I am having it removed as soon as possible.  Per the DUI sentence of the other party, it must be applied to a vehicle he drives for no fewer than 12 months, so he will have to install it immediately on his NEXT vehicle once the insurance settlement is received.  The removal and re-installation of the device is another avoidable expense.

Since the interlock installation, there have been two occurrences of a dead battery.  The first was ignored because the battery was old.  The second occurred on the NEW battery and was determined to be from the interlock’s “ready state.”   Most of them have an on-off switch for operation, much like a power up for a computer.  Being left in the ready state after days of inactivity will drain the battery.  By the way, the hosting monitor of the device (the place that bills you for monthly lease payments) also produces a report of all tests and passes, and I’m sure long gaps in the tests are examined closely.

Are the results of your most recent smart decisions costing more than what it would have cost to accept the initial penalty fees for what landed you in trouble?  If the answer is YES than perhaps you should leave the thinking to someone who is smarter than you.

* * * 


[1] Wein, Sheldon (2014); Mohammed, Dima; Lewiński, Marcin (eds.). "Exploring the virtues (and vices) of zero tolerance arguments"  Retrieved (2022) Wikipedia,  Centre for Research on Reasoning, Argumentation, and Rhetoric (CRRAR) publishing.



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About The Author

Jesse Kleis is a licensed California Bail Agent for Mr. Nice Guy Bail Bonds with over 7 years’ experience working in all aspects of the bail bond industry. He holds both a Bachelors and Masters of Arts in Sociology from California State University. Alongside his role in the bail industry he continues to hold a formal role in professional education as a Sociology Instructor.

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