{"id":7524,"date":"2023-10-27T15:34:18","date_gmt":"2023-10-27T15:34:18","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7524"},"modified":"2026-09-22T07:43:23","modified_gmt":"2026-09-22T14:43:23","slug":"consent-from-intoxicated-vehicle-owner","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7524","title":{"rendered":"Consent from Intoxicated Vehicle Owner"},"content":{"rendered":"

This question comes from an officer in the great state of Texas.\u00a0 Maybe it’s the Great Republic of Texas.\u00a0 (I don’t know, technically, if that\u2019s what they call it down there.)<\/p>\n

This officer has a great scenario.\u00a0 Basically the question is: Can an intoxicated owner of a vehicle give consent to search<\/a>?<\/strong>\u00a0 (Right, despite being intoxicated.)<\/p>\n

The scenario here is, the officer says that they stopped a vehicle with three occupants.\u00a0 The owner of the vehicle is in the rear seat due to being intoxicated, so they have a designated driver.\u00a0 That\u2019s always nice.<\/p>\n

How far can you search a car on an open container violation?<\/h2>\n

The officers see some old containers in the vehicle, so they’re going to get into the vehicle based on that alone.\u00a0 But that’s not a very comprehensive search by any means, because you can only look in places where open containers<\/a> are likely to be, so you don’t get the trunk. You don’t get under the hood. You don’t get into tiny little places.<\/p>\n

While in the car, retrieving the open containers, the officer sees some Swisher Sweets, which is very commonly associated with marijuana cigarettes.\u00a0 So that’s where we’re at.\u00a0 Those are under the seat.\u00a0 And that’s another telltale sign that they’re probably marijuana cigarettes.<\/p>\n

Can a drunk owner in the back seat consent to a car search?<\/h2>\n

But the cop then goes to the owner, (this owner is intoxicated, would have been arrested had he been behind the wheel), and says, \u201cCan we search your car?\u201d\u00a0 And he or she says, \u201cYes.\u201d\u00a0 Is that consent valid based on these facts?\u00a0 Absolutely.<\/strong>\u00a0 Voluntary intoxication is not going to get you out of consent to search.<\/p>\n

Basically, the rule is this.\u00a0 Under the totality of the circumstances, do you reasonably believe that the person has the capacity to know that they have a choice?\u00a0 It’s a yes or no.\u00a0 They have the capacity to understand that they have a choice. That’s it. That’s really all it takes.<\/p>\n

The burden of proof for the court is usually pretty low.\u00a0 In most states, it’s a preponderance of the evidence.\u00a0\u00a0 Some states kick it up a notch to something called \u201cclear and convincing.\u201d\u00a0 But most states just need it to be more likely than not.\u00a0 So if you think about it, have you ever had a breath test thrown out in court because the person was too drunk to consent?<\/p>\n

Has a breath test ever been thrown out because the driver was too drunk?<\/h2>\n

Think about it.\u00a0 You arrest a smashed driver, this person is on the borderline of alcohol poisoning.\u00a0 That’s how much alcohol they have in their system.\u00a0 And you get their consent to blow on the machine.\u00a0 Now, you didn’t pump their lungs, right?\u00a0 They voluntarily blew.\u00a0 Have you ever had a case like that thrown out in court because the court said,\u00a0 \u201cOfficer, you can’t ask this driver for consent to blow?\u201d\u00a0 I’ve never seen it.\u00a0 Is it possible?\u00a0 Certainly it’s possible, especially if the cop coerces the person.<\/p>\n

Have you ever seen a case where somebody voluntarily gives blood?\u00a0 Even when the cops are saying,\u00a0 \u201cHey, if you don’t submit to chemical testing, you’ll get your license revoked, for the next year or two.\u201d\u00a0 (Or in New Jersey?\u00a0 It’s like up to 20 years.)\u00a0 Have you then ever seen a court say, \u201cThey couldn\u2019t give you consent for the blood draw because they\u2019re too intoxicated, high, whatever?\u201d\u00a0 I haven’t seen it, not based on simply being intoxicated.<\/p>\n

Good question. Easy answer.\u00a0 Intoxication will not invalidate that consent to search.\u00a0 You can absolutely get consent from people who are under the influence, as long as they had a choice in the matter.<\/p>\n

Great question. Keep it up guys.\u00a0 If you like what I’m doing, if you have more questions, go to BluetoGold.com\/show and ask your question.\u00a0 Until next time, stay safe.<\/p>\n

Related from Blue to Gold<\/h2>\n