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Consent from Intoxicated Vehicle Owner

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

This officer has a great scenario.  Basically the question is: Can an intoxicated owner of a vehicle give consent to search?  (Right, despite being intoxicated.)

The scenario here is, the officer says that they stopped a vehicle with three occupants.  The owner of the vehicle is in the rear seat due to being intoxicated, so they have a designated driver.  That’s always nice.

The officers see some old containers in the vehicle, so they’re going to get into the vehicle based on that alone.  But that’s not a very comprehensive search by any means, because you can only look in places where open containers 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.

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

But the cop then goes to the owner, (this owner is intoxicated, would have been arrested had he been behind the wheel), and says, “Can we search your car?”  And he or she says, “Yes.”  Is that consent valid based on these facts?  Absolutely.  Voluntary intoxication is not going to get you out of consent to search.

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

The burden of proof for the court is usually pretty low.  In most states, it’s a preponderance of the evidence.   Some states kick it up a notch to something called “clear and convincing.”  But most states just need it to be more likely than not.  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?

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

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

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

Great question. Keep it up guys.  If you like what I’m doing, if you have more questions, go to and ask your question.  Until next time, stay safe.


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