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There is a famous joke that goes like this:

There is a huge crowd drinking in a pub in the outskirts of a small town. A police car waits in hiding nearby, to catch anyone who tries to drive away while under the influence. As the closing hour approaches, a man stumbles through the door, and falls down. He tires to get up, falls again. Then he crawls on all fours to the parking lot. He goes to a car, tries to stand up, but falls several times. Then he finally slowly manages to open the car door, and takes a lot of time sitting in. He then tries to start the car unsuccessfully, several times, until he at last gets it done, and the engine starts. He proceeds to drive out of the parking lot, when the police turn on their lights, stop him, and administer an alcohol test. To their surprise, it shows 0%. The driver immediately starts acting sober, and when the policemen ask in bewilderment what happened, he just says "We drew lots, and I was the bait". And by that time all the guests have left a long time ago.

Assume that in this situation the driver is smarter and does not say anything, so he does not admit trying to interfere with law enforcement. Was it then legal what he did?

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    I think the question is clear enough as is.
    – bdb484
    Commented Nov 19, 2023 at 17:39
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    I've heard the same joke with the punch line of being "designated drunk" (being a play on words of "designated driver")
    – Peter M
    Commented Nov 19, 2023 at 21:18

2 Answers 2

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The potential charge would be obstruction of justice, not pretending to be drunk. The critical factor making this potentially criminal conduct would be an intent to interfere with the ability of law enforcement officers to do their jobs.

Assume that in this situation the driver is smarter and does not say anything, so he does not admit trying to interfere with law enforcement.

No admission is necessary. The conduct speaks for itself and a conviction supported by circumstantial evidence of an intent to interfere with law enforcement in these circumstances would routinely hold up.

There could also be, conceivably, a conspiracy charge.

For a mere DUI offense, this probably wouldn't be pursued. But, say someone was then seriously hurt or killed by one of the drunk drivers who got away as a result. There might be a conspiracy to commit vehicular assault charge, or a conspiracy to commit vehicular homicide charge.

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    Interesting. But would the prosecution need to be able to prove that the "bait" knew that the police are watching, and that it was done specifically to mislead them? The baiter could claim that he was joking around to shock his friends, or to test whether they would interfere, or whatever.
    – vsz
    Commented Nov 19, 2023 at 20:23
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    @vez The baiter could claim that, but it is unlikely that anyone would believe him. The conduct itself is such that it implies knowledge and intent.
    – ohwilleke
    Commented Nov 19, 2023 at 21:11
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    @vsz I would imagine that one of the first things to be done is to collect statements from all the friends who were drinking at the bar. If the story of driver and that of his friends doesn't align, then that would likely come out very quickly.
    – Peter M
    Commented Nov 19, 2023 at 21:22
  • @Jen, asked.... But to the rest of your comment, would not an admission make an otherwise innocuous event rise to the level of probable cause for an arrestable offense? Consider the old lady who sprains her ankle outside a bank during a robbery - It could be unrelated, but an admission that she was paid by the robbers to create a diversion changes the entire scenario, right? Without an admission there is no offense.
    – Michael Hall
    Commented Nov 20, 2023 at 19:10
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    @MichaelHall The existence of an offense is unrelated to the ability of prosecutors to prove it.
    – ohwilleke
    Commented Nov 20, 2023 at 19:43
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Yes in

Driving in a fashion that makes it apparent that you have no capacity to drive is violating §23 StVO

(1) Anyone driving a vehicle is responsible for ensuring that their vision and hearing are not impaired by the occupants, animals, cargo, equipment or condition of the vehicle. Anyone who drives a vehicle must also ensure that the vehicle, the train, the trailer as well as the load and the crew are in accordance with the regulations and that the road safety of the vehicle is not compromised by the load or the crew. Furthermore, it must be ensured that the prescribed license plates are always easy to read. Required lighting devices must be present and operational on motor vehicles and their trailers even during the day.

Driving pretending to be intoxicated is compromising the road safety under §23(1). Similarly: driving overly tired is acted upon under the same paragraph.

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  • There is no driving in the joke.
    – Joe W
    Commented Nov 20, 2023 at 0:09
  • @JoeW at last gets it done, and the engine starts. He proceeds to drive out of the parking lot, - Enough driving: the moment the tires touch the road.
    – Trish
    Commented Nov 20, 2023 at 0:21
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    The joke doesn't suggest that the person drives in any manner that suggests that they are drunk, just a performance before driving out of the parking lot.
    – Joe W
    Commented Nov 20, 2023 at 0:24

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