Refusal of a breathalyzer as a passenger.

M

MWkid19

Bluelighter
Joined
Dec 12, 2003
Messages
4
Ok well I've had a pretty interesting birthday so far. This is going to be a little long winded so bear with me. I met two of my friends at their apartment for the night. From there we continued to drive to where we were going. We got pulled over and the officer walked up and asked for license and insurance. She gave it to him and after that he was like I smell alcohol. He asked everyones age and they were both 21 and I was 20 minutes away from being 20. The cop then asked if I would be willing to take a breathalyzer and I refused. He then asked why and I told him that I did not have to. He then walked back to the car and ran the license and everything and came back to the car. The second officer then came and tapped on my window and asked me to step out of the car. I got out and he was like ok be honest have you been drinking. He gave me a sobriety test where I had to follow his hand with just my eyes. He then said that I needed to start being honest with him and if I had been drinking. I told him no and he persisted with remarks such as "just be honest with us" ,"your not the only person whos underage that has been drinking" and so forth. I then asked the officers if I was being detained or if I was free to go. They then grabbed me and put me in cuffs and put me in the back of the squad car.

At that point they went back to the car and asked my friends some more questions. The cops came back and started filling out a citation for underage consumption. The second officer then asked me, "do you want to be a man about this and admit to drinking." He then realized it was my birthday and said, "well happy birthday we're going to give you a 280 dollar ticket I hope you like it." They knew where I was supposedly drinking at and how much I supposedly had to drink and what supposedly I had drank. Come to find out my friend had told them all of this information because according to her the police told her they were just going to issue me a citation. Well they did and I have to pay 280 dollars before the 1st or go to court on Jan 30th. My question is was I within my rights till my friend told them the information and should I try to pursue this in court? I don't think that they were justified in giving me a sobriety test since I was not driving. Also I was not under arrest I was just detained are they able to handcuff me and put me in the squad car? I was in no way being threatening or anything like that. I'm just pissed off right now because their was no need to be derogatory to me like they were I was being courteous and professional and they couldn't extend that to me. People wonder why there is such a disdain towards the police from the general public? My incident tonight sure makes a strong point as to why people dislike police officers. When an officers tries to tell you that your not a man thats pretty serious and if he wasn't a cop he sure would have been looking for a fight if he pulled that with the wrong person. Happy birthday to me.
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I'm sorry this happened to you on your birthday. That's shitty. :(

You were not arrested nor were you apprised of your Miranda rights. Considering you are underage and it is illegal for someone who has not yet reached the age of 21 to be intoxicated, on the surface it would appear that the police were not unjustified in giving you the ticket from a strict "letter of the law as opposed to spirit of the law" standpoint.

Was the driver of the car over 21? Was she intoxicated herself, or did she just provide information to the cops that you were?

Always remember that you can always refuse to communicate with the police without having your attorney present, as is your inalienable Constitutional right. I have a general rule of when in doubt, keep your mouth shut. The officers were obviously trying to bait you, and you kept your cool as best you could.

I'd find an inexpensive traffic ticket-type attorney and fight the citation on whatever grounds your attorney advises if I were you.

I keep my personal feelings about the behavior of police officers in various situations out of this forum, but I will say that they did come down a bit harsh. You were not driving, nor does it appear from your account that you were being at all disruptive.

Fight the ticket with the help of an experienced professional and don't let it ruin your birthday. Also- don't forget to post an update.
 
IMHO, and sorry to disagree with M420, I think there's a good argument you were "arrested" .. both semantically and legally.

The Supreme Court recently said arrest occurs when "taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Kaupp v US 538 U.S. 626 (2003).

You asked the police if you were under arrest or free to go, and they communicated that you were not free to go. As I see it, that's a question with two possible answers, and they clearly gave you one. Handcuffs/squad car is pretty hard to misinterpret. Even if you're not a reasonable person ;)

But they can arrest you if they have probable cause. Smelling alcohol on your breath sounds like probable cause, at least. So now what?

What to do about your situation is more complex, and I lack practical experience in the matter. I am studying for my Evidence exam, and this has hearsay problems written all over it. I strongly caution you not to take this as rock-solid advice, because the disconnect between school and reality is quite large :)

The citiation would be for a misdemeanor, I assume? Still a criminal infraction; so as a predicate, you need to be found guilty.

If you do show up and contest the charge, what will the cop tell the judge? How can he/she show that you had been drinking, or that you were intoxicated? You didn't admit anything, and they know it. But they can always lie; the world isn't a perfect place.

Some possibilitites:

1) Cop says that he/she smelled alcohol on you.

If the cop does make this claim, it might be given some credibility. They are "experts", that sort of thing.

But they wanted you to take a breathalyzer for a reason; there's lots of reasons a person can smell like alcohol. Breath spray. Mouthwash. Cold medication. A friend was drinking, spilled a shot on you. You cleaned your ears with rubbing alcohol.

Depending on the circumstnces, the smell alone might not be enough, so also consider #2.

2) Sobriety tests

If you were walking down the street and this happened, would get get a public intox ticket? It could definitely happen if you were drunk enough.

Again hinges on their expertise; depends on what they claim. Sloppy, unable to walk a line or follow the light? Or pass with flying colors, you could juggle two oranges and an apple, and eat the apple?

But: if you'd failed the sobriety test, why put you in the squad car? They could have written the ticket right then and there.

Did their lack of certainty force them to cuff you and go ask your friends?

3) What the driver told the cop

But the driver won't be there to testify against you.

An analogy: a cop can't write a speeding ticket just because someone else says they saw you going 150mph. Even if you were doing do-nuts in the middle of the highway.

So think about your particular situation.

Are there any downsides to contesting the citation? Additional court costs? [there's might be a "court cost" built into the ticket even if you pay it without going to court!]

My gut feeling is to suggest you show up and contest it. Balance your potential downsides [lose a day of work? higher fine?] to the upside [no fine? vindication? thumbing nose at "the man"?] and make your best choice. A local lawyer's advice would be a very good place to start.

Whatever you decide, don't lie and risk perjury to get out of a ticket where the penalty is only filthy lucre :)

Advice/corrections from persons with real-world experience welcome! Let'em fly!

Good luck.
 
If you fight this in court, the prosecution may very well call your friend to appear as a witness since she told the police at the scene that you had been drinking. If she caved when the cops questioned her, she will likely not lie for you on the witness stand in court. If she witnessed you drinking earlier in the evening, she would have to testify to that in court or face a possible perjury charge herself.
 
Is consumption even an arrestable offense by statute? What it sounds like to me is that you were not arrested, but merely detained--ie, police have the power to detain you during a routine traffic stop to continue their investigation, such as calling in drug dogs or conducting field sobriety tests. In these cases, you are not officially arrested, but you are not free to leave. Placing you in the back of the police car makes sense, if nothing but personal security. The handcuffs seem a bit harsh, but their mere presence does not equate to arrest...people are handcuffed all the time who are never actually arrested.

The field sobriety tests are not required by law. Even if you have been pulled over and smell of alcohol, the only "test" that is requred is the blood/breath/urine. Field sobriety tests, such as the walk-and-turn and count back from 30 while holding your leg are NOT required by law and refusing to do so will not lead to any further sanction.

Based upon the smell of alcohol on you, your performance (and perhaps "failure" of a sobriety test), and your friends' comments, the police had sufficient evidence to issue the citation.

Posted by zarquon
An analogy: a cop can't write a speeding ticket just because someone else says they saw you going 150mph. Even if you were doing do-nuts in the middle of the highway.
Click to expand...

If this was the only evidence, this analogy may make sense. In this case, however, it is not the evidence the police were going on.

You said that yes, you were drinking. You smelled like alcohol and there was evidence from the others in the car that you had been drinking. As Mariposa420 said, the police issued the citation in the strictest sense of the law.

You could contest the charge, but since you agreed to the sobriety tests and your friends said that yes, you were drinking, I'm not sure you would have much of a legal claim.

Remember, none of our advice can replace that of a local professional more well-versed in these matters.

Good luck--keep us posted.
 
Dr. J said:
Is consumption even an arrestable offense by statute? What it sounds like to me is that you were not arrested, but merely detained--ie, police have the power to detain you during a routine traffic stop to continue their investigation, such as calling in drug dogs or conducting field sobriety tests.
Click to expand...

Don't police first need to have reasonable suspicion during a routine traffic stop to detain you any further than getting your license/insurance info and checking for warrants??

I know they have that in this case, but as a general rule I mean...
 
Dr. J I never admitted to drinking. If I had failed the sobriety test the officers could have given me the citation right then and there. Instead the officers detained me and put me in cuffs and did not start writing the citation until they questioned my friend and she said that I had been drinking. Under my understanding, wouldn't they have to have a breathalyzer, urine, or blood work to prove that I was infact intoxicated. There are a million different reasons why I could have smelled like alcohol.
 
Here we go again...and not as detailed as I'd like, sorry--post comments or questions...

Reasonable suspicion is not a tough standard to meet. It is often based in large part on an officer's training and expertise in a given area....ie, the smell of alcohol, blood shot eyes, overall demeanor, etc.

Under my understanding, wouldn't they have to have a breathalyzer, urine, or blood work to prove that I was infact intoxicated. There are a million different reasons why I could have smelled like alcohol.
Click to expand...

No. As I read your post, you said you were charged with consumption, not public intox. If that is the case, they only need to prove that you had consumed any alcohol, not that you were at any certain level of intoxication. This point is moot. Further, even if there are a million different things that could cause your breath to smell like alcohol, the officer's interactions with you, both in asking you questions and in performing sobriety tests was to get a better sense of your condition. Even I, as an untrained lay person, can tell the difference between mouth wash and rum, for example. This argument is pretty weak.

And, I suspect the reason the officer didn't cite you immediately is because he wanted to make sure he had enough proof that yes, you were drinking. The fact that he went to get further evidence actually supports the fact that he may not have been a die-hard nazi looking to bust you. Had your friends not told them that yes, you had been drinking, you may not have been cited. Blame them for opening their mouths. Upon taking their comments, based upon their training, they had enough cause to cite you for consumption.

Hope some this helps...it certainly isn't as clear and concise as it was when I first wrote it...
 
Don't worry I'm plenty pissed at my friends. In fact I have no plans to hang out with them any more because of this whole ordeal. I'm not so much upset at the fact that I got the ticket I'm mainly upset at the demeanor and actions of the officers.
 
^^^
Totally understandable. And, like I said, it can't hurt to at least talk to an attorney in your area. There may be other issues involved that we've failed to see.

Good luck--keep us posted.
 
IMHO. You are considered to be "under arrest" at the point in which you were handcuffed and placed in the pol. car. You certainly were not free to the scene. However, there is much debate over when you are simply being interrogated and subject to arrest. Technically, you are under arrest once it has been determined that you are not free to leave the scene and the officer has indicated so. In short, you were arrested.

Zarquon, you need to understand that the police may detain you whilst conducting a criminal investigation and at that time you are not free to go about your business. Thus Mar. is not incorrect, only interpreting the facts differently than you. For that matter the police are well within their rights to handcuff a person for the safety of those involved. This does not absolutely mean that you are under arrest. I.E., it depends upon the mindset of the officer in control taking into account the totality of the circumstances.
 
yeah that "totality of the circumstances" can getcha :) As I think about it more, I can also agree with the characterization as detention, given what happened after being place in the squad car - police talk to friends, issue citation, release. Since there's no post-arrest questioning, it seems relatively unimportant.

As far as the DA summoning the driver as a witness, is this realistically likely to occur in challenging a citation? Isn't the normal scenario "you show up, the cop shows up [or maybe not], judge asks you both some questions, resolves the matter, and you either pay the fine or don't"? [Depending on the jurisdiction and the maximum possible penalty? If it's 30 days in county jail, contesting it might not be worth a $280 fine!]
 
Posted by Potted Meat:
IMHO. You are considered to be "under arrest" at the point in which you were handcuffed and placed in the pol. car. You certainly were not free to the scene. However, there is much debate over when you are simply being interrogated and subject to arrest. Technically, you are under arrest once it has been determined that you are not free to leave the scene and the officer has indicated so. In short, you were arrested.
Click to expand...

I doubt that consumption is even an arrestable offense...simply a citation like a traffic ticket, depending on the statute. Given that, I fail to see how this met the standard of arrest. As I said before, merely being placed in handcuffs does not automatically trigger the definition of arrest.
 
In my state, internal possesion of alcohol by a minor is an offense. That's how law enforcement gets around not actually catching a minor drinking.
 
Dr. J said:
I doubt that consumption is even an arrestable offense...simply a citation like a traffic ticket, depending on the statute. Given that, I fail to see how this met the standard of arrest. As I said before, merely being placed in handcuffs does not automatically trigger the definition of arrest.
Click to expand...

I agree with Dr. J's response. Being placed in physical constraints does not in and of itself constitute an arrest. We've been over this many times in Legal.

It is a fine line, but let's abstain from making blanket statements folks. Being held in custody is not tantamount to an arrest. An arrest is an expressed legal detainment in addition to a physical detainment.

MWkid19- You seem to have the beginnings of a resolution. I also would advise you to have an initial consultation with an attorney.

Keep us posted on what happens.
 
Ok so I consulted with an attorney and he told my chances of fighting this are slim since its only a city ordinance violation. He did tell me to check with the local prosecutor to see if this will be turned into the state because if it does I can lose my license.

This whole situation seems bullshit to me. Basically in my city if a cop wants to he can write you a ticket for underage consumption even if you haven't been drinking and you have hardly any chance to win.
 
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