is it illegal to refuse a Breathalyzer if not driving?

[geeeeoffff]

What is the name of your state? Washington, city is Bellingham

My friend got ticketed for 'Minor in Posession'

he says he was in his room when two Resident Advisors, a Rent-a-cop and a real cop showed up at his door and said they suspected him of throwing beer cans out his window. He hadn't, so he allowed them to search his room without a warrant.

They found no evidence of alcohol or drug use, or possession, but they did ask him to take a Breathalyzer. He failed blowing a .09 or something.

Washington has an 'Implied Consent' law saying that if a policeman asks you to take a Breathalyzer within 2 hours after you have been driving you MUST take the breathalyzer or you will have your license revoked.

The thing is, if you're not driving, and you're just walking down the street, with no alcohol containers around you, no stench of alcohol, can Joe Cop ask you to take a breathalyzer?!

it seems to me like a breathalyzer test is a kind of search and with exception to the 'implied consent' rule of driving you shouldn't have to take one unless they have a warrant.

Am i right?

 

[seniorjudge]

Q: The thing is, if you're not driving, and you're just walking down the street, with no alcohol containers around you, no stench of alcohol, can Joe Cop ask you to take a breathalyzer?!

A: My guess is yes.

 

[racer72]

The implied consent law is irrelevent in this case, they were trying to establish possession, not consumption. He also likely agreed to the breathylizer, one of two things would have happened if he refused. He either would have been arrested or they would have left. If he was in a college dorm, no warrant would have been required. The rental agreement for the dorm allows "health and safety" inspections without notice, the definition is extremely broad. My son attended Western about 10 years ago.

 

[geeeeoffff]

okay, but usually they handle alcohol violations in-house. this means that they determine guilt and administer punishment internally without notifying police, parents etc. Of course there are exceptions. but in most cases the police are called as a last resort.

anyways

i think that, if the RAs asked him to do a breathalyzer that would make sense. but does an officer of the law have the right to take advantage of that clause in the rental agreement? If so, can johnny law just randomly breathalyze residents of the dorms? that doesn't seem right. I could maybe see that for agents of the university but any law enforcement?


BTW- they were trying to establish posession, they count your body as a container. so if its in you, you're in posession.

 

[The Occultist]

Just because it is "usually" handled internally does not that it must be, nor is always, handled internally.

 

[LSCAP]

I don't know about the body containing alcohol since things like mouth wash sometimes contains alcohol.

Though the officer would likely testify about his eyes, body language, and speech.

 

[geeeeoffff]

i think the idea behind the 'body is a container' rule is that just because you downed all your rum before the cop found you stumbling around doesn't get you off the hook. it seems like they should call it something else, but they just call it posession.

and with a .09 unless he's a total lightweight i don't think his 'eyes, body language, and speech' would be much to talk about in court. This is an adult male we're talking about.

 

[CdwJava]

geeeeoffff, the police (like anyone else) can ASK you to do anything. the question is not if they can ask you, but if they can compel you to take a breath test. There i sat least one state that I know of that has a punishment for a minor refusing to take a breathalizer in the field when there is cause to believe he is inebriated - I am not sure about WA. However, in this case the RA's and the security officer were there and apparently they (or the officer) "asked" him to take the test. Had he refused, then there would be an issue. Since he apparently went along with it, then there is no real issue.

In general, an officer cannot compel you to take a breath test. I am unaware o fany WA state law that mandates you take a breathalizer if just walkin gdown the street or in any other public place.

- Carl

 

[geeeeoffff]

i know its too late for my friend, i'm just asking for future reference.

thanks