is it legal?

[mipwtf]

What is the name of your state?What is the name of your state? Washington
I was walking around my building on campus after a fire alarm had been set off (most likely some pasta I had burned) when a police officer approached me and asked me if my name was ------. I said that yes, it was, and he asked me why I had left after the fire alarm went off. I told him that we are required to leave the building after fire alarms go off and I wasn't fleeing anything I was just walking around. He had decided I had been drinking (when I asked him why he said my breath "smelled" of it) and handcuffed me and took me into custody at the campus police center. Once at the center he repeatedly stated that I had been drinking (although I never said such a thing, his only evidence was the "smell" of my breath), poked fun of what he concieved to be my personal beliefs in authority (which aren't even my beliefs, as I repeatly told him), and when I requested a feminine product not only did he refuse but he and all the other officers present laughed at me. They had me in metal cuffs and I had to beg repeatedly for them to be replaced with plastic as I have an alergy to nickel. At first he inquired what nickel had to do with the handcuffs, I told him that metal alloys contain nickel, and he said he would switch them when I started having a reaction. Then he denied they even had plastic cuffs, which is BS and that I knew they were required to keep plastic cuffs. Once I started getting a little bit too vocal about the issue the plastic cuffs suddenly appeared. He tried to get me to sign something, which turned out to be a citation, but he did not allow me to see it, did not explain what it meant, only kept telling me that it wouldn't get me in trouble but he had used lies, harassment, and intimidation already in questioning me and so I told him I wasn't signing a damn thing unless I had a lawyer or an officer I trusted tell me I should. I was never administered a breathalyzer, although one of the times I told him he had no evidence he asked if I wanted one. I told him I'm not going to say I WANT anything until after I talk to a lawyer. I was taken to the county jail and booked on charged of minor in possession and/or consumption although I was nowhere near any alcohol when they picked me up and they did not take a breathalyzer. I did a little research on-line, and although one local lawyer stated that "smelling" alcohol on my breath may be enough to get me convicted the campus police pages Department of Police Services Standard Operating Procedures Manual states the following:
11.02.01 Breath Analysis Tests, Background

The Breath Alcohol Content (BAC) Verifier Datamaster will be used to determine the degree of intoxication where intoxication is or may be an element in a case or may be part of the defense of a case. Prior to breath testing, subjects must be advised of both their Constitutional Rights and their Implied Consent Rights (242 Rights).


The BAC Verifier is not a portable unit and all tests administered on it will take place at the -------- County Jail. Malfunctioning units must be reported immediately to the Washington State Patrol.


11.02.02 BAC Examination Procedures

1) Before administering the test, Officers must wait at least 17 minutes after they have checked to make sure that subjects do not have anything in their mouths.

4) Individuals who refuse the breath test after being informed that their refusal may be used as evidence against them in court may be allowed up to 30 minutes to use the telephone and/or to reconsider. After the 30 minutes if they again refuse the test and are to be charged on the basis of other evidence, the Officer will prepare a citation charging: Driving Under the Influence of Intoxicating Liquor and/or Drugs, or In Physical Control - Had Been Drinking. In any refusal case, the Officer will fill out, in duplicate, Form CHO-510-250: Report of Refusal to Submit to Breath Test.

My case is obviously an example of "intoxication is or may be an element in a case or may be part of the defense of a case," and yet not only did they not request a test (and I don't believe asking me if I want one qualifies as a request) but they never checked my mouth for anything and never told me anything about refusing a test, nor is there anything on my citation about "has been drinking." I was booked at the -------- County Jail where I requested a breathalyzer, but was denied. I was in a holding cell at the time which I know had video feed, does anybody know if they record sound as well? If they do could I get the tape of myself making the request? Would that even help my case?

Also, the same Department of Police Services Standard Operating Procedures Manual says that: .02.00 Contact With The Public

Officers are expected to refrain from making inappropriate comments including disparaging remarks, and to refrain from acting upon prejudices concerning age, race, color, creed, national origin, gender, disability, political idealogy, or sexual orientation.

And I figure the comments he made on my "beliefs" and the laughter following a request for a tampon is probably a violation.

And 11.01.03 Miranda Warning

You have the right at this time to talk to a lawyer and have a lawyer present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.

They had read me my miranda rights, and I repeatedly said I wanted to speak with a lawyer but they would not allow me to.


But I don't know if any of this holds up, if any of this could get my case dismissed or if I can file something against the officer for his violations? Unfortunatly, the only witnesses I've got are my husband (who was outside of the center and could only hear me crying hysterically and saying "I'm not signing a damn thing until I talk to a lawyer, sir!" "I want a lawyer, sir!" And also a cop told my husband that I was telling them that I had a nickel alergy), and the officers in the center at the time who are the guys who laughed at my tampon request and I was crying pretty hysterically throughout the whole arrest so I know if it comes down to an issue of my word against theirs I will fail miserably...

But still, no breathalyzer? No possession? WTF? Can this get thrown out, what can I do? I cannot afford a lawyer, what do I need to do to get public defense? When should I go about doing this? I haven't seen the report yet (it was written on the back of the citation I didn't see until after I was checked out or whatever from jail). My court date is on the 24th, and I would like to get this wrapped up as fast as possible.

Thanks.

 

[CdwJava]

The odor of alcohol on your breath is likely sufficient for an arrest for a "minor in possession" or "consumption by a minor" charge in Washington state. And while the state would have to prove your consumption beyond a reasonable doubt in court, the testimony of the officer might likely carry sufficient weight to carry the day.

Another thing is that they are liklely not required to give you a breathalyzer test for an MIP charge. We aren't in CA, and I doubt they are required to in WA either. It helps the case by providing "proof" of the presence of alcohol, but it is certainly NOT a legal requirement for the arrest, and depending on the local court may not even be necessary for a conviction on the charge.


The whole handcuff complaint is just plain odd. I know I wouldn't switch handcuffs because you claimed an allergy to nickel. And the plastic handcuffs are a pain! They can be used only once (so they cost money), and there is greater danger in cutting them off of someone than there is in using the standard stainless steel ones that most agencies use.

As for your thought that the officer's questioning of your 'beliefs' regarding authority is somehow a violation of policy or the law is laughable. But, if you can get an attorney to take the case on those grounds, knock yourself out! Just be prepared to pay money up front because he won't take the case on contingency.

And Miranda was not required to be provided unless they questioned you about the charges AFTER you had been arrested. And in that case, the remedy would be that any statements you made in violation of Miranda would likely be dismissed and unable to be used against you.

Last, you need to understand that the citation you were being asked to sign (and likely did not understand ... perhaps because you were inebriated?) was a 'promise to appear' in lieu of being arrested. By signing it, you would have gotten to go home. By refusing, you needed to be booked. You have no right to see an attorney before signing it, and the police have no obligation to babysit you until you do get one.

Personally, I'd say you have no complaint here. But, if you think there's one, talk to an attorney.

Carl

 

[mipwtf]

So even though the manual says they need a breathalyzer to prove intoxication, they actually don't need to prove anything?
And they DID read me my miranda which does state (even in the manual!) "You have the right at this time to talk to a lawyer." And I do have a witness to my requesting being able to talk to a lawyer, and not being allowed to. AFTER they read me my rights.
As far as "questiong my rights" and the tampon thing, they were making fun of me which I know isn't a criminal charge I could press in court, but I figure it's a violation of "refrain from making inappropriate comments including disparaging remarks" so maybe I could file a complaint? This isn't an issue of a cop hating drunk kid yelling cuss words and kicking and screaming, I was being respectful and clear until they started harrassing me where as I starting crying, but even then I kept trying to explain that I wasn't trying to be rude I just wanted to talk to a lawyer or a campus cop I knew who I trusted before they asked me to sign anything without letting me see it.

 

[CdwJava]

""""So even though the manual says they need a breathalyzer to prove intoxication, they actually don't need to prove anything?"

Since all they had to show was consumption or possession, they did not have to prove intoxication - which is something else entirely. It can certainly be brought up in court that the state has no 'evidence' aside from the officer's sense of smell and maybe any statements you made. But, in a matter like this, the officer's statements are likely to be sufficient ... but judges are all different, so who knows.

""""And they DID read me my miranda which does state (even in the manual!) "You have the right at this time to talk to a lawyer." And I do have a witness to my requesting being able to talk to a lawyer, and not being allowed to. AFTER they read me my rights."

Great. Then any statements you made in violation of Miranda can be tossed. If you made any incriminating statements based upon their continued interrogation AFTER you asked for a lawyer can get tossed out. But, they are under no obligation to sit you down and let you call a lawyert that moment. And they are also under no obligation to let you see a lawyer before you sign a citation. If you don't want to sign the citation (a promise to appear - NOT an admission of guilt) then you can go to jail first THEN call a lawyer.

""""but I figure it's a violation of "refrain from making inappropriate comments including disparaging remarks" so maybe I could file a complaint?"

Its possible. I know in my agency it MIGHT be considered improper conduct. But, it depends on what the officer and other witnesses might say about what was said. But, at worst, unless the officer is a real big pain in the tail end, chances are that would result only in a verbal written reprimand.

""""I just wanted to talk to a lawyer or a campus cop I knew who I trusted before they asked me to sign anything without letting me see it."

Well, they certainly had no legal obigation to let you see ANYONE before you signed the citation.

And I imagine that the officer will say that he did explain to you what the citation was and that it was not an admission of guilt. But, that's a 'he said, she said' sort of thing and I can't really address that.

All told, this is a real minor violation ... or it should have been. And they must have had some reason to seek you out in the first place if the officer came to you and asked for you by name! That tells me that someone pointed you out for doing something. Thus, I imagine there is some other element to this tale that is missing.

Anyway, if it were me, I'd pay the fine and move on. But, if you truly want to fight it, consult an attorney ... personally, I don't have that kind of money. But, you have that right.

Carl

 

[OutForRevenge]

CdwJava

Not really important...

CDWJAVA,
I was just curious... Have you been known to respond on the ACLU site? I believe you have helped me out before.. And if this is you, nice to see you on a site like this...

 

[CdwJava]

Yep - that would be me. I wander about on at least two other boards these days. Just managed to figure out how to complete the registration process here.

Carl

 

[harbor14]

So even though the manual says they need a breathalyzer to prove intoxication, they actually don't need to prove anything?
And they DID read me my miranda which does state (even in the manual!) "You have the right at this time to talk to a lawyer." And I do have a witness to my requesting being able to talk to a lawyer, and not being allowed to. AFTER they read me my rights.
As far as "questiong my rights" and the tampon thing, they were making fun of me which I know isn't a criminal charge I could press in court, but I figure it's a violation of "refrain from making inappropriate comments including disparaging remarks" so maybe I could file a complaint? This isn't an issue of a cop hating drunk kid yelling cuss words and kicking and screaming, I was being respectful and clear until they started harrassing me where as I starting crying, but even then I kept trying to explain that I wasn't trying to be rude I just wanted to talk to a lawyer or a campus cop I knew who I trusted before they asked me to sign anything without letting me see it.

The RCW you are looking for is 66.44.270.2(a)(b). There is no requirement in WA to utilize a PBT or BAC Datamaster to charge or convict for an MIP. The mere fact of smelling the odor of intoxicants on your breath and any other observations I make is enough to arrest, charge and convict. The portion you posted pertains to a DUI/Minor in Physical control/physical of a motor vehicle. MIP's do not fall within this category.

I dont see how you could sign a citation without seeing it. As was pointed out before, here in WA a citation is issued for low level violation in lieu of taking someone to jail. IF you refuse to sign it however, off you go.

Just from your posts I find the following odd; the officer called you by name, you cannot sign a citation without seeing it (it is impossible) and nowhere did you state you had not been consuming alcohol.

 

[mipwtf]

The officer called me by name (knew my name) because when they respond to a fire alarm (happens 2-5 times per week just in this dorm area) and inquired as to what had set off the alarm my roomies told him it was most likely food which I had burned on the stove.
I did not actually see the citation until after I was released after being booked, the officer mearly told me I had to sign something and did not show me the citation or allow me to read it.
I was inquiring as the ability to prove an MIP, not seeking solace for my particular situation. I needed legal information as to what qualifies as enough legal proof for a conviction. My significant other was just honorably discharged from the military and we both need to find jobs and a place to live within a few weeks and I do not need this charge on my formally clean record. If they can't prove it, I don't want it there.
Also, as to the the particular behavior of the officer- a former roomate of mine was arrested on the same night and had the crap beaten out of her (part of which occured in front of about 10 witnesses) by a campus police officer. She was not in anyway resisting arrest (by all accounts she was actually screaming, "I'm not resisting!") and was left with large cuts and abrasions on her chin, shoulders and face, significant bruising on her legs and torso, a possible broken nose, and bruises the size of an adult male hand all over her arms. I was thinking if anything that the officers on duty that night had done to me was in violation of the department manual might help her case out. Normally, I would just toss it out as a bunch of guys bored and frustrated working the night shift on a campus full of decidedly liberal kids taking out some of their anger by teasing me and I would have blown it off, but in this case their particular dehumanizing behavior and attitude may have led to their ability to use unreasonable force on my friend.
As previously stated, I have great respect for the men and women of service, however I know them to be as capable of human cruelty and error as everyone else. I don't think this kind of behavior should be allowed in any walk of life, but most especially in places of authority because such occurances can be highly detrimental to public oppinion (as can be seen in the recent Iraqi prisoner abuse), and our men and women of service need not only our respect but also our trust.