MIC and open container

[rrod020]

What is the name of your state (only U.S. law)? TX

Hey, I was wondering if I could receive legal advice and possibly someone guide to the correct way of about going for this. I recently received 2 citations for minor in consumption of alcohol and open container. I was in the car with my sister and i pulled over so that she could drive and therefore not risk anything. As we were leaving the cops pulled us over because it looked shady to him. He pulled us out and started questioning us individually. He asked who had been drinking and i was scared so i said none of us. he searched our car and found an empty beer can under the passenger seat where i was. Once again he asked if we had been drinking and i said yes earlier when i was at our alumni reunion at my friends house. I told him that i wasnt sure how much i had but that it wasnt a whole lot. he made us wait in the car and came back with a breathalizer and pulled me out. i asked if i needed a court order or a lawyer present or if i had to take the breathalizer and he replied by saying that i didnt know what he was going to use it for and to just blow into it. i registered a .045 and he went and tested my sister. she was fine and had a .000 on hers. he came back and gave me both citations. What should i do from here and what can i do about having to take the breathalizer test without being allowed a field sorbrerity test? also, should i tell my parents and what do i say about the beer can since it wasnt mine?

Thanks

[FlyingRon]

The car was already stopped and the officer approached correct? Then the stop is justified.
What makes you think he needs to give you a FST or otherwise provide you legal counsel in his investigation? Your own admission to drinking OR the PBT is all he needs to convict you.
If you go to court you might be able to argue the long empty can was in deed an empty can, but you won't duck the mic.

You were EXTREMELY fortunate. You should have been written up for DUI.

Get a lawyer if you want to protest this.

[rrod020]

No. we were pulled over after we had switched drivers and then they pulled us over shortly after that. The only reason i ask is because i asked if i had to be breathalized and if theres any way out of it and he said no.

[FlyingRon]

The cop is not obliged to give you legal advice (and he's not a lawyer so you can't trust it anyhow).

If you admitted you were driving or he saw you switching seats, then he was within his rights to write you up for DUI.

You need to learn to stop breaking the law rather than looking for ways to weasel out of it. I don't know what kind of breaks you got on all your other infractions, but as I said, you dodged a major bullet here. A DUI, which you were 100% guilty of, is not hing to sneeze at and makes your other tickets look like a walk in the park.

Stop breaking the law.
Stop drinking and driving.
Stop drinking period until you turn 21.

[CavemanLawyer]

The stop sounds lawful to me. He obviously suspected that the switch was done to avoid a DUI/DWI for the driver and so he can do a bit of investigation into that. If he had quickly gotten some credible information that there was a legitimate reason for the switch, legally he should have let ya'll go unless he developed reasonable suspicion of some crime. But it sounds like after you two were questioned it was pretty apparent that at least one of you had been drinking, and so that should justify a search of the vehicle for alcohol.

A charge of open container in the passenger compartment does not require proof of ownership only that the container was there and that you knew it.

Normally the results of the PBT (what you blew into) are not admissible in court because the technology is unreliable (as opposed to an intoxilyzer machine). The exception is with minors charged with minor in consumption or DUI. This is so because the machines might not be reliable in detecting an accurate level of alcohol in your blood, but they are accurate in detecting whether there is any measurable amount of alcohol in your system, which is all that is required for these charges. The taking of your breath is considered a search and the implied consent laws of the transportation code apply only to intoxilyzers not PBTs. So as with any other evidence obtained via a search, if taken by consent your consent must be voluntary. I think under the facts you presented it is possible that your consent was not voluntary since it sounded like you didn't realize that you had a choice to refuse, which you did. It is possible to suppress the results of the PBT for this reason, but the sad fact of the matter is that you are being charged out of a Justice of the Peace Court where you'll be lucky to have a judge who is actually a licensed attorney much less one that knows the rules of evidence. To effectively raise suppression issues like this on class C offenses you usually have to be convicted at the JP level and then appeal which essentially just transfers the case to County Court to start all over again.

It sounds like the officer probably gathered enough information of your consumption even without the PBT results. I'd try to work out a deal with the prosecutor for something you can live with.