underage drinking - police action justified?

secondary49 · Jun 25, 2004

What is the name of your state? Wisconsin.

Hey. I recentely was cited with an underage drinking ticket that should be coming in the mail any day now. The officer told me I would have a court date sometime soon. I know that I could easily plead not guilty and win my case in an adult court, but I know that juvenile courts are different, so i'm not sure what would happen.

Here's what happened that night:

I was in a friend's car with three other passengers, and we were going 55 in a 35 MPH road. A police officer pulled us over, asked the driver why he was going so fast, etc. He then asked if we had been drinking that night, we told them we had not. He went back to the squad car and one of my friends said that he could not breathalise us without evidence, so if he made us take one, we could ask him for a reason. When he came back and pulled one of my friend's out of the car who had his Driver's licence with no GDL, as opposed to my friend who was driving, who still had his Graduated Drivers LIcence (although the officer said this is why he pulled him out of the car, my friend later told me he had been arrested by this officer before, something rare in the fairly large town i live in). When he was done talking to him, he told me to come out of the car. He took down my name, address, phone number, etc. Then he asked how much I had to drink that night. I told him nothing, which was untrue, as I had had some beers earlier, but was not close to drunk. He told me my breath smelled, and that he wanted me to take a breathaliser. I then asked him, just like my friend advised me to, why he was breathalising me and why did he take me out of the car with no evidence. He told me he smelled alcohol in the car - which for an adult would not be enough evidence to convict someone of a DUI(I also find it hard to believe because there was no alcohol in the car, so he could only have smelled the driver's breath and he had a .02 Blood Alcohol Level and didn't smell like alcohol). I told him politely that I didn't understand how he could breathalise me with no evidence, not resisting him in any way or making an physical movement. He then grabbed my arm and cuffed me, telling me that I was under arrest, because I was not cooperating. I said "wait, wait i'll cooperate" Because I was willing to take the test if he was going to arrest me. He told me he would read me my rights in a minute, but put me in his squad car and didn't ever read me my rights. Another police officer came, and my parents were called to pick me up. As I left the car the other police officer told me to breath on him, saying he smelled alcohol. This is when the original officer said i would have a court date. The other officer asked "Do you wan't to take the breath test now?" and i said "no".

So, they never made me take the breath test, except in the beggining, but i was arrested before I had a chance to take it and have what was happening explained to me. The second time they just asked me if i wanted to take it, and I told them no. They also never read me my rights before arresting me, i dont know if thats a big deal because I didn't say anything when i was arrested. The main thing though is that they didn't have reasonable evidence to search the car in the first place.

I don't want anyone telling me that I shouldn't have drunk, but only real advice about if the police officers actions were justified, and If I could succesfully plead "not guilty" in a juvenile court.

Thanks

CdwJava · Jun 25, 2004

Your first mistake was taking legal advice from your friend in the car unless he was an attorney.

""""Then he asked how much I had to drink that night. I told him nothing, which was untrue, as I had had some beers earlier,"

Which he no doubt knew from the odor on your breath, and likely the bloodhot and watery eyes you had ... and, perhaps, the slurred speech and slight sway as you stood.

""""I then asked him, just like my friend advised me to, why he was breathalising me and why did he take me out of the car with no evidence."

Oops. Wrong question - and, as it seems, irrelevant. Your breath and the odor of alcohol had already given him cause to investigate further.

""""(I also find it hard to believe because there was no alcohol in the car, so he could only have smelled the driver's breath and he had a .02 Blood Alcohol Level and didn't smell like alcohol)"

Oh, trust me ... people that drink have a particular odor about them. Its not just on your breath ... its on the clothing and it exudes from your pores as well. Alcohol is a poison and the body processes as much as it can through the pancreatic system and the liver, and the rest gets sweated out through your pores. So you may not THINK you smell of alcohol, but most people who have even a little alcohol DO smell of it.

""""He then grabbed my arm and cuffed me, telling me that I was under arrest, because I was not cooperating."

Oops. This may be iffy depending on your state's laws on the matter. However, he does have the right to obtain evidence in a criminal act, and if your having consumed alcohol is a crime in your state, than he has the right to obtain that evidence. Your refusal could constitute obstruction.

Additionally, the officer sounds like he was not in the mood to play Monty Hall and try to negotiate with you. I know I wouldn't. You get one bite at the apple. After that, I take care of business. In this case the officer had a car load of yo-yos with a junior (wannabe) lawyer inside so he did not have time to focus to hard on one person - you.

""""I said "wait, wait i'll cooperate" Because I was willing to take the test if he was going to arrest me."

Too late. You had your chance.

""""He told me he would read me my rights in a minute, but put me in his squad car and didn't ever read me my rights."

He doesn't have to. Contrary to Hollywood, Miranda rights are only required when you are in custody AND they are asking you questions. If he asked you any incriminating questions after the arrest, those could be suppressed if he did not read you your rights. Otherwise, its not a violation of anything.

""""The main thing though is that they didn't have reasonable evidence to search the car in the first place."

Yes they did. Underage kids in a car with the odor of alcohol. That's plenty.

""""I don't want anyone telling me that I shouldn't have drunk, but only real advice about if the police officers actions were justified, and If I could succesfully plead "not guilty" in a juvenile court."

Well, you're gonna get the advice anyway - don't drink. And an even better piece of advice: don't lie to the cops ... it only pisses us off. You probably face a resisting or obstructing charge when you otherwise would have faced a minor in possession or consumption charge before. If you're lucky, they are just going to do you for the consumption based upon your odor.

And, Yes, you CAN plead 'not guilty'. Chances are it won't fly very far, but you CAN do it.

Carl

secondary49 · Jun 25, 2004

thanks for the reply. I appreciate it. Could I get some other reply's too though? I understand your a cop, thus you are likely to sympathize with the officer - and I respect that, but I hope to get some other replies, maybe from lawyers or people with different opinions.

thanks

JETX · Jun 25, 2004

but only real advice about if the police officers actions were justified"
*** Yep, they were.

"and If I could succesfully plead "not guilty" in a" juvenile court."
*** Nope, you can't.

CdwJava · Jun 25, 2004

secondary49 said:
thanks for the reply. I appreciate it. Could I get some other reply's too though? I understand your a cop, thus you are likely to sympathize with the officer - and I respect that, but I hope to get some other replies, maybe from lawyers or people with different opinions.

thanks

Well, I'm certainly not going to stop anyone. But, bottom line is, unless you are planning on shelling out big bucks for an attorney that might get you (at best) a 50/50 chance at an acquittal, I think that you are probably better off succking it up.

And I think you will find that if any of the attorney types respond, they will tend to concur to varying degrees that the officers' actions were likely lawful.

But, hey, who knows?

Carl

secondary49 · Jun 26, 2004

thanks for the advice. i'll let you know how it goes once it happens

secondary49 · Jun 26, 2004

and i guess i realize now its not a question of whether the police action was justified, but the real question is, how much evidence is needed to convict me? Just the smell on my breath... which could have got there many ways, and im not sure they could prove it beyond a reasonable doubt. Because I was at a party where alcohol was accesible, there are many ways I could have smelled. I'm considering hiring a lawyer but i'm not sure, because I think a public defender might be able to convince the judge that just a smell is not enough evidence. It would have been a different story if the officer had made me take the breathalizer, but he didnt. So i just dont know.

Any other opinions about what I should do are welcome.

stealth2 · Jun 26, 2004

Generally, a refusal to take a breathalyzer (which IS what you did when you were dicking around with the cop) is an admission of drinking. And there is no way your breath would have smelled of alcohol unless you drank it. If it was just your clothes - you might claim that it was spilled on you, but you can still get an MIP by simple virtue of being around it.

ptlmejo · Jul 9, 2004

secondary49 said:
and i guess i realize now its not a question of whether the police action was justified, but the real question is, how much evidence is needed to convict me? Just the smell on my breath... which could have got there many ways, and im not sure they could prove it beyond a reasonable doubt. Because I was at a party where alcohol was accesible, there are many ways I could have smelled. I'm considering hiring a lawyer but i'm not sure, because I think a public defender might be able to convince the judge that just a smell is not enough evidence. It would have been a different story if the officer had made me take the breathalizer, but he didnt. So i just dont know.

Being an Officer from Wisconsin, here's my take:

Yes, the odor of intoxicants on a person who has not yet attained the age of 21 is sufficient evidence to cite for underage drinking. The officer's word is evidence enough in light of his/her education, experience, and training.

Guilt beyond a reasonable doubt is not required. An underage drinking citation is a civil forfeiture, therefore, preponderence of the evidence is the only test required...the same level that was required to issue you the citation in the first place.

You won't be eligibile for a public defender. Your case is not criminal. You either need to:

1. Hire a lawyer at your own expense.
2. Fly solo without a lawyer.
3. Just pay the ticket.

In light of what you have told me to this point, I think it would save you a lot of time and headache if you just paid it, did your community service, and moved forward with your life.

mwhite981 · Apr 11, 2014

My police friend from Wisconsin should know what he is talking about, however in most other states this would not be enough to arrest a passenger of the vehicle. The act of underage consumption has to occur in the jurisdiction of the police. If most states if the offense occurs outside the officers jurisdiction, having consumed is not illegal, in addition to the venue issue there are other exceptions to the underage law i.e medical reasons and parental consent. The parental consent would apply in this case, even though you are no longer under the supervision of your parents. 9 STates have an internal consumption/possession law, which means internal possession constitutes possession, 41 States do not.

CdwJava said:
Your first mistake was taking legal advice from your friend in the car unless he was an attorney.

""""Then he asked how much I had to drink that night. I told him nothing, which was untrue, as I had had some beers earlier,"

Which he no doubt knew from the odor on your breath, and likely the bloodhot and watery eyes you had ... and, perhaps, the slurred speech and slight sway as you stood.

""""I then asked him, just like my friend advised me to, why he was breathalising me and why did he take me out of the car with no evidence."

Oops. Wrong question - and, as it seems, irrelevant. Your breath and the odor of alcohol had already given him cause to investigate further.

""""(I also find it hard to believe because there was no alcohol in the car, so he could only have smelled the driver's breath and he had a .02 Blood Alcohol Level and didn't smell like alcohol)"

Oh, trust me ... people that drink have a particular odor about them. Its not just on your breath ... its on the clothing and it exudes from your pores as well. Alcohol is a poison and the body processes as much as it can through the pancreatic system and the liver, and the rest gets sweated out through your pores. So you may not THINK you smell of alcohol, but most people who have even a little alcohol DO smell of it.

""""He then grabbed my arm and cuffed me, telling me that I was under arrest, because I was not cooperating."

Oops. This may be iffy depending on your state's laws on the matter. However, he does have the right to obtain evidence in a criminal act, and if your having consumed alcohol is a crime in your state, than he has the right to obtain that evidence. Your refusal could constitute obstruction.

Additionally, the officer sounds like he was not in the mood to play Monty Hall and try to negotiate with you. I know I wouldn't. You get one bite at the apple. After that, I take care of business. In this case the officer had a car load of yo-yos with a junior (wannabe) lawyer inside so he did not have time to focus to hard on one person - you.

""""I said "wait, wait i'll cooperate" Because I was willing to take the test if he was going to arrest me."

Too late. You had your chance.

""""He told me he would read me my rights in a minute, but put me in his squad car and didn't ever read me my rights."

He doesn't have to. Contrary to Hollywood, Miranda rights are only required when you are in custody AND they are asking you questions. If he asked you any incriminating questions after the arrest, those could be suppressed if he did not read you your rights. Otherwise, its not a violation of anything.

""""The main thing though is that they didn't have reasonable evidence to search the car in the first place."

Yes they did. Underage kids in a car with the odor of alcohol. That's plenty.

""""I don't want anyone telling me that I shouldn't have drunk, but only real advice about if the police officers actions were justified, and If I could succesfully plead "not guilty" in a juvenile court."

Well, you're gonna get the advice anyway - don't drink. And an even better piece of advice: don't lie to the cops ... it only pisses us off. You probably face a resisting or obstructing charge when you otherwise would have faced a minor in possession or consumption charge before. If you're lucky, they are just going to do you for the consumption based upon your odor.

And, Yes, you CAN plead 'not guilty'. Chances are it won't fly very far, but you CAN do it.

Carl

CdwJava · Apr 11, 2014

You signed up to post on a ten year old thread?

mwhite981 said:
First of all you do not have to be lawyer to know the law.

Never said otherwise. But, when people take legal advice from inebriated or misinformed friends they stand a good chance of getting highly flawed advice.

Smelling alcohol of an underage person is not reason for arrest, unless they are driving.

The odor isn't even reason to arrest a driver. It CAN be reason to detain a driver and even others.

he police have to prove venue. They could admit to drinking, however if the drinking did not occur in their jurisdiction they have no case.

Only of the crime was POSSESSION of the alcohol. Inebriation can occur wherever the inebriated subject is at the moment.

If a kid refuses to take the breathlyzer, which they are entitled to according to the law, they should not be arrested based on their "uncooperation" Unless your state has the internal consumption law, they do not have a case and you would be wise to plea not guilty.

First, underage drivers in my state are required to submit to a breath test if there is a suspicion of alcohol consumption and the operation of a motor vehicle. And, in 2004 when the post was written, many counties in CA did still go with an internal consumption theory. Today, there are few counties that operate with such an interpretation (largely for budget issues) but some still do.

If it is financially feasible to fight the case I would do it.

It was resolved nearly a decade ago, I'm sure.

CdwJava · Apr 11, 2014

mwhite981 said:
My police friend from Wisconsin should know what he is talking about, however in most other states this would not be enough to arrest a passenger of the vehicle. The act of underage consumption has to occur in the jurisdiction of the police.

POSSESSION must occur within the jurisdiction. But, there are exceptions to that as well. But, being under the influence can occur wherever the person is standing, sitting, or arguing.

Ohiogal · Apr 11, 2014

mwhite981 said:
He was not talking about being intoxicated. The question was about consumption. You can consume without being intoxicated. In Ohio if you are underage and you are driving the limit is .02 which basically is any alcohol, taking into account the slight variation and tolerance of the bac machine.

You state the in your state you must submit to a bac if you are driving, this kid was a passenger. My friend you were a little aggressive, when I was trying to give an "accurate" assessment of this kids situation. Now you are trying to change the facts of his case so you can win an argument. Although this case was 10 years old I felt the need to correct errors in what I am sure were well meaning contributors. One more thing in most states (41) possession and consumption must occur within the jurisdiction. Venue is an element of all crimes. The 14th amendment pretty much spells this out.

I will say that you are correct about the odor of alcohol is not a reason to arrest the driver, actually alcohol is odorless, however it is a reason to do field sobriety and if the driver refuses to blow, he will loose his license and in all probability loose his case in court, this is the case in Ohio. One more thing.....I would not consider myself woefully ignorant of the law, however my colleagues will get a good laugh out of that. Take care

Wrong. Now you are an idiot. Don't quote what your little mind THINKS is Ohio law.

CdwJava · Apr 11, 2014

mwhite981 said:
He was not talking about being intoxicated. The question was about consumption. You can consume without being intoxicated. In Ohio if you are underage and you are driving the limit is .02 which basically is any alcohol, taking into account the slight variation and tolerance of the bac machine.

Of course the OP was in Wisconsin, not Ohio. And, do you KNOW what the status of the law was in WI in 2004 AND whether there was a state or local ordinance prohibiting minors being under the influence at that time?

You state the in your state you must submit to a bac if you are driving, this kid was a passenger.

And in som estates and circumstances a minor who is believed to be under the influence is required to submit to a chemical test. Since this was 10 years ago, I'm not going to bother looking up the info to see if it is or was the law in WI as it is irrelevant today. But, if you wish to imply that passengers who are minors cannot be compelled to submit to a chemical test, you would be incorrect as that is not the case in all situations nor all states.

My friend you were a little aggressive, when I was trying to give an "accurate" assessment of this kids situation.

If you say so. Of course, the original poster is long gone so you're essentially speaking to the ether.

Now you are trying to change the facts of his case so you can win an argument.

What facts? What argument?

Although this case was 10 years old I felt the need to correct errors in what I am sure were well meaning contributors. One more thing in most states (41) possession and consumption must occur within the jurisdiction. Venue is an element of all crimes. The 14th amendment pretty much spells this out.

As I said, this happened ten years ago and many of those states that you say do not recognize "internal" consumption may have actually done so, then. But, there are other reasons to detain and even arrest a minor who has consumed alcohol. If you cannot see that, then you do have a rather short-sighted understanding of the law.

Oh, and there are exceptions to possession in the presence of the officer making contact. Maybe some other time we can discuss the concepts of probable cause, jurisdiction, and courts. Granted it was not likely an issue in this particular thread, but don't hang your hat on the mistaken thought that the contacting officer must witness the possession for the state to be able to charge and convict for the offense.

I will say that you are correct about the odor of alcohol is not a reason to arrest the driver, actually alcohol is odorless, however it is a reason to do field sobriety and if the driver refuses to blow, he will loose his license and in all probability loose his case in court, this is the case in Ohio.

Actually, an alcoholic beverage is NOT odorless, and when it purges from the body it has a very distinct odor. To insinuate otherwise is disingenuous.

One more thing.....I would not consider myself woefully ignorant of the law, however my colleagues will get a good laugh out of that. Take care

Good for them.

anearthw · Apr 11, 2014

It seems our OP is now old enough to have a young family of his own and grumble about drunk teen passengers being noisy when driving up and down the street

underage drinking - police action justified?

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