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Underage citation refuse to take breathylizer

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CJD14

Junior Member
What is the name of your state? Pennsylvania
I was at a backyard BBQ, 12:30 am at my college the last weekend of the school year. I do not drink. I was with my Lacrosse team, plus several other kids about 40 in all. My friends that were with me were not drinking. We were planing on going to Denny's to eat when all of a sudden police came from nowhere. They told all the over 21 years olds to line up on one side and under 21 to line up on the other. We were told it was for a noise disturbance, but only an iPod with a little computer speaker was playing. There was no alcohol being served and if there was any it was BYOB. There were 7 cops in all. We were fenced in on private property non college. There were 4 cops on the inside of the fence, and 3 on the outside. They told all the 21 yrs. to leave. They let all the girls under 21 leave. What was left was 5 guys and me. They administered breathylizers to the other 5 first. One of the kids asked "what if I refuse" and they said they would take him to jail. When they got to me I refused, for one, I was not drinking and I did not have anything on me to warrent them to think I was. I spoke with one officer for a while and he did not smell anything on me, nor could he. I did not want to take the breathylizer. I was afraid of taking the breathylizer for many reasons. I would rather, if I had to, take a blood test. I refused so they wrote me a non-traffic violation underage. It was dark, I tried to read it but the officer told me to just sign it and he kept pushing me to sign. I read the citation the next day and it said that I admitted to drinking. I never admitted to drinking. The officer that wrote the citation was outside the fence and never had any contact with me or the other 5 guys. We all got a citation. Some were drinking, some were not. They all took the breathylizers, they all registed something but nothing above a .06 and I did not see anyone of them drinking. They may have but there was no continual flow of alcohol so whatever they had in their cups was just that. The officer that wrote up all the citations was outside the fence and never had any contact with any of us. I am pleading not guilty and I am going to court with this. I know I do not have to take a breathylizer, so why did they not opt to take me for a blood test. I was afraid to ask because everytime someone asked a question they would throw a threat out. I was scared. My question is how can they give me an underage when there is no proof of my drinking. I will be taking 3 students with me to court to testify that I was not drinking. How can an officer sign a citation and clearly lie about it and get away with it. What are these police officers teaching us students if we are going to witness them breaking the law? My lawyer says that at the time of the hearing they could say anything so we have to wait and see at the time of the hearing what their argument is going to be. I want to know what his plan is. He said there is no plan until we find out what the police officers say. If they say they did not see me drinking and tell the truth, I have no problem, but if they lie then we will worry about it at the time. I may have to change lawyers???? Thank you for your time.
 


moburkes

Senior Member
Break up your post with white spaces (paragraphs) by using the enter button to make "empty" lines. It will be MUCH easier to read. You will receive several replies. Thanks!
 

FlyingRon

Senior Member
A .06 is still illegal for a minor. If they registered a .06 they were drinking whether you saw them or not. It's rather immaterial for your case other than it bolster's the cop's probably cause to think you might have been drinking as well.

Your lawyer is correct, the citation means little. The issue is what the cops say in the hearing. It is at this point he will challenge them (possibly with your testimony).
 

tranquility

Senior Member
The reality of the world makes what Curt581 said absolutely correct. That it is correct is wrong and angers me to the core--as I believe in limited government where We the People do ordain and establish the compact which governs us. However, reality is not always the same as theory. If all you say is true, you got caught up in that dichotomy and have to suffer the cost. I hope you thought to do what was right and didn't behave the way you did for other reasons. That way you were fighting for freedom rather than being a selfish, petulant child.
 

CdwJava

Senior Member
If the violation was for possession, and the alcohol was all around him, then the breath test becomes even less relevant as all they would likely have to show is constructive control over some or any alcohol.

- Carl
 

tranquility

Senior Member
We have that. We the People elect representatives by majority vote to enact laws to maintain public safety, security and order. The majority of The People have decided that an individual must attain the age of 21 before they can legally consume alcoholic beverages. Is there a minority which objects to that? Sure. But that's too bad.
The Constitution places limits on the government when it is trying to protect safety, security and order. Part of those protections require probable cause (particularized) before arresting a person or searching a fenced in private area (Although we don't know the facts to determine if this was true here.) The OP did not consume alcoholic beverages, per his comments.


What he got caught up in was his own poor choice of friends. I'm not even going to get into whether or not he really was drinking, other than to say his story is a little bit fishy.
Are you aware of the percentage of kids who admit to taking a drink in the last year? Is it your opinion that a person who, per the OP "does not drink" has made a poor choice if he is a friend of any one of them? You need to flash back to your college/high school days as there was a lot of parties where I was the OP as I didn't drink at that time either. (Now, since I've been married--that's all changed.) "Fishy" is not a reasonable suspicion.

Oh, puhleeease... this is a measly drinking ticket, not the Battle of Yorktown.
I'm sure many police officers feel they have a right to arrest people for no reason other than because the person didn't do what the officer told them to. Please, Mr. Officer, what level of violation of our Constitutional rights should we care about? At what point does it become the Battle of Yorktown? I understand you feel that a person who does not respect the police au-thor-i-tay deserves to be arrested for some reason. As a motor cop, you have the advantage of knowing there going to be something like no sun in the sunvisor or gloves in the glove box to write a ticket upon. However, a cop overreaches when he arrests a kid at a party because others have alcohol there.

As to Carl's constructive possession, it's my turn to say puhleeeeze. If the cops could have put a cup in his hand or set down beside him and the cup had alcohol, they wouldn't have gone for the breath test. If cups of alcohol at a party equals possession, no kids could ever be any any party, church carnival or event or resturant where alcohol is served without equaling a violation under constructive possession.
 

CdwJava

Senior Member
tranquility said:
As to Carl's constructive possession, it's my turn to say puhleeeeze. If the cops could have put a cup in his hand or set down beside him and the cup had alcohol, they wouldn't have gone for the breath test. If cups of alcohol at a party equals possession, no kids could ever be any any party, church carnival or event or resturant where alcohol is served without equaling a violation under constructive possession.
But this wasn't a church carnival or event, or a restaurant - it was a gathering of underage kids and there was apparently a lot of drinking going on. I don't know the status of the law in PA on possession, so I can't say whether the situation rises to the level of possession there or not. It is also not clear as to whether the OP is being charged with possession or consumption - it could even be the same offense. And even possession cases are strengthened by proof of consumption be it drugs or alcohol. (hence the reason DAs like to have a drug test even when someone is simply in possession of drugs). When it goes to court, the officers will have their say and the kid can have his. If the judge feels the officers did not observe enough to justify the charge (whatever it is) then he should acquit them.

- Carl
 

CJD14

Junior Member
Thank you for all your input. I want to state that I was NOT drinking and I am not intested in drinking. I can not drink. I have been in trouble for drinking in the past and it is not worth it. I am scared to drink and scared because of the history with our college police.

At my college you could sit on my front porch any given weekend and watch the college cops pass out underages. My attorney told me that my college made 5 mil. last year with LCB on underage alone. I don't know if that is true, but it is clear that this is a business.

As far as the breathylizer goes, it might have been a dumb decision in your eyes. I am in the ARD program right now and I have 5 months to go. One night I was walking back to my dorm from a party. I was drunk and a campus policeman told me to stop. I knew I was in trouble so I turned around and put my hand in my pocket to get my cell to call a friend. Next thing I know I am on the ground, he is spraying mase in my face and arresting me for running, resisting arrest and thinking I had a gun in my pocket. I could not run, I was very intoxicated, I had no gun and when he pushed me from behind I smashed my head into the curb. I was not going anywhere. My parents wanted to teach me a lesson for underage and even though an attorney said there were plenty of mistakes by the cop, my parents felt that I should be punished. I should have just stood still and probably put my hands in the air. I was stupid. It has been a long road.

I am trying to tell you, yes this is a slippery slope, but I have too much to loose to take a drink. I am going to get my engineering degree, I play Lacrosse and I have managed through all this, to keep my grades up.

I was very scared to take the breathylizer because any reading would have made me look bad. We all know that these breathylizers are very inaccurate and there have been many studies done to prove that. I was nursing a cold and was taking some couph syrup. My attorney yelled at me and said I should not be taking any couph syrup. Too many hidden dangers.

I was not being ****y at all to the police, I just said I will not take the breathylizer. In fact me and one of the campus police were talking through all of this. I asked him where he got his degree from. He told me he went to my college for cullinary art. I asked him where he went to college for criminal justice and he said he did not. I was very puzzled. He wears a badge and carries a gun, but no degree.

I could have been sitting out back, at my house that I rent, with my roomates and friends and the cops show up. Heck the neighbors come over if we are having a BBQ and bring their own drink. That does not mean they are my friends or that I am drinking just because they are. It would have been no different then what happened at my friends house. You say pick better friends, this will be the only time I seem ****y, You Have Got To Be Kidding. There are kids that wake up and start drinking. If I try to extract myself from that environment I will have to be home schooled. Find a college that this does not go on everyday. There is drinking and drugs all around. I talk to my friends and my brother that go to other colleges and there is no difference. In fact, the more strain they put on these colleges for underage the more the kids go for the pot and cocaine.

My roomates drink whether they are 21 or not and I am always around it whether it is drinking or drugs. You talk to any college student and I believe that the majority will tell you the same. I am not making an excuse, this is college reality.

In any event I am telling the truth and I guess at this point it is how the chips fall for me. I have tried my best. I know I did not do anything wrong and my friends that were with me know I was not drinking. There is no evidence to prove I was drinking except for the cop lying on the citation. The citation that was written outside my view and the cop who never saw or spoke to me.

I dont know how the police can get away with lying on a citation, but my attorney tells me they lie all the time. I never went to college having a negative attitude about police, but in the two years that I have been here, I have seen a lot of bad stuff happen. I will never try to be ****y with the police, but I dont like them and I have no respect for them. I don't trust them, nobody trusts them. They are suppose to be the people we students trust and respect. I hate feeling this way but I have not seen them do any good. They are suppose to be there to protect the students and help them. This is entertainment for them. Campus rapes, assaults, robberies and breakins are not down and last year one of the campus police pulled a gun on some underagers. The kids got off to keep quiet and the cop was transfered, he crossed over the line. I am afraid that someone is going to get hurt or killed with a campus full of cops with no proper training and love to play politics.

Again thank you for your time.
 

seniorjudge

Senior Member
...

As far as the breathylizer goes, it might have been a dumb decision in your eyes. I am in the ARD program right now and I have 5 months to go. One night I was walking back to my dorm from a party. I was drunk and a campus policeman told me to stop. I knew I was in trouble so I turned around and put my hand in my pocket to get my cell to call a friend. Next thing I know I am on the ground, he is spraying mase in my face and arresting me for running, resisting arrest and thinking I had a gun in my pocket. I could not run, I was very intoxicated, I had no gun and when he pushed me from behind I smashed my head into the curb. I was not going anywhere. My parents wanted to teach me a lesson for underage and even though an attorney said there were plenty of mistakes by the cop, my parents felt that I should be punished. I should have just stood still and probably put my hands in the air. I was stupid. It has been a long road.

....

I would like to know what "mistakes" you mistakenly think the cop made.

Nothing you posted shows any mistakes.
 

Bretagne

Member
seniorjudge:Nothing you posted shows any mistakes.
You don't think that macing some drunk kid constitutes excessive force? Could he have tased him? Pulled his sidearm? Fired a warning shot?

Yeah, it's a question of fact whether or not the officer's conduct was reasonable under the circumstances (hand in pocket). An objective analysis is required. It is definately possible that the officer made a "mistake".

(BTW: why can't I figure out how to quote correctly? I have to cut and paste the poster's name I want to quote, and so my quotes are never formatted like everyone else's?)
 

CJD14

Junior Member
I would like to know what "mistakes" you mistakenly think the cop made.

Nothing you posted shows any mistakes.
I think I see where you are going with this. I am not going to dispute this issue with you. I made a mistake with getting drunk under 21 and I am trying to fix it. I gave a very rough run down and there clearly there were serious mistakes. The policeman admitted it to both my parents after the hearing. He knows what he did. He was proud of what he did and laughed about it. The case is over, I just try to avoid this cop when I see him out on the streets. I did not "mistakenly" think anything, he admitted to it in front of the judge, my parents and the attorney AFTER the hearing.
 

moburkes

Senior Member
You don't think that macing some drunk kid constitutes excessive force? Could he have tased him? Pulled his sidearm? Fired a warning shot?

Yeah, it's a question of fact whether or not the officer's conduct was reasonable under the circumstances (hand in pocket). An objective analysis is required. It is definately possible that the officer made a "mistake".

(BTW: why can't I figure out how to quote correctly? I have to cut and paste the poster's name I want to quote, and so my quotes are never formatted like everyone else's?)
At the bottom of every post, in the lower right-hand corner, is a quote button. Click it. Then, type either above or below the quote.
 

CJD14

Junior Member
But this wasn't a church carnival or event, or a restaurant - it was a gathering of underage kids and there was apparently a lot of drinking going on. I don't know the status of the law in PA on possession, so I can't say whether the situation rises to the level of possession there or not. It is also not clear as to whether the OP is being charged with possession or consumption - it could even be the same offense. And even possession cases are strengthened by proof of consumption be it drugs or alcohol. (hence the reason DAs like to have a drug test even when someone is simply in possession of drugs). When it goes to court, the officers will have their say and the kid can have his. If the judge feels the officers did not observe enough to justify the charge (whatever it is) then he should acquit them.

- Carl
This was not a gathering of underagers drinking, there were kids over 21 and there was no alcohol being served. Who ever had any they carried it there. It was in their hands. There was no supply of it that I saw. I was not charged with possession. The citations says I admitted to drinking. It also says I was in the presents of alcohol and that I am under 21. That is it. If I was able to read the citation that night I would have asked why the other officer that never saw or spoke with me wrote that. I would never admit to drinking when I did not drink.

And by the way, since I do not have a car, one of the students at the party, that did not dirink (believe it or not there are kids that do not drink at parties) took me to the hospital so I could get my own test done. They would not do an alcohol test because they said it was too late. It was past the 4 hour period, so I made them do a drug test. The nurse thought I was crazy.
 

tranquility

Senior Member
As far as the breathylizer goes, it might have been a dumb decision in your eyes. I am in the ARD program right now and I have 5 months to go. One night I was walking back to my dorm from a party. I was drunk and a campus policeman told me to stop. I knew I was in trouble so I turned around and put my hand in my pocket to get my cell to call a friend. Next thing I know I am on the ground, he is spraying mase in my face and arresting me for running, resisting arrest and thinking I had a gun in my pocket. I could not run, I was very intoxicated, I had no gun and when he pushed me from behind I smashed my head into the curb. I was not going anywhere. My parents wanted to teach me a lesson for underage and even though an attorney said there were plenty of mistakes by the cop, my parents felt that I should be punished. I should have just stood still and probably put my hands in the air. I was stupid. It has been a long road.
My goodness, it wasn't you because the person was not in college, but I broke a guy's arm and some ribs once for this very thing. Back in my cop days, it was almost summer and we were getting hit with daytime burglaries like crazy in my patrol area. I saw a guy walking down the street who was wearing a trenchcoat and was clearly carrying something underneath an arm. Since it was a bazillion degrees out, I was suspicious. I pulled over and went to talk with him.

He was coming from a "friend's" house just up the street, but couldn't name the friend, the address or even say which house. In my training and experience, many people can give the name of their friends. I mentioned the bulge under his coat and he told me he didn't have anything under his coat. I pointed to his arm pit and he told me there was nothing there while saying "See". As he said this, he started to raise his arms up to the sides.

As his arms were moving up, he suddenly turned away and reached under his coat towards the bulge. "Oh darnsies!" thought I. (Actually, my mind started screaming a four-letter word which starts with an F.) "F...!", "f...!", "f...!".....my brain screamed as I believed I just screwed up bigtime. I started to reach for my firearm, but something told me I would have to shoot before knowing what the guy was going for to have any chance. It's true what they say about how fast you think when you get that adreneline squirt into your blood. I didn't decide to shoot, but rushed him instead. I wasn't that big, but I was hard and fast and strong and creamed the guy. With a blow to the ribs I picked him up and drove him to the pavement and let my full weight fall on him with a forearm stun a moment after he hit. I had to call the paramedics.

What was he trying to protect? He had a bottle of alcohol under his arm. It started to drop when he raised his arms and he didn't want it to break.

I had a full use-of-force investigation and was found to be within policy. It was one of the reasons I left the police. Not that I hurt him, but because I didn't shoot him. Within a short period this event happened along with two others where I probably should (or, could) have shot the person but made other choices instead. A joke cadets are told in the academy is that it is better to tried by 12 than be carried by 6. I realized I didn't really want ether and, combined with some other changes in my personality from being a cop, decided I wasn't really cut out for it.

The point of my story is along the lines of seniorjudge's comment. What did the cop do wrong? It's stupid to give a man with a gun a reason to fear for his life.
 

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