Underage Drinking NOT Driving

What is the name of your state? WI

I declined a PBT breathalyzer. I wasn't driving, just under 21 (I'm 20). In the police report, the Ranger wrote I was issued the ticket anyway because he smelled "intoxicants" on my breath. How strong is this as evidence against me? Can the case be dismissed because there is no evidence?

BigMistakeFl

On the contrary, there is a case against you and it will now be your word against the cop's word. By refusing, your license will be suspended by your DMV, and a case for DUI and Minor in Consumption will likely be brought against you. Check out "Implied Consent" and you'll get the picture.

Implied Consent only applies to driving and I was NOT driving. I didn't even have my car nor my car keys with me. I was just at some party. So is the ranger's sense of smell evidence? My word on this is that he just smelled alcohol in the area.

I think the OP was cited merely for underage consumption and NOT for driving with alcohol on his breath and being under 21. In any event a PBT is a field sobriety test device and not, necessarily, proof of inebriation.

However, since this has nothing to do with impairment - only consumption - the officer's observation should be sufficient to convict. Additionally, the refusal MIGHT be allowed in to infer a consciousness of guilt.


- Carl

orange12 said:

Implied Consent only applies to driving and I was NOT driving. I didn't even have my car nor my car keys with me. I was just at some party. So is the ranger's sense of smell evidence? My word on this is that he just smelled alcohol in the area.

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Contrary to the belief of some, alcohol has a very distinct odor as it is being metabolized through the body and expelled from the pores. If the ranger says he smelled alcohol "in the area" that is not the same as smelling it emanating from you. So, if he says he smelled it coming from you and on your breath, that should be enough to do you in.

- Carl

Thank you Cdw, you are correct, I was no where near a car. Can't the court not use my declining a breath test against me because it is my Constitutional right? Shouldn't the ranger have found some other way to test me, perhaps arrest me, something? All I see that he did was go back to his car, write down that he smelled alcohol, and fill out a ticket form. So does he have evidence or is there doubt, possible mishandling of this situation?

So the court takes the ranger's word? It's unfair, he could've written the ticket because he didn't like me.

orange12 said:

Can't the court not use my declining a breath test against me because it is my Constitutional right?

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An argument can be made either way. A judge might allow the FACT that you refused into evidence so that the judge (or jury) can make up his/her/their own mind(s). A judge could also refuse to allow the evidence in as prejudicial.

However, the ranger will STILL have his observations - including what he smelled.

Shouldn't the ranger have found some other way to test me, perhaps arrest me, something?

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He is certainly not required to haul you to jail and strap you to a gurney to forcibly remove blood. Under federal case law, he could have done so ... but it's generally not cost effective for a low-level offense about as serious as a speeding ticket.

All I see that he did was go back to his car, write down that he smelled alcohol, and fill out a ticket form. So does he have evidence or is there doubt, possible mishandling of this situation?

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No mishandling at all. He cited you, recorded his observations, and now you get to go into court to make a defense.

You might consider asking for diversion of some kind - if that is available in your state for this offense.

- Carl

orange12 said:

So the court takes the ranger's word? It's unfair, he could've written the ticket because he didn't like me.

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The presumption is that he has no motive to lie. Unless you can cast reasonable doubt on the veracity of his claim that you had been drinking, his observations will likely stand.

The alternative is that you got hauled in, booked into jail, and they had a nurse stab your outstretched and secured arm until he or she found a vein to draw a couple vials of blood.

If one of my officers did that, I'd spank 'em! Too expensive!

It's not worth the expense or the effort.

- Carl

It's not worth the expense or the effort.

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Ouch, how about the inhumaneness of the whole thing? Anyway, thank you for your help. Anyone who has gone through a similar case or seen one or know any where to read about one, let me know. Thank you again.

orange12 said:

Ouch, how about the inhumaneness of the whole thing?

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Well, if someone refuses to provide evidence the courts have said that the evidence can be taken since it is being metabolized.

Only if the manner of the taking shocks the consience of the court will it be deemed beyond the pale.

This is really a very minor issue ... you really shouldn't stress too much. If you are that worried about it, contact an attorney. You might be able to get a nice plea deal.

- Carl

Can you let me know the case

Cdwjava,

In your posts, you said you were aware of a federal case(s) that said a cop could haul someone in and forcibly remove blood for alleged underage consumption. I am curious what the case is, because I have seen other cases where they found that to be constitutional violation and suppressed the evidence.

If I remember correctly, the cases basically held that underage consumption was a minor infraction that did not give rise to the lost evidence concerns of more serious offenses (e.g., DUI). As such, a warrant issued by a court is required to forcibly draw blood.

I am curious what the name and cite of the case you are referring to is. I'd love to read it.

I personally also think the claims that anyone on earth can reliably smell alcohol to be bogus. That isn't to say a judge won't convict based on "smell," as many judges shirk their responsiblilities on such low level crimes. But I'd be curious if anyone challenged the admissibility of such evidence on the basis of its unreliability (e.g., making the officer prove their an expert on smell and can in fact distinguish the difference in smell between a budweiser and an O'Doulls).

CavalierLion said:

In your posts, you said you were aware of a federal case(s) that said a cop could haul someone in and forcibly remove blood for alleged underage consumption. I am curious what the case is, because I have seen other cases where they found that to be constitutional violation and suppressed the evidence.

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There are a number of cases and theories that allow this. Remember, blood that is metabolizes is evidence that is being destroyed. Under the federal standard, this allows for seizure of the evidence as an exigency - and the blood IS evidence.

Here are some state and federal cases:

* Generally, a person lawfully arrested for driving under the influence may have a bodily fluid or breath sample forcibly removed without his consent, incident to the lawful arrest, provided it is done in a reasonable, medically approved manner. (Mercer (1991) 53 Cal.3d 753, 760; Hawkins (1972) 6 Cal.3d 757; Sugarman (2002) 96 Cal.App.4th 210, 214.) Furthermore, doing so does not violate the suspect's "due process" rights. (Belgarde (9th Cir. 1997) 123 F.3d 1210, 1214.)

* A warrant to obtain the sample is not required. (Schmerber (1966) 384 U.S. 757; Hawkins (1972) 6 Cal.3d 757; Carleton (1985) 170 Cal.App.3d 1182; Sugarman (2002) 96 Cal.App.4th 210, 214.) According to two California Court of Appeal cases, a formal arrest is also not required, as long as probable cause to arrest exists. (Trotman (1989) 214 Cal.App.3d 430, 435; Deltoro (1989) 214 Cal.App.3d 1417, 1425.) The federal Ninth Circuit Court of Appeals, after first holding otherwise, now also agrees. (Chapel (9th Cir.1995) 55 F.3d 1416.)

* "Forcible" removal means only that the sample is physically taken from the driver without his consent. It is thus a "forcible" removal of blood for constitutional purposes where the subject sits passively and his only "resistance" is his refusal to consent. (Compare Cole (1983) 139 Cal.App.3d 870; Barrie (1984) 151 Cal.App.3d 1157.) The physical compulsion or force used to accomplish sample collection must be reasonable under the circumstances. (Kraft (1970) 3 Cal.App.3d 890.) It definitely cannot be brutal or shocking to the conscience. (See Kraft (1970) 3 Cal.App.3d 890; Fite (1968) 267 Cal.App.2d 685.) Where the force is excessive, it is unreasonable. (Hammer (9th Cir. 1991) 932 F.2d 842; Kraft (1970) 3 Cal.App.3d 890.) Use of excessive force in obtaining a sample will make it inadmissible. (See McDonnell (1975) 45 Cal.App.3d 653; Kraft (1970) 3 Cal.App.3d 890.)

And there are many more.

If I remember correctly, the cases basically held that underage consumption was a minor infraction that did not give rise to the lost evidence concerns of more serious offenses (e.g., DUI). As such, a warrant issued by a court is required to forcibly draw blood.

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Maybe that's the case in your state. And, it is very possible that holding down a minor in order to draw blood for a consumption charge would indeed exceed the reasonableness standard. I know I would not approve of it for my officers. But, that does not mean the law prevents it from happening.

I personally also think the claims that anyone on earth can reliably smell alcohol to be bogus.

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Did I actually say "anyone"? I don't recall saying so, but ... Okay. I will reiterate ... MOST everyone can smell alcohol on another person. Maybe you can't, and maybe some others can't. I know *I* can, and so can virtually everyone I know - particularly cops.

That isn't to say a judge won't convict based on "smell," as many judges shirk their responsiblilities on such low level crimes. But I'd be curious if anyone challenged the admissibility of such evidence on the basis of its unreliability (e.g., making the officer prove their an expert on smell and can in fact distinguish the difference in smell between a budweiser and an O'Doulls).

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There are some states that do not permit "smell" as reliable evidence. Mine is NOT one of those states. Additionally, since consumption sometimes requires a little more than JUST smell, the issue of O'Douls and Budweiser has never - to my knowledge - been raised.

As for expertise, I once had a guy try to challenge my assertion of smell (I made the mistake and articulated in my report that I smelled WHISKEY on his breath as opposed to alcohol). He inquired about my training and experience and only then found out I had 5+ years as a restaurant and bar manager - to the court's knowledge, I was the first person
ever certified in San Diego County as an expert in the odor of alcohol.

- Carl

Thanks for the cases - unfortunately none are applicable

After review those cases, none are applicable to the case of underage consumption. They all deal with the very very different situation of drunk driving.

Also read the Scherber case carefully. The language in that case makes it very clear that the 4th amendment does not permit the warrant requirements to be tossed aside for minor violations. If anything, this case shows that a warrantless breathalyzer or blood draw for underage consumption would violate the constituion.

I'd like to point you to the Maness case, where the Mr. Maness sucessfully sued the officers and county for administering an breathalyzer against his will for a charge of underage consumption. He was awarded a substantial settlement that he used to establish a scholarship with.

Also, please see the federal decision of Spencer v. Bay City that found warrantless breathalyzers for pedestrians under 21 that an officer believed consumed alcohol to violate the 4th amendment. This federal decision has a good anaylsis of the above cited Scherber S. Ct decision.

I also point you to the Pennsylvania Supreme Court decision of Commonwealth v. Roland (1994) . There the police witnessed what they believed to be underage drinking inside a house and entered the house without a warrant. This was found to violate the 4th amendment.

Thanks for the cases, but after reading them, it is a very very good thing that you do not permit your officers to forcibly draw the blood of those accused of underage consumption, as that would possibly (even likely) give rise to civil liability against the county and the officers.

PS - Although I recognize that you believe you can smell whiskey, I do find it quite humorous that a judge would certify you as an expert on the smell because you were a bar manager. I'm betting that the defendant was not represented.

CavalierLion said:

After review those cases, none are applicable to the case of underage consumption. They all deal with the very very different situation of drunk driving.

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The issue of evidence seizure and exigency remain the same. There are dozens of cases dealing with exigency and the forced seizure of blood for drug and alcohol cases. Again, the standard is the same - that it not shock the conscience of the court.

Also read the Scherber case carefully. The language in that case makes it very clear that the 4th amendment does not permit the warrant requirements to be tossed aside for minor violations. If anything, this case shows that a warrantless breathalyzer or blood draw for underage consumption would violate the constituion.

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It's Schmerber. And the three prong test is as follows:

- there must always be probable cause to conduct the search;
- the need for the search must outweigh its intrusiveness; and
- police must employ reasonable procedures in conducting the search. (Schmerber (1966) 384 U.S. 757, 768.)

It is ARGUABLE that a forced taking of blood in this circumstance would be unreasonable, it is not a guarantee. As I said, I can't imagine forcing blood for a simple consumption case that can be proven by observations alone.

I'd like to point you to the Maness case, where the Mr. Maness sucessfully sued the officers and county for administering an breathalyzer against his will for a charge of underage consumption.

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I can't find any case on Maness that lists as being relevant in CA, so perhaps if you could point a link to that case? In any event, a civil case is not generally controlling case law and is often based upon individual circumstances.

Also, please see the federal decision of Spencer v. Bay City that found warrantless breathalyzers for pedestrians under 21 that an officer believed consumed alcohol to violate the 4th amendment. This federal decision has a good anaylsis of the above cited Scherber S. Ct decision.

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I won't go into detail there, but that dealt with an issue of a municipal code and agency practice and was made on a summary judgment and NOT fully litigated. The court found there to be insufficient evidence presented to decide for the city so they ruled in favor of the plaintiff.

This decision is very limited and certainly not binding on California.

I also point you to the Pennsylvania Supreme Court decision of Commonwealth v. Roland (1994) . There the police witnessed what they believed to be underage drinking inside a house and entered the house without a warrant. This was found to violate the 4th amendment.

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Without even looking that one up, I can see a number of problems on the face of that. But, again, not binding out here and not relevant to the taking of blood against one's will.

Also, in all my years, I can count on one hand the number of adults or minors who have physically FOUGHT the extraction of blood. Usually they refuse to cooperate, but do not fight the extraction.

Thanks for the cases, but after reading them, it is a very very good thing that you do not permit your officers to forcibly draw the blood of those accused of underage consumption, as that would possibly (even likely) give rise to civil liability against the county and the officers.

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Liability is but one issue. The other is that the expense is not worth it. Not only would it cost the agency far more to take and process the blood than it could ever receive in a fine, but the matter can be proven through observations and statements just fine. If there is no real evidenciary value in taking the blood, why do it?

The point is that it CAN be done, and it might very well be lawful - depending on the specific circumstances in an individual case.

And we do often take "forced" (i.e. not voluntary) blood from people suspected of being under the influence of drugs - even minors. So, while it might not be as commonplace for issues of misdemeanor consumption, it IS common practice for issues involving misdemeanor use of a controlled substance.

PS - Although I recognize that you believe you can smell whiskey, I do find it quite humorous that a judge would certify you as an expert on the smell because you were a bar manager. I'm betting that the defendant was not represented.

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Actually, he was represented by counsel. The issue that the defense raised was a question regarding my training and experience in the odor of specific alcohols ... unfortunately he had not done his homework.

In all, we found it humorous (the judge, too). I doubt I would ever have reason to use the issue again, but it did cause some measure of levity in the courtroom.

In the same case, the defense asked the officer taking the collision part of the report (it was a DUI crash) how he could come to a conclusion that his client was at fault for the crash ... oops! That officer just happened to be trained in advanced accident reconstruction and was the #2 man in the agency for collision investigations.

Sort of like the attorney that argued I did not have sufficient training and experience to justify an opinion that his client was under the influence of a CNS stimulant ... had he done his homework he would have found that I was a DRE.

Sometimes the defense asks the wrong questions, barks up the wrong tree, and gets blindsided.

- Carl