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search of a juvenile at school

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K

kattrask

Guest
What is the name of your state? Colorado

My 15 year old went to school yesterday morning and was accused of "having a slight odor of alcohol". Later the principal said his eyes were all glazed and bloodshot. They weren't. The principal called me at work and told me he was going to question him and make him take a breathalyzer. I told him to wait until I got there and that I did not want him questioned without me or a lawyer present. I talked to my son and told him not to talk to anyone and not to agree to a breathalyzer. My son told the principal that he did not want to talk to anyone without me or a lawyer there and he tried to refuse the breathalyzer. I work about 45 minutes away. By the time I arrived they had forced my son to take the breathalyzer and two sherriff's deputies had been questioning him. They called me at 9:00 AM and I arrived at the school before 10:00 AM.

His BAC according to the deputies was 0.007. He had been ill and missed school for the two previous days. He had been taking cough/flu syrup that morning. He was in bed and did not smell like alcohol when I left at 6:15. He got up, dressed for school and left the house with ten minutes to spare before school started. I know this because I woke him went into his room to check if he was well enough for school. He still was sick but did not want to miss football. He did not smeel like alcohol. His little brother woke him up at 7:30 and he left for school at 7:50, arriving in time for his first class at 8:04. He walked six blocks. He did not have time to get drunk.

I'm not in some kind of denial. But I know he didn't do this. He did not have an opportunity. He had not left the house for two days and there was nothing in the house. Can a sour stomach cause an alcohol smell? He is suspended for three days, and charged with Minor In Possession.

My questions:
Was it legal for them to make him take the breathalyzer after both he and I told them he wanted a lawyer and he did not agree to take that. How accurate are those "roadside tubes"? Is it possible it was wrong? There is no alcohol in my home and I don't see how he had time to obtain any. I searched his room, nothing there. They searched him and his locker and did not find anything. Is .007 enough to charge him?
 


T

The Barbarian

Guest
Many cough syrups contain small amounts of alcohol. It sounds like the cough syrup may have made your son appear drunk. Try taking Nyquil sometime and you'll see how it is possible. .007 is a very small amount. I don't see how charges of minor in posession would ever hold up.
 

Bravo8

Member
The breathalyzer is an evidentiary tool.....that is, it is used to obtain evidence. Your son's right to counsel only applies when he is in custody and being interrogated.
 
C

CorySLOC

Guest
Schools

(Q) Was it legal for them to make him take the Breathalyzer after both he and I told them he wanted a lawyer and he did not agree to take that?

(A) I agree with Bravo on the point that a Breathalyzer is an evidentiary tool but, that is all I agree with. You can refuse to take a Breathalyzer test at anytime. By doing this other means to verify that you have alcohol in your system can be used such as Blood tests. On the question of the lawyer I think that in this case either you or your attorney should have been present before your son answered any questions. The request was made and your son was questioned. Your son still has rights that are protected that a school and its teacher’s can’t ignore. His right to an attorney was denied and therefore his rights were violated. At any rate speak to your attorney I think that he/she will be able to get this one dropped.
 
M

Mike101

Guest
It depends on who was asking the questions. If the cops didn't get there intill the test was already given then its all good. A teacher can ignore your son's rights and question him. Miranda only applies to law enforcement. If you came home and wanted to question your son and he told you that he wanted his attorney present would you go for that? Probably not. A lot also depends on school policy. Is .007 accurate? Or was that a typo?
 
C

CorySLOC

Guest
Mike 101 Miranda does apply in this case if in fact the Police did continue to question this boy after he had already made it very clear that he wanted his attorney to be present. It also applies if in fact he was forced to submit to a Breathalyzer test that he denied. I do agree with you on the point that the school can question the boy without his attorney but, once this request was made the police should have forgone or postponed any interrogation. The Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused that he/she has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him/her. When at any point during an interrogation the accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or postponed.
 
J

JazzboneCS

Guest
You mentioned a blood alcohol level of .007. I too, live in Colorado, and was searching around and found this:

http://www.colorado.edu/alcohol/students/laws.html
This web page says what the blood alcohol level is and how many drinks (approx.) it takes to get to that level. For example, A 100 lb. male with 1 drink would have an approx. BAC of .043. Therefore, .007 seems a little unrealistic in terms of actually consuming alcohol.


Hope it helps. I tried finding some type of law on an MIP, but was unsuccessful. It seems to me, that when I was in High School in Oregon, you could only get an MIP if you had a drink on your person. Of course, I am probably mistaken.

-Aaron
 
M

Mike101

Guest
CorySLOC,

Thats why I asked who was asking the questions. If the questions were asked and answered before the police got on the scene it is a mute point. I tried to make the point that Miranda only applies to law enforcement.
 

Bravo8

Member
You guys can debate Miranda all day long, but without further information from the original poster, you can't make a determination if Miranda is required.

You need to know the line of questioning in order to determine if it was interrogative or investigative. That will be the deciding factor.

Additionally, it doesn't matter because (as I understand it) the son didn't admit to anything incriminating. There is nothing to suppress.

I don't feel the Breathalyzer requires Miranda warnings, and his rights do not apply to the test. He was not forced to take the test. Possibly coerced, but not forced......there is a difference.

If the Deputies had PC that the son had been consuming alcohol, it is a lawful warrantless search. The nature of the body to process and eliminate alcohol from the system further provides an exception to the warrant requirement.

0.007% must be a typo. Our breathalyzer only reads to the hundredths, not the thousandths. 0.07% is probably more likely.
 
J

JazzboneCS

Guest
Thats what I originally thought. .007 seems far-fetched.....
 
K

kattrask

Guest
.007% BAC was not a typo. That is what the principal said the BAC was. I wrote it down and I questioned the ability of the breathalyzer to measure a value that low at the time. He does not like to be corrected. He still insists the BAC was .007. I know he is wrong, but he reiterated that BAC value in a meeting with the football coaches and counselor again this week. When I disagreed with him, he got very angry. I did not receive any documentation on the BAC. It is not listed on the summons. So I have to follow what I was told VERY LOUDLY was correct.

As far as I'm concerned my son WAS forced to take the breathalyzer. This is a fifteen year old boy being told by several authority figures and law enforcement officials that he does not have the right to refure. They may not have held him down and forced him, but for a boy who does not know what his rights are, it was a pretty threatening situation. All I asked was that they hold off until I could arrive. If there was enough alcohol present to charge him, it would not dissipate in the time it took for me to get there. The deputies had almost as far to drive as I did. They were obviously called before I was. Kyle did try to refuse and was told he did not have that option. That's pretty close to being forced for a kid. When I talked to the principal before I left work, he indicated they would wait for me to arrive, but did not.

The deputies and the principal did question him after I told the principal not to and my son siad he did not want to be questioned without me present. I don't know what the law is concerning that. All Kyle said was that he did not do anything wrong, so although I am furious that they did question him, he did not say anything incriminating. What I question is their right to force him to take a breathalyzer and need to know if I can get that excluded. Since they were charging him with a criminal offense, and were aware that I was on my way, I think they had an obligation to wait for me. I probably arrived less that ten minutes behind the deputies and they had already administered the test, written a summons, and informed him he was suspended from school. They were aware that I was on my way.

According to the label, the medicine he took has 10% alcohol. The principal now claims a pharmacist told him the is a "different kind of alcohol" and that it would not register on the breathalyzer. That is nonsense. I'm a chemist. I don't care what the breathalyzer said. My son did not have the opportunity to use anything else that particular day.
He was sober and did not smell like alcohol when I left at 6:30 AM, There is nothing to drink in my house. He got out of bed at 7:30, left the house at 7:50 and walked to the elementary school with his little brother. He was alone for less than five minutes between dropping off his brother and arriving at the school. He was on time. This is not the kind of kid who is that desperately in need of a drink first thing in the morning. He was recovering from a bout with the flu. He had not eaten anything that he kept down for two days. He had missed two days of school that week. Kyle is an intelligent boy and is trying very hard to obtain sports scholorships. He would not do anything that stupid.
 
C

CorySLOC

Guest
Talk to an attorney in your area

All I can say is speak to an attorney in your area. Give him all of the facts and let him try to sort out your problem. Regardless if you think your son is innocent or not you/him have the burden of proof. If there was wrongdoing on the part of the school and law enforcement that’s a whole separate issue. Take it one issue at a time and get a good attorney.
 

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