Alcohol & Drugs: DUI, DWI breathalizer test

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I just received my notice in the mail to appear for a diversion hearing for my mip charge. I would normally willing accept this agreement but it means my license will be revoked for 90+ days. This is an unfair punishment as in no way was an automobile involved. I am going to consult a lawyer but before I do so I am wondering as to whether I am just wasting my time and should not fight this. Mostly I am concered about whether the breathalizer test I was given was done so legally. I showed no signs of being under the influence. What happened was the officer asked my friend if he was drinking for no probable cause. He responded "no" and the officer yelled at him saying "let me smell you're breath then." After resisting the officer got in his face against the kids will and smelt alcohal. He then spun him around, handcuffed him, and threw him in a police car. All of this time he did not know names or ages of anyone involved. Another officer then gave the kid a breathalizer test which he failed. He then walked over to me and told me to take the test. I took it and blew a .037. What I am wondering is whether he had probable cause to order me to take the test as he had not speaken with me, smelt alcohal, or displayed any signs of being under the influence. He just walked up and told me to do it. Mind you the original reason we were stopped was for loitering. Also I was detained for far over an hour without being told why or if I was under arrest or even that I was being detained, after 40 minutes of sitting there I asked that I speak with an officer and one of them ran up to me and yelled "NO!". Thanks for the help as this may decide whether I will seek legal consultation.

 

[Michael Wechsler]

I just received my notice in the mail to appear for a diversion hearing for my mip charge. I would normally willing accept this agreement but it means my license will be revoked for 90+ days. This is an unfair punishment as in no way was an automobile involved. I am going to consult a lawyer but before I do so I am wondering as to whether I am just wasting my time and should not fight this. Mostly I am concered about whether the breathalizer test I was given was done so legally. I showed no signs of being under the influence. What happened was the officer asked my friend if he was drinking for no probable cause. He responded "no" and the officer yelled at him saying "let me smell you're breath then." After resisting the officer got in his face against the kids will and smelt alcohal. He then spun him around, handcuffed him, and threw him in a police car. All of this time he did not know names or ages of anyone involved. Another officer then gave the kid a breathalizer test which he failed. He then walked over to me and told me to take the test. I took it and blew a .037. What I am wondering is whether he had probable cause to order me to take the test as he had not speaken with me, smelt alcohal, or displayed any signs of being under the influence. He just walked up and told me to do it. Mind you the original reason we were stopped was for loitering. Also I was detained for far over an hour without being told why or if I was under arrest or even that I was being detained, after 40 minutes of sitting there I asked that I speak with an officer and one of them ran up to me and yelled "NO!". Thanks for the help as this may decide whether I will seek legal consultation.

I'm sorry to hear about the problem. In some states there are rules that make it permissible for police to demand an breathalyzer test from minors without a warrant (and struck down at least in one court as being an unconstitutional requirement for search and seizure of "evidence" from the defendant's body.) I'm not sure what the standard is in your state and also whether or not you refused or just consented to the test. You could claim that you felt that you were forced to do with without choice. I'm not sure how much that will help you.

Honestly, I don't know enough about the case, the specifics and especially not your jurisdiction. Going to a lawyer for a consultation would only benefit you and give you the specific advice you need to hear. From the above facts, it appears that perhaps the officer really had no problem smelling the alcohol and thus might trigger a test for probable cause of some type. I'm not a specialist in this area of law and it involves a special type of case.

Best of luck and let us know how things turn out for you.