Alcohol & Drugs: MIP, MIC, Intoxication MIP - observed in driveway of private residence (leaving party) by police officer

[wndsurf99]

A friend of my daughter was leaving a party where alcohol / minors were present. Police arrived and officer saw her in the driveway leaving (with no alcohol on her). Officer "observed" her condition and issued a citation for rcw 66.44.270 (section 2B) to appear at Municipal Court: City of Bellingham ... rcw section 2B talks about officer observing liquor on his/her breath (&) indication by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that she/she is under the influence of liquor.

a. That section applies to a public place -- she was at a private residence in their driveway - is that public?

b. Officer did not ask for a breathalizer test, only asked her if she was drinking... she said no... and she will maintain that story in her court appearance.

Question: What should she ask in court to learn about "the evidence" against her and decide upon whether she needs a public defender? Is the officer able to convict her based upon his opinion / night time brief observance in a driveway?

 

[CdwJava]

An unfenced driveway open to the public is, arguably, a public place for the purposes of most offenses that require such a public element.

If, upon contact, the officer smelled the odor of an alcoholic beverage on her breath or emanating from her person, that is likely all the evidence the court will require to show proof of consumption. There is, however, a requirement that the minor be under the influence or in possession of (or in close proximity to) alcohol, and that may be the harder part to show. But, we do not know what the officer's observations were.

RCW 66.44.270 (2)(b) It is unlawful for a person under the age of twenty-one years to be in a public place, or to be in a motor vehicle in a public place, while exhibiting the effects of having consumed liquor. For purposes of this subsection, exhibiting the effects of having consumed liquor means that a person has the odor of liquor on his or her breath and either: (i) Is in possession of or close proximity to a container that has or recently had liquor in it; or (ii) by speech, manner, appearance, behavior, lack of coordination, or otherwise, exhibits that he or she is under the influence of liquor. This subsection (2)(b) does not apply if the person is in the presence of a parent or guardian or has consumed or is consuming liquor under circumstances described in subsection (4) or (5) of this section.

 

[mightymoose]

A public place may generally be defined as an area that is accessible to members of the public. Your front yard, driveway, and even up to your doorstep might be considered a public place because any random person could walk right in there... however a fence around the yard that restricts access, even if a small fence, could be seen as making the same area private.

The officer's testimony to his observations is all the evidence necessary here. No breath/blood test was required. Her denial to his observations will not likely hold up. Alcohol, even if not "drunk", is easy to detect- especially for police officers trained in doing so.