Alcohol & Drugs: DUI, DWI Questioning arrest, probable cause?

[winnate]

Hello, my friend is a seventeen year old male and in need of some legal advice. We will call him Joe. First of all, Joe realizes he made a huge mistake, and asks to keep emotions out of this, as he is looking for legal advice.

Joe was arrested for DWI, Theft, and Possession of Paraphernalia (A marijuana pipe, no marijuana in Joe's possession)

The reason Joe is seeking advice is because he is unsure of the legality of the arrest, and if it was in fact legal, he would like some advice to help him in court.

Now, it was Saturday night and Joe went to a party for his friend going to the Army, and was drinking alcohol that night. At approx. 2 AM he got a ride to his car from a friend and went to another friends house for approx. 20 minutes. He got angry over girl issues (which I know doesn't matter, but he wants to explain the story from start to finish to leave out any questions) and there was no alcohol left and for some reason he felt the need to get more alcohol and return to the same friends house for the night. Being Memorial Day weekend, there was a campground full of campers approx. 1000 feet behind the school parking lot, and after a couple words with his friend he left to go to the campground, alone. He parked his vehicle in the parking lot of the school, and proceeded to walk across the football field to the campground. He got there and picked up a cooler and carried it appox. 50-75 feet, near a gravel road, and left it in full view, as he decided not to take any alcohol from it. (Joe never had intention of stealing the cooler itself, he was going to take 10-12 beers and leave it for the owners, as Joe would feel bad taking the whole thing and leaving them without anything, as he had no use for the cooler) Joe went to go back to his car and saw another vehicle next to it, got scared, and walked about 300 yards to the north into a old gravel pit. After waiting an hour, Joe decided to go back to his vehicle and go home and not return to his friends. Joe went back to the football field and was about to cross it to go to his vehicle when he heard dogs barking. Startled, he laid in the tall grass for about 15 minutes, then proceeded to run to his vehicle and leave. Joe was just exiting the parking lot when 2 police officers barricaded him in, one directly in front and one to the left. They came up to his car, opened the door and told him to step out and that he was under arrest, then handcuffed him. Joe did not argue, told them his name, gave them his license and told them he refused any further questioning. Upon searching his pockets the officer finds the pipe. After lingering for about 10 minutes, he brings Joe into the nearest jail to book him in to release to his parents. He never told Joe his Miranda rights. At the courthouse Joe refused any questioning without contacting a lawyer, which they let him do. The lawyer Joe contacted told him to take the breathalyzer and to refuse further questioning politely, which he did. Joe blew a .127 on the first test and .123 on the second, and they proceeded to give him a DWI and clip his license.

When talking to his mother, the police officer said that someone saw him run across the football field and called 911, and that they where already there, waiting for seniors to pull a prank. Joe never had possession of any stolen items, but the police went and took the cooler and had it in their squad car.

My questions are 1) Did they have probable cause, as the never saw Joe or witnessed him with any stolen items, and 2) could the theft be dropped, on account of him just moving the cooler and never stealing it?

 

[CdwJava]

My questions are 1) Did they have probable cause, as the never saw Joe or witnessed him with any stolen items,

That depends on what the officers knew or believed at the time of the arrest. If someone told them that they saw him take off with a cooler that was not his and walk even 75' with it, that should be sufficient for a theft charge. Probable cause can be established by statements or other evidence, so a lot will depend on what the officers have to say.

and 2) could the theft be dropped, on account of him just moving the cooler and never stealing it?

If the DA chooses to drop it, sure. Otherwise, I see no reason why a court would drop the matter. Most thefts do NOT require any intent to permanently deprive. All because he had second thoughts about the theft and decided to dump the goods does not mean he should be rewarded for getting cold feet.

 

[winnate]

Thank you for the reply, and no one did see Joe with the cooler. The only call about him came from when he was at the football field, and there is no physically possible way they could see where he was, as there was a narrow strip of woods about 25 feet thick between the gravel road and campground and the field. The police officer came across it when driving down the gravel road, and assumed Joe was the culprit. Joe was asked if he recognized the cooler and he refused to answer questions without his lawyer's advice.

 

[army judge]

Joe needs to plead not guilty and speak to no one about any of this, including you!


He has the right to remain silent.

The state must prove his guilt.

Joe is not required to prove his innocence.

Silence is golden.

Patience is silver.

Follow the advice of an attorney he trusts.

The theft charge is the least of Joe's worries.

He's a minor that blew a .12.

That is going to be a very big problem.

Silencio. Silencio. Silencio.

 

[mightymoose]

Now, it was Saturday night and Joe went to a party

Since Joe is 17, if he is out past a city/county curfew he is already giving police a reason to pick him up.

...and was drinking alcohol that night.

Yet another reason to pick him up.

At approx. 2 AM he got a ride to his car from a friend and went to another friends house for approx. 20 minutes.

Again, possible curfew issues depending upon where you live.

He parked his vehicle in the parking lot of the school

Yet another reason for police to contact him, since that parking lot is likely closed when school is out.

and proceeded to walk across the football field to the campground.

Again, on school property in the middle of the night... Joe is just begging for the police to come talk to him.

He got there and picked up a cooler and carried it appox. 50-75 feet, near a gravel road, and left it in full view, as he decided not to take any alcohol from it.

Joe is a minor in possession of alcohol, possibly on school grounds, at 2am.... not good.

(Joe never had intention of stealing the cooler itself, he was going to take 10-12 beers and leave it for the owners, as Joe would feel bad taking the whole thing and leaving them without anything, as he had no use for the cooler)

That doesn't matter. Joe intended to commit theft.

Joe was just exiting the parking lot when 2 police officers barricaded him in, one directly in front and one to the left. They came up to his car, opened the door and told him to step out and that he was under arrest, then handcuffed him. Joe did not argue, told them his name, gave them his license

So far Joe is losing this battle badly, and the police have done nothing wrong.

... and told them he refused any further questioning.

Probably the smartest thing Joe did all night.

Upon searching his pockets the officer finds the pipe.

Crap! Busted! SInce Joe is a minor it likely does not matter if marijuana was in the pipe. Joe can not even legally possess tobacco products or tobacco paraphernalia.

After lingering for about 10 minutes, he brings Joe into the nearest jail to book him in to release to his parents. He never told Joe his Miranda rights.

Joe already refused to talk to the police. If he was not interrogated after he was in custody Miranda was not required. Many people wrongly believe that Miranda must be done as soon as they are arrested because that is what they see on tv.... not so.

At the courthouse Joe refused any questioning without contacting a lawyer, which they let him do. The lawyer Joe contacted told him to take the breathalyzer and to refuse further questioning politely, which he did. Joe blew a .127 on the first test and .123 on the second, and they proceeded to give him a DWI and clip his license.

The police are still winning.

When talking to his mother, the police officer said that someone saw him run across the football field and called 911, and that they where already there, waiting for seniors to pull a prank.

Aw, nuts!

Joe never had possession of any stolen items

Yes he did- they just didn't catch him in possession of the items.

My questions are 1) Did they have probable cause, as the never saw Joe or witnessed him with any stolen items

They certainly had probable cause for the arrest based on the DUI alone. They also likely had authority to take him into custody for the curfew status offense if there is in fact a curfew. Joe was also trespassing on school property. The arrest is solid. As for the stolen items... it does not matter so much that Joe didn't actually get away with the items, it is the fact that he intended to steal the items and did in fact move them from one place to another that is a problem. If someone saw him running across the field it is quite possible they saw him take the cooler too. Who knows what the witnesses told the police. If he was seen with the cooler, in the vicinity of the cooler, or if he made any comments about the cooler, he may have hung himself on that theft charge. It does sound a bit weak and might get dropped, but the theft charge is really the least of Joe's worries.... that DUI is a (bad word).

and 2) could the theft be dropped, on account of him just moving the cooler and never stealing it?

If they can prove he moved it, then they can prove he stole it.

 

[mightymoose]

The police officer came across it when driving down the gravel road, and assumed Joe was the culprit.

A very reasonable conclusion based upon the circumstances. It was 2am. Who else was around to move the cooler?