Back when I used to live in an oppressive police state, I once ran into trouble with the cops while drunk at a college party (me, not them). They grabbed a hold of me and told me I had no choice but to take a breathalyzer. So I did, and ended up with a public intoxication conviction.
Having since left Indiana, I’m still curious about the legality of this. Can the cops really force you to take a breathalyzer? (I know that in many states, if you refuse a breathalyzer while driving, your license can be confiscated. But I’m talking about just walking around.)
On a related note, what happens if I refuse to let the airport security people check my bags?
A lot of people think they know these answers but have no proof whatsoever. And no wonder - state legal codes aren’t exactly helpful, or even intelligible (I’ve checked). So please post if you have some kind of evidence.
You have no constitutional right to fly on a plane. If they want to search your bags, that’s totally up to you to let them. However, if you refuse to let them, they can refuse to let you fly. Same with any private industry. If a local diner wants to search everyone who comes through the door, then you can either let them or eat somewhere else. It’s up to you. You’re not being forced to do anything.
On the other hand, you do have a constitutional right against certain searches of your person, including a breathalyzer. Remember that driving is a privledge, not a RIGHT. You agree to consent to any BAL when you sign for your license.
You still have the right to refuse. But if you refuse, they have the right to take your license away. There are certain exceptions. For instance, if death or great harm to a person has occurred in an accident related to your drunk driving, the police can USE FORCE, to make you take a blood test. This is usually done at a hospital where they draw blood.
Public drunkeness. You are not required to take any breath test. They used their Jedi mind tricks and convinced you to do it willingly. But they cannot force you to do it. Had you not taken the test, most likely they would have arrested you anyway, only their case against you would not have been as good. But you still go to jail.
I know the answer to your breathylizer question but I hold most police officers in high regard. But nimrods that call them pigs don’t deserve an answer in my book.
In such circumstances, is it possible to allow the police to conduct a breath test (or, say, an automobile search) “under protest”? In other words, if several large cops put their hands on you and say “blow in this tube or else,” you may not be inclined to find out what the “or else” means. If you’re stopped on a dark country road in the middle of the night, and a man with a gun asks if he can poke around inside your car, you may think it’s a bad idea to say go away. Obviously an honest cop will play by the rules, and a bad cop will do what he wants no matter what you say. But is there some formula by which you could *allow * the test or search without consenting to it, and thereby have a chance of rendering the results invalid as evidence?
Absolutely. It is never a smart idea to resist when a cop is trying to force you to do something. But you need not consent to a violation of your rights. Cops are allowed to, and routinely do, mislead you about your rights. If they ask if you consent to a search, say no, and if they insist on conducting the search anyway, announce clearly that you do not consent to the search. Google “know your rights” and you’ll find more detailed information.
Great! Maybe we can share information … you can teach me what you know about pigs and breathalyzers, and I can teach you how to spell it.
As for the word “pigs”, is it okay to use it? “Pigs,” I mean. Hmmm … pigs … tough call. I call 'em pigs when they act like pigs, that is, when they lie to kids they’re arresting for victimless crimes, the only purpose of which is to generate revenue for the state through court fees. Pigs - seems pretty descriptive to me. Thanks for hearing me out on this issue, regarding pigs.
Just to reiterate … in my personal experience I wasn’t driving, so DUI doesn’t apply. I don’t consider that to be a victimless crime, obviously.
Rats… forgot to say YMMV. Florida still allows for blood to be drawn against the will of a person who was intoxicated and caused death or serious injury.
** leadbuffalo**. If you wish to continue posting to this board, then learn the rules.
Starting out a GQ thread by pitting the police ain’t a good idea. Ask your question without all the attacks. If you must, start a thread in the Pit to air your gripes. Don’t do this again.
racer72 This is GQ. Don’t call another poster a name (nimrod). Take it to the pit.
In Skinner v. Railway Labor Executives Ass’n, 109 S.Ct. 1402, which can be viewed here, the United States Supreme Court found that the administering of a breathalyzer test is a search under the Fourth Amendment. They stated:
So, in general, the police cannot force you to take a breathalyzer. They also cannot force you not to post an insulting, rude, and immature OP, so you’re O.K. there too. Samclem however, has powers beyond those of mortal man or police.
I didn’t notice this comment the first time. Constitutional law is the relevant law, so you’re going to want to look primarily at Supreme Court decisions (e.g., the one cited by Hamlet). State legal codes won’t address these issues much. I am basing my answers on the knowledge I gained while becoming a lawyer.
To sum up, you would probably have grounds for contesting the charge if you did not actually consent to the test. However, I’m not sure what evidence is usually sufficient for a public drunkenness charge - they may have been able to arrest you anyway, based on your observable behavior.
So if your driving and you refuse a breathalyzer they take you to jail and you lose your license, but what happens if you refuse one at say a party they might arrest you anyway but could they do anything like take away your license? Cause that would just suck :mad:
Crafter_man’s cite refers only to driving under the influence instances. The law here seems clear.
Hamlet’s cite seems more relevant to the OP. Since it seems the breathalyzer is a search, can the evidence be thrown out if it is proved that the police lied and coerced/compelled the test? Chula and Testride suggest it would not be permitted. In this case, the police are not asking for consent, they are ordering the subject to act against their will.
Similarly, I’ve been subjected to something like this:
I’m pulled over by a squad.
Me: “Good evening, Officer. Did I commit a driving violation?”
PO: “Dat’s right. Yous didn’t make a complete stop back dere on Elm.”
Me: “Erm, with all due respect, sir, I believe I did completely st…”
PO: “Outta da car, wiseguy. Stand over dere. We’s searching your car and trunk.”
Me: “Errm, I don’t really have time for this.”
PO: “Don’t make me mace an’ cuff yous.”
This isn’t a “Mind if we peek in the trunk?” consent case. 30 minutes later, my licence and insurance info are thrown on the ground and the officers squeal off without an apology. My car is ransacked and I’m late for work and have to explain to my boss that I was detained by the police, making me look like a criminal. Bullying, mean-spirited and arbitrary police like this deserve whatever names they are called.
The police may lie to you and coerce you to consenting to a search. However, they may to compel you to be searched unless the search is lawful according to the Fourth Amendment. There is an “evanescent evidence” exception to the search warrant requirement, which applies in situations where the evidence is likely to disappear if they wait for a warrant, such as when blood alcohol level is at issue. I’m not sure how much cause the police need to rely on this exception.
You should know that that different rules apply when you are in a car, jnglmassiv. The police may search your entire car if they have probable cause. Unless there is more to the story, it sounds like they crossed the line. Not sure if you have a remedy though, because they let you go.
To whom? Based on the accent shown for the cops in the story, I’d say you’re dealing with Chicago cops here. Are you going to call the officer’s desk sargent? He’ll just laugh… Even your alderman will hang up on you for calling about a “Unreasonable search”. So you complain to your lawyer. He’ll tell you to let it go too if he ever wants to get a case in front of a judge again. There is zero recourse available to you. Chicago cops get away with whatever they want.