this wasn't legal, was it?

Factual Questions
1

i am in a borrowed car. i am one of two passengers. we two passengers have been drinking and, while under 21, are pretty wisped. the driver, who is also 21, had had one drink at like ten or eleven (he was turntabling that night at a party, which we had just left because it was over, and were going to a diner called “Tom Jones”, and he doesn’t like to drink whilst trying to scratch). the time is like three in the morning.

may i add that the driver is black. the two passengers are white. all of the cops who later got involved (ewok, noriega, officer retardo motgomery) were white (and mean). so we are going down the road, a car coming towards us (in the other lane, mind you). he pulls a superfast uey, and directs us to the side of the road. three more cop cars come in quick succession.

the driver asks “what seems to be the problem, officer?” (note: none of the cops were southern, but it’s funner to read their lines as if they were) “Well, seems you got a busted taillight. Hey, i can smell beer. You been drinkin?” Editor’s note- cold november night in philadelphia, maybe 20 if we’re lucky- i doubt the guy could smell how full of shit he was, let alone beer fumes in a car with three guys smoking menthols and the windows down. But i will give him the benefit of the doubt.

The driver was asked for his license and registration. he gave both to the officer and explained that this was a borrowed car. the cop breathalyzed him, and he blew a point zero one. that’s right, .01. then, without asking if we were over 21 or getting id from us, myself and the other passenger were breathalyzed and both blew .10’s, and then and only then were we searched (again, without our consent). thank the good lord god none of us had anything on us. so we were all arrested, and even though i turned 21 shortly thereafter, i am still being jerked around by the fucking suburban law system because of this.
and now, the general questions. we were stopped for a busted taillight (which as far as i know is not an arrestable offense), and the driver of the car blew under the legal limit (in PA, .02 is DUI for under 21), and was not legally intoxicated. but he was still arrested and the car towed.

i have doubts about the legality of that. and if in fact it’s bullshit, would that invalidate the rest? we were only breathalyzed because he had been pulled over. as soon as his thang was over with, we shoulda been free to go. does being a passenger in a car somehow waive some rights? and he breathalyzed us without proof that we were under 21, and then used a .10 result as justification for searching us. can he search without consent in that situation? he also searched the car w/o consent.

anyway, i wish i had written this back then, cuz i was REALLY angry and the story would have been a lot better. can anybody advise me as to the legalities of the situation?

jb

2

Sounds like pure bullshit to me, but I wouldn’t know about the legal side of it.

3

IANAL, I repeat, IANAL

but this sounds like a case of illegal search and seizure. I don’t know if being drunk while under 21 is an arrestable offense (and I’m not talking about DUI, just being drunk), but I kinda doubt it.

How long ago was this? I think you could make a pretty good defense and make it all go away, with a decent lawyer.

Averye0

4

I ANAL? i have no idea w/t/f that means, but waaaaayyy to many hunches.

5

The whole thing seems kind of suspect to me, not that I’m not an expert or anything. One thing I noticed was about the reason for being pulled over. Don’t know about PA, but in VA you cannot be pulled over for having just one taillight out, both must be out before a cop can pull you over for it. If the law is the same in PA, a good lawyer may successfully argue that that invalidates the rest, I’m not sure. That is, assuming the cop doesn’t lie about it in court.

6

Uh, probably obvious, but there’s one too many "not"s in my first sentence up there.

7

i am not a lawyer. it makes snese.

or rather, sense.

8

farley, IANAL doesn’t refer to one’s attitude towards tidiness, it’s an abbreviation (or acronym, if you like making those sentences) for I AM NOT A LAWYER. Somewhere there’s a thread (probably in About This Message Board) on the common abbreviations used. sometimes you’ll see IANA used with other professions, but since legal advice is so often solicited, and solicitors rarely give it out free, IANAL is seen often.

Anyways, I’ll just say IANAL. It may come down to state law on this one, but I’ll give a bit of a guess. Since this is purely speculative, let’s assume that this is being judged in some omniscient court where all the facts are known (and doesn’t come down to the officers’ story vs. your guys’ story). Given a courtroom’s general bias towards the authorities, and only one sober person on your side, you’d lose if it came down to that.
I think the officers have a reasonable right to search you, or your car, if they think there’s something criminal going on. Although they might have been pushing it a little bit, this point you probably wouldn’t have been able to fight. it doesn’t much matter what age you are, and they didn’t need to see your ID either.
As to your arrest, were you ever informed as to what you were being arrested for? That part seems the worst on their side. The only reason I could guess at are possibly one could be arrested for under-21 drunkenness; that doesn’t explain the driver. If anything, he should have had no problem whatsoever - unless they take broken taillights really seriously out there.

If the driver or you were willing, I think you could have fought it and at least won on some points.

panama jack

9

actually, (and this may conflict with something else in the OP), while we were at the station, in cuffs, getting processed, we were told that we hadn’t been placed under arrest. they also never mirandized us (which i guess isn’t a problem if you aren’t under arrest- although the handcuffs did fool us).

10

IANAL, But if I remember rightly, In Texas if the police put handcuffs on you, they MUST charge you. (But there is one exception, which I don’t recall.)

This whole situation is beginning to sound more and more like a case of being charged with “driving while black.”

I would think that a good lawyer would be able to make a good case for unlawful detainment.

11

Ok, here comes the “IFs”!

If there is nothing preventing them from pulling you over with ONE broken tail light (there isn’t here in Florida) then the stop was legit. We will assume it is.

Now, he approaches the driver and smells the destinct odor of an alcoholic beverage on the drivers breath. (We are giving him that right?) If you are correct about the legal limit there and you are correct that he blew UNDER the limit, then there is just one question left. Was the driver given a field sobriety exercise? Walk a line, touch your nose kinda thing. In this state, a breathalyzer is only prima ficia evidence. If you appear to be impared, as determined by sobriety exercises then you can be arrest no matter what you BAL is. If they did have some legit reason to arrest him, then they can legally search the passenger compartment of his vehicle and impound it. I think they probably wronged this guy the most.

Now, on to you and your other buddy. Did he ask you to get out of the car without any reason or justification? Too bad, he can do that Mimms vs Pennsylvania. I will assume everything you said about him not IDing you is true. Now IF you two were very obviously under 21 (do you look very young) then he may be able to articulate that in court and justify is breathalyzer by saying you were “obviously a minor”. IF you have a law about minors being drunk (we do) then he can now arrest you. Since you are arrested now, they can search you.

No, about that crap when they told you that you were not under arrest…
You did get charged right? You had to go to court and everything right? Well then you were under arrest.
They CAN handcuff you without arresting you, and they DO NOT have to read you your Miranda rights just because you were arrested. Miranda is needed only when they solicit a statement from you. The problem, is that they cannot TRANSPORT you to a station without arresting you. So I am pretty sure you were under arrest at the time, but it does not matter that you were not read Miranda.

I think your strongest argument would be where they made you blow in the thing without asking you about your age or anything. Wait… DID he ask you?

The driver, if all the facts are straight, seems to have been screwed the most. I think he has the strongest argument!!

Anyway, I thought maybe I could be a little help clearing things up. But I wasn’t there so it is pretty difficult. There may be some little thing the cops did that you do not remember because you thought it was insignificant at the time, but it could change everything.

12

jb, I have some expertise in this area. An unlit tail light or license plate light is probable cause to make a stop in California. But giving passengers BAs, or arresting one even if he is staggering drunk is bullshit as far as I am concerned. Only if the driver fails field sobriety does he get the BA. If the driver blew a .01 that should have been the end of it because the case for impaired by alcohol could not be proven. “Have a nice night sir” and away you go.

Maybe you don’t remember some small detail like the two keys of crack you had under the seat or something like that.

13

Revedge, Texas law enforcement can detain someone for 24 or 72 hours (can’t remember which; I think 72) without pressing charges. I assume that probable cause is required.

RE the OP: sounds like DWB to me…

14

Once the police stop you, and you are not free to go, you are 'under arrest", even if never arrested for a crime. Handcuffs do mean you are “under arrest”*. If the cops have stopped you and are screwing around, and you are innocent of anything they can find out about there, just ask: “can I go now?”, or “I guess I’m free to go”. If they say no, the ask, “Am I under arrest?”, and if they say No, then ask again “Then I am free to go, then, right?”.

It may not be illegal to be under 21 (but over 18) and drunk, depends on your state, etc. Such a law might be unconstitutional, also. Try the ACLU.
*There is a big difference between “arrested and charged” and “detained”, but they are both “under arrest”.

15

That may be true where you are Daniel, but not everywhere. There is something called “Detaining”.

Let me run you through a quick description of how things are in Florida.

An officer can always come up and talk to you for no reason whatsoever. No suspicion is needed. In this situation, you are free to go if you want.

If an officer has “reasonable suspiscion to believe a crime was commited, is being commited or is about to be commited” he may “Detain” you for a “reasonable” amount of time. This may even envolve handcuffs and you may even be sitting in a Police Car at this time. But you are not under arrest. And just try asking the cop if you can go. :slight_smile: An officer cannot transport you though. If you are being detained, he or she has to keep you there. So if the officer sees you running, and you fit the description of someone who just mugged an old lady, the officer will detain you. Then they will bring the old lady by to identify you. See, they cannot bring you to the old lady because that would be transporting you. They have to bring the eye witness to you. This is also what is going on when an officer thinks there is drugs in the car, they can detain you while a doggy sniffs around.

An arrest. An officer needs “probable cause” to believe you have commited a crime to arrest you. Everyone knows what happens here so I will not get into it. But he does not have to read you Miranda unless he asks you questions that he plans to use against you. Like “What were you doing in that building wearing a mask and holding a crowbar. Are those your VCRs?”

I have to believe that it is pretty much like this everywhere. I would like to see a source on that “cuffed=arrested” thing. It could possibly be like that there but that would really suck for the cops…
-Bear

16

Well, while this may be the law, have you ever tried walking away from a cop when he’s attempting to grill you for no apparent reason? Doesn’t work. The officer will get inflamed and begin using defense moves on you. It might not be policy, but the one night a friend and I were talking across the street from a pulled over vehicle, this is what happened when I attempted to leave.

The officer huffed and puffed and got insulted when I asked him if I was being detained or arrested. He asked the routine questions(I.E.- “How much coke you do tonight boy?..How much did you have to drink?” Etc, ad infinitum), then put me through an FST anyways. He put me in a hammer-lock when I attmepted to leave(I lived across the street). He then forcibly took my ID card out of my wallet while I was still in the hammer lock.

Daniel, in Ca, Detention does not=arrest. You have been arrested, but you are not under arrest per se. I’d give you an personal example of this, but I think I’ve already made myself look bad enough with the above experience :slight_smile:

17

‘Detention does not=arrest.’ It’s called voluntary detention.

Get a lawyer, spend the $700.00 they cost maybe you can get out of it.

18

Disclaimer: this is based on Texas law and may not apply.

If I remember right, traffic law states that you must have two working tail lights. Most newer cars have three: one on each side and one in the middle, above the trunk somewhere. If only one light was out, there should have been no reason for a stop.

Also, the fact that a minor is drunk means nothing. You may have gotten a Public Intoxication ticket if you were walking down the street, but since you were in a car, it does not apply. The other offense you may have been charged with would be Minor in Possession, but if you had no alcohol on you, you couldn’t be charged with this either.

In Texas, there is a no-tolerance law for minors drinking and driving. If a minor blows positive for BAC at all, they get a DWI. Total BS, but that is the law. You did say the driver was 21, right?

Don’t get me started on illegal searches. However, if the actual arrest stands up for some reason, then the search was maybe technically legal, although I think you still need probable cause that something in the car might be illegal (drugs found in the passenger compartment, gun in the car while no one has a concealed carry permit and so on), and alcohol, while illegal for minors to possess and consume, should not have been cause to search the entire car, especially if there was no alcohol found in the car at the time.

19

While this does seem to be a case of “driving while black,” what are the chances that if three young (drinking) men are in a car at midnight and immediately say the car is “borrowed,” that the car is borrowed? I think the police were focusing more on a possible stolen car. However, this does not justify the initial stop.

20

uh, lemme clarify a few things. the driver was under 21, but in PA (even with Zero tolerance) you must blow a point zero two to be driving while intoxicated (don’t even get me started on .02 being ‘intoxicated’).

the police officer did in fact transport us without telling us that we were under arrest, and later told us ‘don’t worry, this isn’t an arrest’ (after we got to the station). i know for a fact that pennsylvania police have a right to search som parts of the car (driver and passenger area, but not trunk) without consent or probable cause. i do not know if that same right extends to my person, but that’s how he acted. he pulled us out (actually, asked us to step out of) the car. myself and the other passenger. since i was sitting in the hump seat of the truck (it was a truck) the other guy got breathalyzed first. then i got breathalyzed. the cop then searched us.

this was the funniest part afterwards. there were six or seven cops to ‘arrest’ three guys, none of whom were putting up any kind of struggle, all of whom were trying to cooperate (in the hopes that, since the only problem was a busted taillight, we might get off). the officers were sreaming at us, barking orders around, really just being dicks.

noriega (aka pocky): “whattya got in this pocket?”
me: uh, my student id, some money, a lighter and a tube of chapstick.
pocky: (after searching) (very accusingly) there’s no chapstick in here.

pocky: what’s in this pocket?
me: uh, gravity’s rainbow.
pocky: gr-whista-WHAT?
me: a book. (he takes it out and throws it to the ground)
retardo: place your hands on your head!
ewok: keeps your hands on the car!
retardo: do you have any guns, weapons, drugs, or other paraphenlia on you?
driver: yes. i have two needles in my pocket.
retardo: which pocket?
driver: (gestures)
ewok: keep your hands on the car!
(at this point the cops are positively insane, drooling all over themselves, generally acting like my dog when i ask him ‘do you wanna go for a WALK?’)

they were turntable needles.

guuuh. more to come.