USA - Underage consumption - refused to blow

[ADVOR]

SWIM doesn't want to make this story too long, so he'll lay down the basics. SWIM pulled onto the side of the road so his friend could get directions (3 hours from home) to find his girl. A cop pulls up. Note that SWIM has consumed 1 energy/alcohol drink and that is all. At the time the police officer pulled up, SWIM was outside of his car leaning onto it. (Possible DUI?) The cop did his job and searched us, etc. He asked to search SWIM's car. SWIM said "This is my mother's car, I would rather her be here for that to happen". Immediately after, one officer said, "It's in your possession now" and they began searching it WITHOUT SWIM'S CONSENT. They found a couple bloody marys, a half open bottle of vodka and empty cans of sparx. SWIM was not lying, he only consumed one can of sparx. He did not tell this to the officers. They then asked if SWIM would take a breathalizer test. SWIM refused the breathalizer for he was afriad they would slap him with DUI, reckless endangerment, underage, etc. So they threw SWIM in jail on a $500 bail. He got out the next day.



Sorry for the long story, but here is my question. Will SWIM be able to fight this/these charges in court? There is no evidence that I was under the influence of alcohol, and the alcohol they had found was found during an illegal search. Do you have any advice for SWIM? His court date is tomorrow.

[doggy_hat]

As far as I'm aware there is no such thing as an illegal search, they could just say they had probable cause. And saying I don't want you to violate my priavacy must mean you had something to hide, which gives them probable cause to search you.

Reputation Comments on this post:

Dude...That's BULLSHIT...you MUST be a cop to spread such misinformation...if not...educate yourself on the constitution...

[ADVOR]

SWim was just thinking... SWIM was not even in the car when the police arrived. What right do they have to search the car in the first place? The car was turned off and not operational, therefore; the only right the police can be given is to search SWIM's person, correct?

[Milk man]

Originally Posted by doggy_hat

As far as I'm aware there is no such thing as an illegal search, they could just say they had probable cause. And saying I don't want you to violate my priavacy must mean you had something to hide, which gives them probable cause to search you.

Where did you learn this? Cause it's wrong...... That would violate your 4th amendment right. You can't get probable cause from a refusal. It will make the cop want to search you more.

---------------------------

Did swiy give the cops the keys? Or did he tell them to stop searching when they tried. I would think the cops are in the wrong.

If they keys were in the ignition, it could be a DUI. But if you were just standing outside of your car, then they shouldn't have been able to breathalyze you.

You should see a lawyer and contact the local ACLU in your area.

[ADVOR]

He searched the car before SWIM refused the breathalyzer.

[Milk man]

Originally Posted by ADVOR

He searched the car before SWIM refused the breathalyzer.

When they started to search your car, did you tell them they couldn't? What was swiy charged with...MIP?

[bcubed]

Google "implied consent." From what I know, refusing a BAC test is BAD. All legal advice I've heard is to submit (excepting, possibly, an accident involving death/serious injury). Had SWIY submitted, he could've created reasonable doubt about who was driving--of if alcohol was consumed before or after motor vehicle ops.

Now, SWIY needs to create doubt about whether he was recently driving (AFAIK, can't demand breathylysers of pedestrians). Also, if cop requested the test AFTER the search (sounds like it), then excluding the search ought to exclude the reasonable cause to request BAC%.

Perhaps a lawyer to argue "the refusal of the BAC was moot because it would not have been capable of determining my client's BAC% at the time of motor vehicle ops, as cop never witnessed the vehicle in motion."

Good luck.

[Humanity]

Originally Posted by doggy_hat

As far as I'm aware there is no such thing as an illegal search, they could just say they had probable cause. And saying I don't want you to violate my priavacy must mean you had something to hide, which gives them probable cause to search you.

So let me get this straight. If you consent to a search, they'll search your car and that's that. However if you don't consent they'll search you on probable cause. That's BS innit?

[gardis]

well if they searched swiys car they should have all of the evidence and if they don't have any cans, then there entire police report is obviously whack. also just wondering would handing the cops swiys keys consent to a search? if swiy really doesnt want a cop to search swiys car does one have to keep them on swiys person? im assuming swiys car was unlocked though but still would be nice to know. from what ive read that is definitly an illegal search, but it looks like unless swiy can prove that there planting evidence and fake facts then swiy will be in a bit of trouble, kinda bs in my opinion.

[ADVOR]

The thing is there were 3 empty sparx cans on the outside of the car, but the police report reads that they saw them on the interior of the car before they even searched it. This is bogus. SWIM saw them take pictures of 3 empty cans and the rest of the stuff they found. They found the cans on the outside of the car and then decided to search the inside. Cans outside of a car is not probable cause IMO.

[gardis]

your definitly right that is not grounds for search and that is what your gonna have to prove, i would say study those police reports hardcore look for any place they might have screwed up and gave away that they planted evidence. but i think swiys case should be thrown out just for the fact that swiy was not in the car at all when the cops pulled up so there is no need to search anything but maybe a pat down.

[ADVOR]

Originally Posted by gardis

your definitly right that is not grounds for search and that is what your gonna have to prove, i would say study those police reports hardcore look for any place they might have screwed up and gave away that they planted evidence. but i think swiys case should be thrown out just for the fact that swiy was not in the car at all when the cops pulled up so there is no need to search anything but maybe a pat down.

Agreed. SWIM will try to prove in court that there was no grounds for a search and the officer did not explain consequences of refusing a BAC test.

Today SWIM learned that he is too rich to get a public defendant. SWIM makes 0 income and only has $1500 to his name to pay his $500+ rent and grocieries and gas, etc. So SWIM now has to figure out how to afford a lawyer!!! FUCK!

[ADVOR]

UPDATE: SWIM has spent basically all of his money to pay for a lawyer. Hopefully SWIM can get this figured out. Any further comments are very much appreciated and needed.

[Juko]

swiy broke the law, they did their job. It really sucks getting caught. You are going to get like like 6 months with out a license. and an ass load of fines.

my bro crashed into a telephone pole, in a school zone, and blew a .2
since you blew a .08 (automatic fail due to refusal) and didn't crash and were not in a school zone, it may be as low as 3 months w/o license.

they will when. they state loves DUI's and DWI's.

good luck

[Milk man]

Originally Posted by Juko

swiy broke the law, they did their job. It really sucks getting caught. You are going to get like like 6 months with out a license. and an ass load of fines.

my bro crashed into a telephone pole, in a school zone, and blew a .2
since you blew a .08 (automatic fail due to refusal) and didn't crash and were not in a school zone, it may be as low as 3 months w/o license.

they will when. they state loves DUI's and DWI's.

good luck

He was not in operation of the car(keys were not in the ignition), therefore implied consent means shit.

[ADVOR]

At the time of the arrest, SWIM was a pedestrain and not an operator of a motor vehicle.

[showtime939]

get a good lawyer and you will be ok. I got arrested for underage poss of beer in a car and the most you will get is lost of licence but thats a worst case

[Euthanatos93420]

*Sigh* this kind of thing makes swim cry. Really. People, if you live in the US you need to READ THE CONSTITUTION & BILL OF RIGHTS. You talk about freedom and liberty but if you don't read understand these documents then you do not deserve them.

Case in point. Don't talk to cops. EVER. Don't give consent to search. EVER. Point out fourth & fifth amendment rights and Deny SEARCHES, BACs, & Keep your mouth shut. If you are arrested LOCK YOUR CAR. This is STANDARD OPERATING PROCEDURE REGARDLESS OF GUILT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

There is plenty of information as to why this is true and not the police state propaganda to the contrary but Swim won't bother ot educate anyone who hasn't taken the time to do so themselves. The info is readily available.

Google 'Don't talk to cops' Video

euthanatos93420 added 15 Minutes and 31 Seconds later...

Originally Posted by ADVOR

Tomorrow SWIM will contact the public defendant to find out if he is entitled to an attorney.

ARE YOU KIDDING ME???!?!?!?!?! YES YOU ARE ENTITLED TO AN ATTORNEY!!!!

URGHARRRRRGHHHHH A AAAAAHHHHH!!!!! (Swim is going to go cry for a while....)

euthanatos93420 added 1 Minutes and 13 Seconds later...

Originally Posted by Humanity

So let me get this straight. If you consent to a search, they'll search your car and that's that. However if you don't consent they'll search you on probable cause. That's BS innit?

Yes...yes it is. It's called police state TYRANNY. 4th amendment baby!!!

[Future_Narc_Officer]

Originally Posted by ADVOR

SWIM doesn't want to make this story too long, so he'll lay down the basics. SWIM pulled onto the side of the road so his friend could get directions (3 hours from home) to find his girl. A cop pulls up. Note that SWIM has consumed 1 energy/alcohol drink and that is all. At the time the police officer pulled up, SWIM was outside of his car leaning onto it. (Possible DUI?) The cop did his job and searched us, etc. He asked to search SWIM's car. SWIM said "This is my mother's car, I would rather her be here for that to happen". Immediately after, one officer said, "It's in your possession now" and they began searching it WITHOUT SWIM'S CONSENT. They found a couple bloody marys, a half open bottle of vodka and empty cans of sparx. SWIM was not lying, he only consumed one can of sparx. He did not tell this to the officers. They then asked if SWIM would take a breathalizer test. SWIM refused the breathalizer for he was afriad they would slap him with DUI, reckless endangerment, underage, etc. So they threw SWIM in jail on a $500 bail. He got out the next day.



Sorry for the long story, but here is my question. Will SWIM be able to fight this/these charges in court? There is no evidence that I was under the influence of alcohol, and the alcohol they had found was found during an illegal search. Do you have any advice for SWIM? His court date is tomorrow.

In Canada, if you are pulled over by a police officer for whatever reason and he sees the alcohol beverages in plain view when he approaches the vehicle, that gives him probable cause to conduct a search WITHOUT your consent (not sure if this was the case in your circumstance).

Also in Canada, refusing to provide a breathalyzer sample is just as bad as DUI/DWI/impaired driving itself.

Not sure if any of this information is the same in the U.S.A.