Underage Consumption > Do I Have to Submit a Breath Sample to Police Upon Request in Minnesota?

martiniMost people are aware that if a person is driving a motor vehicle in Minnesota, a police officer can in certain circumstances invoke legal authority under a Minnesota Statute to demand the person submit to a search by providing a breath sample for a Portable (or Preliminary) Breath Test (“PBT”) machine.  If the driver refuses, the statute then authorizes arrest for suspicion of DWI.

What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?  There is no statute or law that requires that young person to consent to a search by providing a breath sample simply because they are walking down the street, or found at a house party, with an odor of an alcoholic beverage about them.  A young person in this position can simply refuse to consent to such a search.  Refusal to submit to a PBT does not give police legal authority to arrest a pedestrian (unlike a driver, in certain circumstances).  Note that although the Minnesota Statute in the DWI Chapter concerning Preliminary Screening Tests (link above) does authorize use of these in underage consumption cases in court, it does not authorize police to “require” a breath sample for a PBT where the person has no connection to a motor vehicle.

An interesting, recent case in Michigan illustrates some of the key points in this type of case, Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  There, the City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors, and this was ruled unconstitutional.  The court in that case notes that police did not claim to have obtained consent from the accused, nor did they have a search warrant.  The court also confirms the obvious – when police take a breath sample that is a search.

Under the Fourth Amendment of the United States Constitution, in order for police to search a person they must have a search warrant, or a recognized exception to the warrant requirement must a then apply.  Consent can be an exception.  If “consent” is coerced, then it is not real consent.

I know of no statute or local ordinance in Minnesota that gives police legal authority to “require” a breath sample for alcohol testing (unless in connection with weapons or motor vehicles).  Police often will seek actual consent, or sometimes try to coerce “consent.”  The person (with no weapon, or not in relation to a motor vehicle) faced with such a request from a police officer does not have to consent to such a search or provide a breath sample simply because police want it.

The police and local prosecutors can still charge underage consumption crimes without PBT evidence, based upon other available evidence.  (The most damning are verbal admissionsby the accused.)  Regardless, a person accused of this crime could be expected to have a stronger defense case if they refuse to blow into the PBT and refuse to talk about drinking. 

Other problems commonly occurring with these kinds of cases include criminal charges of giving false information or identity to police, and less often, fleeing.  I know of no law in Minnesota that requires a person to identify themselves to police (except in certain circumstances such as driving, hunting, carrying, etc.)  If a person is not driving, they need not carry a drivers license or other ID.  A person should be careful to avoid giving a false identity to police, which is a worse crime than underage drinking, in the eyes of most.  If a police officer asserts their authority as a police officer, fleeing is a crime in Minnesota, whether in a vehicle or otherwise.

In general, a person suspected of a crime cannot be compelled to talk or provide information, or consent to a search (and this is normally the best approach); however, any information that is provided should be truthful.  When in doubt, seek legal advice from a lawyer before making a statement or consenting to a search.

Author: Thomas Gallagher Minneapolis Criminal Lawyer

4 responses to “Underage Consumption > Do I Have to Submit a Breath Sample to Police Upon Request in Minnesota?

  1. Nice neat and concise blog. I know Tom Gallagher from the garbage burner battles of the ’80’s. Also, he represented a friend of mine who was busted for having some weed in his car and he did a great job in advising and guiding the pot head through the process and made certain that he was hooded before hung. Great work for you know who Tom.
    In friendship,
    Leslie Davis Republic(m)an for Governor 2010

  2. What about a 19 year old who is a passenger in a car? The driver is also 19 and is given breathalyzer and blows 00 but officer suspects is under influence and gives driver a field sobriety test? Tells the passenger he must submit to breathalyzer test or go to jail. Passenger blows .009 so is given a ticket for underage consumption. Was it legal for the officer to make psgr submit to breathalyzer or tell him he will go to jail if he refuses?

    • No fact mentioned here would support arrest of the passenger. Police cannot lawfully require a passenger to blow into a PBT, according to the Minnesota Statute authorizing PBT requests ( https://www.revisor.mn.gov/statutes/?id=169A.41 ). It might be possible that the police officer observed some other fact not mentioned here that would justify arrest. The passenger would be in a better position to know whether or not that was the case. Although PBT evidence is not required for an underage consumption prosecution (other evidence may be used), an alcohol level of .009 is very close to .000; and, a significant percentage of the population has natural digestive fermentation that results in lifelong, low level of alcohol in their blood – even though they did not drink any alcohol. If the passenger admitted drinking alcohol, however, that could be enough evidence for prosecution (unless there is an affirmative defense: https://www.revisor.mn.gov/statutes/?id=340A.503 ). All of this discussion relates to Minnesota only, not the laws of any other state or jurisdiction.

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