Category Archives: minneapolis police

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 admissions by 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

Minneapolis police investigate MyFastPass.com

According to recent news reports on press releases from Minneapolis police; local and federal law enforcement have arrested at least one suspect and executed search warrants – yielding a database of subscribers to My Fast Pass, apparently in connection with claimed criminal prostitution. An interesting twist in this case, police have publicly declared:

“As part of our ongoing criminal investigation, it is our intention to have face to face contact with people on this list, to include men and women. If you feel it is in your best interest to have input into the time and place of this meeting you can email [minneapolis police].”

I guess you can’t blame a fellow for trying, right?  One must wonder though – what kind of person (in that database) would find it in their best interest to set up an appointment for a police interrogation?  Why help the government take you down?

BillofRightsMost everyone realizes their sacred Constitutional right to silence in the face of police questioning, and their right to have a lawyer present from television and movies.  Unfortunately, many of those entertainments show the fictional suspect waiving their rights, to quickly commit legal suicide – but it does help move the story along, doesn’t it?

Too few movies and television stories show the innocent bullied or tricked into confessing or admitting facts by trained police officers. Criminal defense lawyers generally advise people suspected by police to (a) remain silent; (b) do not consent to any search of person or property; and (c) consult and retain a good criminal lawyer as soon as possible. In pre-charge, investigatory cases, an ounce or prevention is worth much more than a pound of cure.

For further information, see our page: Prostitution Laws in Minnesota

(Note: This was originally posted on another of the author’s blogs on June 20, 2009 – moved to here, deleted there.)