Tag Archives: Dealing with police

Underage Consumption > Can a Minor Refuse a Breath Test in Minnesota?

What are the most important underage drinking laws in Minnesota?  Can police force a minor consumption suspect to blow into a breath test machine?  The three biggest legal problems for those underage are:  (1) underage consumption; (2) minor in possession of alcohol; and, (3) underage drinking and driving (“not a drop”)

Underage drinking and driving

Minnesota underage drinking laws: Can a minor consumption suspect refuse a breath test?

Minnesota underage drinking laws: Can a minor consumption suspect refuse a breath test?

The most important of the underage drinking laws is the “not a drop” underage drink and drive law.

If a person is driving a motor vehicle in Minnesota, a police officer can invoke legal authority under a Minnesota Statute to demand 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 drivers under age 21?  Under 21, any alcohol consumption and driving is a crime.  It’s a crime in Minnesota even without impairment, even below the legal limit for adults.

Minor Consumption (not driving or in a car)  

What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?  

There are no underage drinking laws that require that young person to provide a breath sample, away from a car. 

An odor of an alcoholic beverage does not allow police to require a breath test.  This is true when walking down the street, or at a house party.

Police cannot require a breath test

A young person in this position can simply refuse to consent to such a search.  Refusal to blow into a PBT does not allow police to arrest a pedestrian (unlike some drivers).  Underage drinking laws don’t give police legal authority to demand a breath test.

The Minnesota DWI Statute on Preliminary Screening Tests does authorize use of these in underage consumption cases in court.  But it does not authorize police to “require” a breath sample for a PBT where the person has no connection to a motor vehicle.

A recent case in Michigan illustrates some of the key points.  Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  The City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors.

The court struck down the underage drinking law as unconstitutional.  There, police did not claim to have 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.

Don’t “consent” to a pedestrian breath test

Under the Fourth Amendment of the U.S. Constitution, police must have a search warrant, or a recognized exception to the warrant requirement.

Consent can be an exception.  If police coerce “consent,” then it is not consent.  But be sure to avoid any consent.  And ideally say “I do not consent!”

I know of no Minnesota statute or local ordinance that gives police authority to “require” a breath sample for alcohol testing (unless in connection with a carry weapon permit or motor vehicles). 

Police will often seek actual consent.  Or police try to coerce “consent.”  If police request a breath test, you do not have to consent to the search or provide a breath sample.

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, you’ll have a stronger defense if you refuse to blow, and refuse to talk.

Minor in possession of alcohol

Know your rights: minor in possession, minor consumption

Know your rights: minor in possession, minor consumption

A related legal problem for people under 21 is a Minor in Possession charge.

Now that Minnesota’s underage drinking laws set the drinking age at 21, it’s really a underage possession of alcohol charge.  Since a “minor” becomes an adult at age 18, that is a more accurate name.

Defenses to a minor in possession charge includes those for any kind of criminal possession charge.  What evidence does the government have of “possession?”

Most police contacts happen with drivers and motor vehicles.  Therefore keeping contraband, including alcohol, out of the car is a basic precaution.  If in a car, at least in the trunk police won’t see it “in plain sight.”  And of course, the Open Bottle law applies to underage people just as must as to adults.

For pedestrians, defensive measures include refusing any breath test, and avoiding talking about it at all.

Other potential legal problems

Other associated problems include the crimes of giving false information or identity to police, and less often, fleeing.  No Minnesota law that requires a person to identify themselves to police, with few exceptions.  Exceptions include driving, hunting, carry permit, etc. 

If a person is not driving, they need not carry a drivers license or other ID.

But avoid giving a false identity to police, which is a worse crime than underage drinking, in the eyes of most.

If a police officer tells you to stop, fleeing is a crime in Minnesota, whether in a vehicle or otherwise.  And it’s a more serious crime than minor consumption, minor in possession, or other violations of underage drinking laws.

Asserting your legal rights

You need to stick up for yourself and assert your rights.  What is a legal right?  It’s yours.  It belongs to you.  But like anything that belongs to you, you can throw it away.  You can give it up, or give it away foolishly.  Don’t do that.

Get your back up.  Assert your rights.  If you can’t do it with inner confidence, at least look confident about it.

Next, as long as you remember to assert your rights fully, you will have them.  And you can do so politely.  In fact, if you assert your rights in a polite but firm way, you’ll appear more confident.

Know your rights.  And protect yourself from police and the government.

In general, police cannot compel a person suspected of a crime to talk or provide information.  And police cannot force a person to consent to a search.  You should avoid doing either.  However, any information you do provide should be truthful.  Tip: you can’t lie if you say nothing. 

Liberty-Lawyer.com logo sm wideWhen 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 here, deleted there.)

Avoiding Traffic Stops – Minnesota Laws 2009

Another year, another truckload of new laws – the usual, right?  How does that affect you?  For the most part, hopefully it doesn’t.

But when you consider the fact that most criminal law problems – large and small – start as vehicle traffic stops; it pays to be aware of new laws allowing police to stop you.  Some of these went into effect June, July and some August 1, 2009.  All represent an expansion of government power and a reduction of your liberty and freedom.

 Do you remember several years ago when advocates of another law to mandate seat-belt use upon penalty of a petty misdemeanor fine, reassured us “don’t worry, we will never ask for a primary seat belt law;”  How long is “never,” again?  Not that long, it seems.

It starts with a traffic stop...

It starts with a traffic stop…

Police now can stop you for merely not wearing a Seat-belt in Minnesota.  A “primary violation” seat belt law gives police the legal right to stop a vehicle if someone in the vehicle appears to not wear a seat belt.  The previous version of the seat belt law did not allow traffic stops solely for the appearance of not wearing a seat belt.  This year’s law does.  The law eliminates personal choice, and personal responsibility.  It hands over more responsibility and more power to the government, taking it away from the individual.  It reduces the need for people to educate themselves, be responsible for themselves, and develop a personal moral code.  It reduces your freedom.  As usual, they claim sacrificing your freedom is worth it – for your own good.

The new “primary” seat belt violation law increases the potential for stops and arrests resulting from racial profiling.  Racial profiling is a real problem – difficult to solve.  Though police generally don’t view themselves as racist (few people do), they are no different from the rest of us, and are no more perfect in relation to racial stereotyping and its effects.

We know that when it comes to race, there is a disparate impact upon people identifiable as part of a racial minority group that can only be explained by race.  Creating more opportunities for police to stop people for petty, technical violations inevitably leads a worsening of the racial profiling problem.

Social control by force – by law enforcement – is corrosive to our culture and our youth.  Why learn responsibility as an individual if the government allows you little of it, and controls ever smaller aspects of your life – year after year, law after law?  This seat belt law gives law enforcement yet another reason to pull someone over, and to find another, bigger reason to interfere with your life.

Expansion of Child Seat law.

Under the new law, children in a motor vehicle must now be in a child passenger restraint system until their eighth birthday or they reach 4 feet 9 inches tall.  Of course, this is yet another reason for police to stop you if it appears you might be in violation of this.

Global Positioning Systems on Windshield .

Global Positioning Systems (GPS) can now lawfully be mounted or located near the bottom-most part of a vehicle’s windshield.  Previously, anything mounted on the front or rear windshield put the driver at risk of a traffic stop by police.  The “obstructed windshield” statute, used by police to justify such traffic stops, does have some language about obstruction to the drivers view – yet, it gave police the legal excuse to stop someone if there was anything on the windshield, or between the windshield and the driver.  These have included RADAR detectors (otherwise legal), notepads stuck to the windshield, air fresheners or other items hanging from the rearview mirror, and the like – in addition to GPS units mounted to the windshield.  At least now there is an exception for GPS units mounted to the lowest portion of the windshield.  Presumably in that location, the driver’s view will not be impeded.

What about a RADAR detector?  Prudence might argue for a newer RADAR detector with a GPS unit incorporated in the same unit.  That – or don’t mount it to the windshield.  (See, Speeding Laws in Minnesota for a discussion of MN speed law and defense.)

Tips for Avoiding Traffic Stops.

Other than changing your race, age, car, etc., how can you minimize your risk of a traffic stop?  Of course, obeying the traffic laws seems obvious.  But what about all of the technicalities the police can use to either ruin your day, or ruin your life?  Here’s a list of a few:

  1. Avoid placing any decals of any kind on your front or rear windshield, even where instructed to do so by a government agency.  Instead, place them on a side window, where necessary.
  2. Make sure there are no cracks in your windshields.  In winter, make sure they are free of ice and snow.
  3. Avoid hanging items from your rear view mirror, like air fresheners.  Place them below the windshield level.  Avoid hanging anything from sun visors.
  4. Make sure all of your lights, brake lights, turn and lane change indicator lights, as well as license plate illumination light – are all working.
  5. Make sure your vehicle is displaying proper license plate or other registration evidence.
  6. Make sure your vehicle’s suspension, alignment and steering are good enough that your vehicle does not weave.
  7. Avoid tinted glass police may view as illegal.  (And work on changing this law.)

Given the plethora of overreaching laws already in existence, it has never been more important to prevent police from violating your privacy and liberty interests.  Traffic stops are the narrow end of the wedge the government can drive into you and your life, to hurt or destroy you.  Every police contact creates a risk of a life-altering criminal charge – innocent or not.  Every smart citizen should strive to avoid these police contacts in the first place.

For further information: Author, Thomas Gallagher, Minneapolis Criminal Lawyer.

Know Your Rights: Protect Yourself from The Police

We The People: know your rights

We The People: know your rights

Do you know your rights?  When Government turns its awesome power on you, what should you do?:

1. Panic.
2. Try to talk your way out of it.
3. Show submissive behavior, like a non-alpha dog would.
4. Confess early and often – even to things you know nothing about, to please them.
5. None of the Above.

Correct – none of the above. Panic, submission and wishful thinking – while all too common, are not the way to protect yourself.

Well then, what should you do?

Do Not Trust Them. Trust Yourself

Know your rights.  And assert your rights.  You can and must do this.  But don’t make the common mistakes.

Do not lie. Do not tell the truth. Say nothing. Consult a criminal defense lawyer before making any statements to police. That is the general rule, with few exceptions. When in doubt, remain silent. If you hear a Miranda Warning, the alarm bells should be going off – be quiet!

Why? Police are generally good people. Like the rest of us, they too have a tough job, pressures. They are human – not perfect. Police have a point of view, a bias.  And, like all of us, they are subject to the “self-fulfilling prophecy” phenomenon.  Have you ever noticed that people tend to side with whoever complains to them first? Think police officers are immune to that? Suffice it to say that there are many reasons and causes for police misinterpreting other people; coercing unreliable statements, or both.

You can always make a statement later, if that makes sense, after consulting with your criminal law attorney. Police try to create a sense of urgency.  But their efforts to create a crisis, to invite making a statement are self-serving.  They don’t want you to “lawyer up.”

Avoid Consenting to a Search

When you know your rights, you don’t consent to a search.

They train police to get “consent” to search where possible. Consent is an exception to the judicial search warrant requirement of the United States Constitution. If they get valid, voluntary consent, a judge will likely rule the search legal. But why would a sane person give real, voluntary, consent to a police search? Nothing better to do? Almost every so-called consent search involves a degree of coercion by police – more or less.

Giving in to police coercion to “consent” to a search is a bad idea.  Don’t think  that a lawyer may be able to fix it later.  There is no guarantee of that! Refuse to consent to any search by police – of your person, belongings, vehicle, or living or work-space.

A majority of police contacts happen as the result of traffic stops. It is generally better for the defense, to endure delay, detention, even arrest – rather than consent to a search. Some may think “why not consent.  They say or look like they’ll search anyway.”

That is a bad idea.  And what they want you to think.   Because your “consent” would likely prevent a judge suppressing evidence from an illegal search.

If police can search lawfully with a warrant, they do not need consent.   With a search warrant, you should not physically or verbally interfere.  But you do not need to speak.

Good legal hygiene

You should know your rights.  Should?  Know them better!  It’s a lifelong process.  Learn as much as you can about the law.   That way you can better protect yourself and your loved ones, legally.

Under 21?  Know your rights under Minnesota’s underage drinking laws.  Drive car?  Learn tips on avoiding traffic stops.  You have a wealth of legal information here at your disposal.

Gallagher-Defense-logoAnd remember, if police contacted you, about a possible crime, know your rights.  And consult a criminal defense lawyer quickly, to seek investigation representation or pre-charge counsel.  How to Know > Do You Need a Criminal Defense Lawyer?

Your lawyer can help you take steps to protect yourself from the injustice and awesome power of the government.

By: Thomas C Gallagher, a Minneapolis Criminal Lawyer