My friend and I live in Minnesota, are aged 20 and 19 and were walking home after drinking some beers (no liquor) at a friends house. Neither one of us were acting abnormal, loud, or giving off any signs of "drunkness". We had no possession of alcohol on us either. However, a police car saw us walking along the sidewalk, immediately asked for our licenses and gave us breathalyzer tests. We blew a .05 and .15 and were ticketed for under age consumption. I was told that a police officer needs probable cause to administer a breath test otherwise the charge could be withdrawn. Is this true and could it be argued so for my situation? Lastly, the officer mentioned later that he could "smell it" which I find very hard to believe, but is that all the probable cause law enforcement needs? Thanks for any help you can offer.
2 Answers from Attorneys
Pedestrians cannot normally be required to blow into a PBT upon request by a police officer. Police do not need a PBT alcohol level in order to have probable cause for underage consumption. People who have not been drinking can usually smell the odor of an alcoholic beverage on someone who has consumed one, even while the person who had been drinking cannot. In Minnesota, "If proven by a preponderance of the evidence, it is an affirmative defense to a violation of this clause that the defendant consumed the alcoholic beverage in the household of the defendant's parent or guardian and with the consent of the parent or guardian." If the goal is to keep your record clean, go to court and ask for that or set a trial date if the prosecutor refuses. You will have a better chance if you are represented by a lawyer. You may be interested in my blog article: http://minneapoliscriminallawyer.liberty-lawyer.com/2009/09/16/underage-consumption-do-i-have-to-submit-a-breath-sample-to-police-upon-request-in-minnesota/
An officer requires reasonable suspicion for particularized criminal activity to conduct a seizure by stopping a person. In the scenario presented, depending on the hour, the officer may have suspected a curfew violation. Other "excuses" that I have heard include that there have been burglaries in the area from teens. If stopped and tickedted, the reasonable suspicion for the stop may be challenged in court.
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