Legal Question in Criminal Law in Michigan

Mip

I was at a party with some friends and we were in the back yard sitting on the deck drinking. Some one called about the noise and a cop came up the stairs of the deck and took the minors out to the police cars. The one that gave me a breathalizer test did not ask me if I would, he told me to. Are they supposed to give you a choice of taking the breathalizer test? Anyways I was wondering if it is legal for them to enter the back yard even though he would have had to open the gate and come back. Also he did that without permission from the owner of the house. Is this legal? Nothing could be seen from the street either. I ended up with an MIP. Any advice would be appreciated, thanks.


Asked on 8/25/03, 4:56 pm

2 Answers from Attorneys
Neil O'Brien Eaton County Special Assistant Prosecuting Attorney

Re: Mip

The problem with challenging the officers' entry onto the property is that you have to have "standing" to raise the issue. Usually, just the property owner or property residents can challenge a search by contesting the police officer's authority to be present on the property, and to be in a position to view contraband or other evidence of a crime (here, underaged drinkers). Since you were a guest there, you may not have standing to object to their entry onto the property.

You're then left with challenging the officer's authority to get you to submit to a breath test. An officer can request that you take the test if he/she has reasonable suspicion that you're under 21 and had been drinking. Bloodshot eyes, slurred speech, an odor of intoxicants on your breath, balance problems, or even your proximity to a bunch of booze may be all that's required.

Another reality of the situation? The cops were sober, and you and your friends had been drinking ... and may have been affected by the alcohol. Who do you think will win in a credibility contest?

It sounds like you're not denying that you were drinking ... just complaining that you got caught.

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Answered on 8/26/03, 9:15 am
Eric I. Kutinsky THE MICHIGAN LEGAL TEAM, P.C.

Re: Mip

It's sound like you need to call my office ASAP. There are a few issues we need to explore. The entrance onto the property w/o a warrant, and possibly the consent issue. Also, I have found a loop hole in some of the city ordinances. Please feel free to call to discuss the matter further. Eric I. Kutinsky (248) 737-7000 or (800) LAW-6685

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Answered on 8/25/03, 10:09 pm


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