Can an officer breathalyze a person in a car whish the driver blew a 0.000?

Asked almost 5 years ago - La Crosse, WI

I was in the backseat of my car that a friend was driving when we were stopped while leaving a party. The cop asked all three of us to step outside the car and take a breath test. the driver of my car was sober (0.000) but myself and the other passenger had been drinking. Can i get out of the ticket?

Additional information

I am being summoned for underage drinking, i was never read miranda rights before the officer asked if i was drinking i said no, but he still made us PBT before we could leave. This would also be my first violation if i cannot get out of it.

Attorney answers (4)

  1. Christopher Allan Doerfler

    Contributor Level 11

    1

    Lawyer agrees

    1

    Answered . I am assuming you got an underage drinking ticket, as that is the usual way a person gets in trouble for having alcohol in his system while riding in the back of a car.

    Can you get out of this ticket? Maybe. If the officer lacked probable cause to order you to take a PBT, perhaps the evidence can be suppressed. If you consented to it, or made admissions about drinking, maybe not. Assuming you can't beat it, there are possibly diversion programs a lawyer can get for you depending on your history, if any.

    Chris

  2. Christopher W. Dyer

    Contributor Level 8

    Answered . This response assumes that you were given a hand-held test, and not the test using the machine at the police department. If I were handling the case and the matter went to trial (i.e., motions to suppress failed), I would vehemently oppose evidence regarding the results of any hand-held breath test. In Wisconsin, a preliminary breath test ("PBT") is admissible for issues regarding probable cause to arrest, and not for trial purposes. I know of no statutory provision or case law restricting this prohibition to OWI-related cases only. Further, while Wisconsin's Intoximer EC/IR testing device enjoys certain presumptions of admissibility if properly used and maintained, it is my position that the same does NOT apply to PBT devices. Therefore, a witness attempting to introduce such evidence should be required to demonstrate the underlying scientific reliability, which would probably require an expert witness. Consequently, if the posecutor is relying heavily upon the results of the PBT, a lawyer educated regarding these issues may be able to persuade the court that the results cannot be used, which might lead to a directed verdict or acquittal. (Not legal advice. No legal representation exists between reader and attorney.)

  3. Howard Woodley Bailey

    Pro

    Contributor Level 20

    Answered . You do not indicate what type of summons you were issued, so there is no way to assess whether you can get out of the summons. Either repost with additional facts, to include the type of charge; or, consider having a direct consult with a lawyer licensed in WI before your Court date to discuss the facts of the stop, the charge, and the possible dispositions. Good luck.

    DISCLAIMER I do not practice law in your State. This answer is provided for informational purposes only. This answer does not constitute legal advice, create an attorney-client relationship, or constitute attorney advertising.

  4. John M. Kaman

    Pro

    Contributor Level 20

    Answered . I see many questions on avvo in which people want to do what is going to happen to them because of such and such an offense or parole violation. In truth no one except your lawyer can even give you an approximate answer to that question because it depends on so many variables: your state’s laws and procedures, your criminal history if any, whether there are any sentencing enhancements, whether your state has diversion programs for your offense. These kinds of questions really require that you contact a local lawyer and even then they can only give you a range.

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