Is it legal for an officer to approach my parked car, ask me to step outside, and breathalyze me?

Asked about 1 year ago - Moraga, CA

My keys were out of the ignition. I blew a .06 but was under 21, however he also hadn't asked me how old I was or looked at my license yet. He didn't say anything about why I was being breathalyzed until I was on the curb, he said he smelled alcohol "somewhere," and he only breathalyzed me. Is he aloud to target me like that? I was literally just sitting in a parked car with my friends and he just assumed I was doing something wrong because I was in a parking lot at midnight.

Attorney answers (4)

  1. Joshua Matthew Dale

    Contributor Level 13

    9

    Lawyers agree

    Answered . So long as you didn't admit to driving after drinking, you'll win! Fight fight fight - get a DUI lawyer from http://california-dui-lawyers.org

  2. Dan Eugene Chambers

    Contributor Level 19

    8

    Lawyers agree

    Answered . Analyzing the legality of a detention is a fact-intensive exercise. You may have grounds to challenge the detention, but don't put any more facts on a public website. Interview some attorneys and have one look into your case. It sounds like you have some good defenses you can raise.

  3. Jasen Bodie Nielsen

    Pro

    Contributor Level 19

    8

    Lawyers agree

    Answered . It's not necessarily illegal, especially if you agree to it. Which, given your age, is probably a good thing. What I would suggest is that you consult with a few locally experienced DUI attorneys. If there weren't any witnesses to you driving, it's possible that the breath test results could be excluded via a suppression motion. There are many good DUI attorneys here on avvo. Call a few and hire the best one. If it's still within 10 days of this happening, time is of the essence so a DMV hearing can be requested to fight for your license. Best of luck.

    Jasen Nielsen

  4. Robert Lee Hamilton

    Contributor Level 6

    4

    Lawyers agree

    Answered . Assuming this was not a “consensual encounter” because officer ordered you out of the car – the officer is supposed to have “reasonable suspicion” or “probable cause” to believe you committed (or are about to commit) a crime. The threshold for this is incredibly low – surely much lower than our founders intended (contrary to the intent of our founders, security seems to always trump liberty).

    You bring up a lot of issues – did the officer have reason to believe you were or were about to commit a crime, when did he smell alcohol (and is this what gave him the “reasonable suspicion” or “probable cause” to believe you had or were about to commit a crime), did you take any of the field sobriety test (agility tests), did you the officer read you the pre-arrest breathalyzer admonition (did he tell you that you had to take the test if under 21 years or on probation for a prior DUI), what did you say to the officer about eating, drinking, driving, etc.

    Based on the June 17, 2013, U.S. Supreme Court case of Salinas v. Texas, one should immediately assert their 5th Amendment Right to remain silent and diligently remain silent thereafter. According to our U. S. Supreme Court, the failure to exercise the right prior to arrest allows the government to use even your silence against you. It is only after being arrested (not detained) that the police then need to inform you of you right to remain silent (bizarre logic indeed for the average citizen).

    Because you are under 21 years and blew a .06 BrAC (breath alcohol), you were likely cited for an infraction and never arrested. Depending on what you told the officer, it sounds like you have a very defensible case – however, unless you request a DMV hearing within 10 days from the date of your citation, you will likely lose your driver’s license for at least one full year – notwithstanding what happens in the criminal case.

    I suggest you contact myself or one of the above DUI defense attorneys immediately.

    Robert Lee Hamilton is licensed to practice law in the state of California. He cannot speak to the applicability... more

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