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Can a judge legally convict a minor (20yr) for consumption of alcohol if the only evidence is from the smell of breath of minor?

Pittsburgh, PA |

-The cops (responding to noise compaint) were allowed in by parents who caved from threats of getting warrant.
-No bottle or container of alcohol was openly visible or found from following search.
-The cops, when questioning us individually, said the only way we could leave the house without a citation is if we blew a 0.0, because they could issue a citation AND fine based SOLELY on the smell of my breath.
-When asked to take a breathalyzer, I refused.
-Yes I had been drinking, but I never incriminated myself by verbally admitting guilt. Refusal of breathalyzer does not act as evidence of my guilt.
-Cops 3 times asked me why I wouldn't agree to the test. I pleaded 5th.
-I was cited with violation of PA LAW Section 6308 A.
-Can the cop's testimony in court be enough to legally convict me?

-No written ticket was issued on the scene and I did not sign anything *EDIT* I am not a minor (20 years old) but am an underage obviously.

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Attorney answers 3

Best Answer

There is a PA Supreme Court case that held that you cannot be convicted on the odor of alcohol on breath alone, so, based upon your submission, you should win. However, it is extremely rare that the officer shows up and limits testimony to the odor. Officers routinely testify as to other intoxication indicators, such as blood shot eyes, slurred speech, and difficulty standing. Those additional "intoxication indicators" act as circumstantial evidence that you had been drinking and would be sufficient. You probably have a better suppression argument that the police detained you and wouldn't let you leave until you proved your innocence. If the police detained you in violation of your rights, then you may be able to seek suppression of all evidence and thereby obtain a not guilty verdict. For some examples of how these arguments are made, check out some of my Underage Success Stories at the link below.

It is very important that you hire a lawyer so that the proper arguments are made at the appropriate times. If you do not object at the right time, the judge will hold that you waived the objection. Getting a lawyer will cost you money, but substantially increasing the likelihood that you win makes it worth it.

Jason S. Dunkle, Esq.
JD Law, P.C.
204 East Calder Way, Suite 306
State College, PA 16801
(814) 954-7622

The responses provided on this site are intended for informational purposes only and should not be construed as providing legal advice regarding an individual situation. No attorney-client relationship is created between the reader and JD Law, P.C.



Thank you for the insight on wrongful detainment, very helpful information.


You are not a minor but are under the age to drink alcohol. The police must prove in a court room that you were drinking alcohol. It sounds that they will be unable to prove the case unless they secure the admission that you provided here in this public forum. You should hire a criminal attorney, ask for a hearing and go into court . You don't want to be convicted because it calls for a 90 day license suspension and you will have a record.


This case could go either way so you should hire a good lawyer and be prepared with all the best arguments by sitting discussing everything that occurred with the lawyer. Ask the lawyer to examine the potential suppression issues as well as all of the factors that may have indicated intoxication. You can read more about PA Underage drinking at the link below.
Steven F. Fairlie, Esq.
Fairlie & Lippy, P.C.
1501 Lower State Road, Suite 304
North Wales, PA 19454
voice: (215) 997-1000
fax: (215) 997-1777