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

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.

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Attorney answers 4


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.


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


So long as you didn't admit to driving after drinking, you'll win! Fight fight fight - get a DUI lawyer from


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 of information in jurisdictions outside California. No two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Thus, the information provided in this column should NOT be regarded as individual legal advice, and readers should NOT act upon this information without seeking the opinion of an attorney in their home state. This does NOT constitute an attorney-client relationship and does NOT constitute legal advice. The information provided is for educational and/or informational purposes only.

Markus Dombois

Markus Dombois


Read this code section. If your case doesn't come under any of the exceptions, a decent lawyer may get the case dismissed. Also make sure you call the local DMV Safety office to set a hearing, otherwise you will forfeit your license just for not calling within the 10 day time period. 40300.5. In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists: (a) The person is involved in a traffic accident. (b) The person is observed in or about a vehicle that is obstructing a roadway. (c) The person will not be apprehended unless immediately arrested. (d) The person may cause injury to himself or herself or damage property unless immediately arrested. (e) The person may destroy or conceal evidence of the crime unless immediately arrested. Amended Sec. 6, Ch. 1078, Stats. 1996. Effective January 1, 1997.

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