Written by attorney Jeffrey Alan Lustick

Common Myths About Your Rights and the Police As a College Student

1. MYTH: The police must automatically read Miranda to you as soon as you are placed under arrest.

FACT: No, in Washington, Miranda warnings (The right to remain silent, etc.) are only required when the person is in custody and is then questioned or interrogated. In "custody" is a complex analysis but basically means that the person is not free to leave and is under police control until further notice. "Questioning" or "interrogation" refers to anything done or said by the police which is intended to or is likely to evoke an incriminating response. Asking for your name and address are not necessarily incriminating, but asking for your age on an MIP arrest could be.

2. MYTHAs a student living on campus, the Campus Police have the authority to enter your dorm room without consent.

FACT: No. Just because you're a student does not give the campus security patrol or the police any greater authority over your dorm room. Your dormitory room is your home and as such, the protections of the State and U.S. Constitution against unreasonable search and seizure apply. Under these Constitutions, you have a reasonable expectation of privacy in where you live and except for a few minor exceptions, only consent or a valid warrant can overcome your expectation to privacy.

3. MYTH:You cannot be arrested for minor in possession or consumption of alcohol unless you submit to a handheld breath test, also known as a PBT.

FACT: This is totally false, and in fact, if you are under 21 and you take a portable or handheld breath test and show the presence of any alcohol, it could make the case against you even stronger. The police can arrest and charge you with MIP if there's probable cause to believe that you are under age 21 and are either in possession of alcoholic beverages or spirituous liquor or have recently consumed the same. The prosecution proves consumption by your admissions (I drank beer) or by the fact that you may be exhibiting the common physical signs of alcohol consumption. Common signs can include bloodshot, watery eyes, slurred speech, the smell of alcohol on your breath, and a positive PBT test. Nothing in the law "requires" the police to give you a PBT and if you take one, it could be good evidence against you.

4. MYTH:When you are stopped and investigated by the police for a possible DUI charge, you are required to undergo field sobriety tests.

FACT: No. There is no law requiring anyone to submit to field sobriety tests, also called FSTs. Rather, the law says that FSTs are voluntary and you need to grant your consent to perform them. FSTs are a search for evidence using your body.

The results of the FSTs are evidence which the police and prosecutor can and will use against you. In a court of law, the way you respond to FSTs, that is if you fail, can be evidence and proof that you were too intoxicated to drive drunk. Police officers are not required to tell you that you must consent to FSTs and there is also no requirement to explain that the FSTs are voluntary. Typically, police just expect you to perform these tests, but the police cannot charge you with resisting or obstruction is you decline to take them.

5. MYTH: The law requires anyone arrested of DUI to take a breathalyzer test (or a blood test) and if you refuse to take such a test for alcohol or drugs, it's a separate criminal charge on top of a DUI charge.

FACT: No, this is untrue. But the issue is a little complex, and is worthy of more discussion.

First of all, it is true that the State's Implied Consent Law says that by accepting a driver's license in this state, you impliedly agree to submit yourself to chemical breath testing when validly placed under arrest for DUI (or a blood test for vehicular assault or vehicular homicide). But that law also says that no one can be prosecuted for just refusing to take the test. You should be aware that the prosecutor can use the fact that you refused to take the test as a tacit admission on your part that you were conscious that if tested, you would fail.

Also, be advised that the DOL can revoke your license if you refuse to take a breath or blood test. Such a revocation is not considered a penal sanction, but rather is administrative. Depending on your past arrest and conviction history, you could have your license to drive revoked for up to two years if you refuse to take this test.

Before you take any sort of DUI blood or breath test, you should always -demand- to speak with a lawyer. The Implied Consent Statute contains a statutory privilege allowing you to consult with an attorney before submitting to the tests. I said "demand" because this right is not self executing, and unless you specifically ask for a lawyer, none will be provided.

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