Act Smartly and Know Your Rights in any Police Encounter. We begin with debunking six common myths among college age students with regard to criminal law and criminal procedure.
1. MYTH: The police must automatically read Miranda rights and warnings to you as soon as you are placed under arrest.
FACT: No, in the State of Washington, Miranda warnings (The right to remain silent and to have an attorney, 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. MYTH: As a student residing on the campus, the Campus Police have the authority to enter your dorm room without your consent during any police encounter.
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 or 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: During a police encounter, 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, the sentence for a DUI in which the driver refuses to take the tests can be higher. This included one to 90 additional days in jail, depending on your past criminal history.
Also, be advised that the Department of Licensing 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.
Do not request any lawyer by name unless you know that he or she is available at the moment you actually need them. Each county has public defenders on call 24-hours, and if you simply demand to speak with any lawyer, the police will page one of the on-call PDs to assist you. At that point, that is, immediately before the breath test, you need not be impoverished or indigent to be furnished with a lawyer.
It is always a good idea to consult with legal counsel before making a decision to decline a breath test. Rarely any lawyer will advise you to decline the test.
6. MYTH: If the police encounter you at your house because there’s a loud party going on inside, you are required to let the police come inside.
FACT: No. Once again, you are guaranteed privacy at your home except for certain exceptions under the law. The scenario in Whatcom County is that the party patrol rolls up to your home, surrounds the place, and then knocks on your door asking to be let in. The police will try and say that they want to come inside to “secure your residence” and aid you in dispersing the crowd. They may also ask for your consent to search for contraband (i.,e. drugs) and underage drinkers.
You have the right to withhold your consent to let the police inside your house. There is no law that says just because there may be a loud party going on inside your place that the police have a free right of entry.
Certainly the police may threaten you with getting a search warrant. A search warrant can only be obtained from a judge and the process can take a while to complete. If the police want to enter your home, but you say no and the police officers threaten you with a warrant this may not be a bad thing. Not every request by the police for a search warrant is granted.
We offer a free one-hour consultation for criminal offenses and one of our lawyers will appear for free at your first court hearing. Please call (360) 685-4221 to schedule a meeting with one of our defense team members. Or reach us through our web info wiki here: https://victorylegal.us/free_case_evaluation