Expert: Jack Toomey - 7/11/2008

Question
QUESTION: Not sure if this falls in your field, but I figure I should try to find this out. If you are underage, and an officer suspects you of drinking or for whatever reason wants to subject you to a breathalyzer, you have no obligation to fully comply, correct? Let me know. Also, this is something I should probably find out... If you are hosting an event where underage individuals are drinking, and an officer sees alcohol through a window, if all entrances are locked they have no right to enter without a warrant, correct? Let me know, thanks!

ANSWER: Eric,

  This is a dangerous question to answer but I will go ahead anyway.  

  There are fifty states.  Every state has its own laws.  So what might be true in my state might not be true in YOUR state.  Let me repeat that.  What I am going to tell you applies to MY state only.

  In MY state the only person who has to submit to a chemical test of his blood, breath, or urnie is the operator of a motor vehicle.  There are no laws that concern the obligation of an underage person to submit to a breathalyzer test in a case of underage drinking.

  In your second question I'd say you are correct but I have never seen a case where the police somehow weren't able to get into the house and the case held up in court.  I wouldn't be locking the doors if I were you.  It will only bring more charges when the police finally get in.

---------- FOLLOW-UP ----------

QUESTION: Thank you very much, that helps a lot actually, I didn't know that I had those sorts of rights to fully deny a blood alcohol test. I have a followup question, if you could clarify on the second answer. You say that by locking the doors I would receive more charges. If there is a suspicion by an officer, I know that they don't have the right to enter regardless, but if there is 'probable cause', can they enter anyway on their own accord without a warrant? Also, wasn't there a law enacted recently that makes a search without a warrant legal if the search results in finding illegal items, activity, etc.? Maybe I am wrong, let me know. Thank you!

Answer
Eric,

  There you go.  That is exactly why I almost denied the question.

   I did not say that you had the right to "fully deny" a blood alcohol test.  I said that if the scenario was in MY state, which has different laws than in your state, then the law that I cited would apply.  Let me state that once more time to protect myself because what has happened in the past with people claiming that I told them that their behavior was all right.  The law that I cited applies ONLY in MY state.  I would suggest that you talk to a police officer in YOUR state to find out what the law is there.

   Yes the police can enter a home without a warrant.  The courts have upheld a number of scenarios where the police do not need a warrant to enter a house.  In your scenario you simply cited underage drinking.  But a number of other factors could go along with underage drinking that could allow the police to enter a house without a warrant.  You probably went over that during government class when you studied the Fourth Amendment.

  I'm not aware of any court case like you cite.  There may be something like that but it is not as cut-and-dried as "a search without a warrant legal if the search results in finding illegal items".  If that was true  the that would allow the police to simply search every house on the street and then charge the home owner with whatever illegal items that they find.  You are probably thinking of a hot pursuit case or a case where the police were there to talk to people and saw 'illegal items" in plain view.