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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20233
Experience:  Handling criminal and probation matters for over 14 years.
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Can a teenager refuse to take a BAT if he/she is a passenger

Resolved Question:

Can a teenager refuse to take a BAT if he/she is a passenger in a car that is pulled over by the police for whatever reason? And if so what rights does the child have and is there a proceedure that should be explained to them and followed prior to performing the BAT? Illinois DuPage
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 5 years ago.
Thank you for using JustAnswer!

Can you please clarify: is the teenager to be tested to see if the teenager is sober enough to drive for the current driver?
Customer: replied 5 years ago.
No the driver was tested and BAT was 0.00
Expert:  JB Umphrey replied 5 years ago.
Yes, the teenager can refuse to take the BAT if s/he is only a passenger.

If there is no search warrant, if the teenager is not the driver, and if the teenager does not consent to the test, it is an illegal/unconstitutional search and seizure:

It is well established that the taking of a breath sample to test for the presence of alcohol constitutes a search under the Fourth Amendment. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (holding that "[s]ubjecting a person to a breathalyzer test, which generally requires the production of alveolar or `deep lung' breath for chemical analysis, implicates similar concerns about bodily integrity and . . . should . . . be deemed a search") (citations omitted). As such, the search must be reasonable. U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ."); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (observing that "[a]s the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is `reasonableness'").

There is nothing "special" in the need of law enforcement to detect evidence of ordinary criminal wrongdoing; even where crime is on the rise and the disorder and insecurity caused by criminal behavior in a community is grave, the Supreme Court has consistently held that "the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose." City of Indianapolis v. Edmond, 531 U.S. 32, 42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). "Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, th[e Supreme] Court has said that reasonableness generally requires the obtaining of a judicial warrant." Vernonia School Dist. [v. Acton], 515 U.S. [646,] 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 [(1995)].

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Customer: replied 5 years ago.
Since the teenager was told to do the BAT and as a passenger had a BAT of .072 she was arrested fined 120 and is required to go to court for additional fines/punishments including the possibility of suspension of her Drivers License any suggestions on her options.
Expert:  JB Umphrey replied 5 years ago.
Hire a local criminal defense attorney to file a motion to suppress the BAT results as being an illegal search and seizure and have the conviction set aside and the case dismissed.

If the teenager consented to the testing, she's stuck with the conviction.

If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
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