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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27483
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My son is an 18 year old collage student - he and 4 of s

Customer Question

My son is an 18 year old collage student - he and 4 of his friends were walking out to their car when a police officer stopped them. Said he smelled alcohol on them and breathalyze them. My son blew a 0.05 - they had no alcohol on them and the driver blew a 0.00. He was arrested w/o being read his rights. Is this legal?
Submitted: 1 year ago.
Category: Criminal Law
Customer: replied 1 year ago.
Btw it was 8:30 pm
Expert:  Zoey_ JD replied 1 year ago.


If your son wishes to go to fight this case all the way to trial, he will be able to get a special pre-trial suppression hearing to look into whether the basis for the stop was lawful and for any violation of your son's Miranda rights.

It is not necessary that your son and his friends have alcohol on them. They are not allowed to drink alcohol. At the suppression hearing, the officer will testify that he saw minors who smelled and acted as if they'd been drinking and that this gave him probable cause to stop them and breathalyze them. If your son made incriminating statements to the officer when he was not free to leave and wasn't given his Miranda warnings, any statement that he made could be suppressed.

A judge will determine whether the police behaved legally after all of the evidence has been presented and the officer has been fully examined and cross-examined. The US Supreme Court says that determinations of constitutionality be determined on a case by case basis after a suppression hearing. The standard for the judge's decision has also been set by the Supreme Court and that is what would be reasonable for a police officer to do based on all of the facts and circumstances.

Typically, these cases don't get that far. Very weak cases will get dismissed at arraignments. As for the others, a defendant would be eligible for a diversion type of disposition. That is, if he wants to resolve this with a plea bargain rather than take it to trial, he could get a deal where he could essentially work the conviction off of his record by staying out of further trouble during a period of supervision, paying fines, doing community service and taking an anti-alcohol class. At the end of his successful completion of his requirements, the case against him would be dismissed.