Skip to content
Legal Rights » Underage Consumption: Can Minor Refuse Breath Test?

Underage Consumption: Can Minor Refuse Breath Test?


    What are the most important underage drinking laws in Minnesota?  Can police force a minor consumption suspect to blow into a breath test machine?  The three biggest legal problems for those underage are:

    1. underage consumption;
    2. minor in possession of alcohol; and,
    3. underage drinking and driving (“not a drop”)

    Underage drinking laws and driving

    The most important of the underage drinking laws is the “not a drop” underage drink and drive law.

    If you’re driving a motor vehicle in Minnesota, police can invoke a Minnesota Statute to demand a breath sample. And the small roadside device is a Portable (or Preliminary) Breath Test (“PBT”) machine.

    If the driver refuses, the statute then authorizes arrest for suspicion of DWI.

    What about drivers under age 21? 

    Under 21, any alcohol consumption and driving is a crime.  It’s a crime in Minnesota even without impairment, even below the legal limit for adults. And Minnesota Statutes §169A.41 authorizes police to request an underage driver of any age blow into a PBT if she observes the statutory preconditions.

    Then if the driver either refuses or the PBT indicates the presence of alcohol, the police officer will typically decide she has probable cause to arrest for DWI or for underage drinking and driving (Minnesota Statutes §169A.33).

    What about passengers under age 21?

    Police cannot lawfully require a passenger to blow into a PBT, according to the Minnesota Statute authorizing PBT requests. Minnesota Statutes §169A.41, Subdivision 1 (When authorized.)

    And police cannot require anyone to perform field exercises or Field Sobriety Tests, after a traffic stop. So politely decline. Police are good at getting people to willingly do them. But don’t you be one of them. For more about DWI, see our DWI pages.

    Minnesota underage drinking laws: Can a minor consumption suspect refuse a breath test?
    Can a minor consumption suspect refuse a breath test?

    Minor Consumption (not driving); underage drinking laws

    What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?

    There are no underage drinking laws that require that young person to provide a breath sample, away from a car. 

    An odor of an alcoholic beverage does not allow police to require a breath test.  This is true when walking down the street, or at a house party.

    Police cannot require a breath test

    A young person in this position can simply refuse to consent to such a search.  Refusal to blow into a PBT does not allow police to arrest a pedestrian (unlike some drivers).  Underage drinking laws don’t give police legal authority to demand a breath test.

    The Minnesota DWI Statute on Preliminary Screening Tests does authorize use of these in underage consumption cases in court.  But it does not allow police to “require” someone with no connection to a motor vehicle, to blow into a PBT.

    That means police busting a underage drinking party cannot require pedestrian young people to blow.

    And police cannot collect a breath sample via physical force (unlike a blood sample).

    A case in Michigan illustrates some of the key points.  Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  The City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors.

    The court struck down the underage drinking law as unconstitutional.  There, police did not claim to have consent from the accused, nor did they have a search warrant.  The court also confirms the obvious – when police take a breath sample that is a search.

    Under the Fourth Amendment of the U.S. Constitution, police must have a search warrant, or a recognized exception to the warrant requirement.

    Consent can be an exception. 

    But if police coerce “consent,” then it is not consent.  

    So, be sure to avoid any consent.  And ideally say “I do not consent!”

    I know of no Minnesota statute giving police authority to “require” a breath sample for alcohol testing; unless in connection with a carry weapon permit or motor vehicles.  (And since the minimum age for a carry permit is 21, we can ignore that aspect for now.)

    So police will often seek actual consent.  Or police try to coerce “consent.” 

    But if police request a breath test; you need not “consent” to the search or provide a breath sample.

    The police and local prosecutors can still charge underage consumption crimes without PBT evidence, based upon other, available evidence.  (But the most damning are verbal admissions by the accused.)

    Regardless, you’ll have a stronger defense if you refuse to blow; and refuse to talk.

    Know your rights: minor in possession, minor consumption

    Minor in possession of alcohol; underage drinking laws

    A related legal problem for people under 21 is a Minor in Possession charge.

    Now that Minnesota’s underage drinking laws set the drinking age at 21, it’s really an underage possession of alcohol charge.  And since a “minor” becomes an adult at age 18, that is a more accurate name.

    Defenses to any kind of criminal possession charge apply to a minor in possession charge.  So what evidence does the government have of “possession?”

    Most police contacts happen with drivers and motor vehicles.  Therefore keeping contraband, including alcohol, out of the car is a basic precaution.  Or, at least keep it out of “plain sight” in the trunk.  And of course, the Open Bottle law applies to underage people just as much as to adults.

    For pedestrians, defensive measures include refusing any breath test, and avoiding talking about it at all.

    Other commonly related problems include the crimes of giving false information or identity to police, and less often, fleeing

    But no Minnesota law requires a person to identify themselves to police, with few exceptions.  Exceptions include driving, hunting, carry permit, etc. 

    If a person is not driving; they need not carry a drivers license or other ID.

    But avoid giving a false identity to police; which is a worse crime than underage drinking, in the eyes of most.

    If a police officer tells you to stop, fleeing a police officer is a crime in Minnesota, whether in a vehicle or not.  And it’s a more serious crime than minor consumption, minor in possession, or other violations of underage drinking laws.

    You need to stick up for yourself and assert your rights.

    So, what is a legal right?  It’s yours.  It belongs to you.  But like anything that belongs to you, you can throw it away.  You can give it up, or give it away foolishly.  Don’t do that.

    Get your back up.  Assert your rights.  If you can’t do it with inner confidence, at least look confident about it.

    Next, as long as you remember to assert your rights fully, you will have them. 

    And you can do so politely.  In fact, if you assert your rights in a polite but firm way, you’ll appear more confident.

    So know your rights.  And protect yourself from police and the government.

    Gallagher Criminal Defense logo 200

    In general, police cannot compel a person suspected of a crime to talk or provide information.  And police cannot force a person to consent to a search

    You should avoid doing either.  However, any information you do provide should be truthful. 

    Tip: you can’t lie if you say nothing. 

    When in doubt, seek legal advice from a lawyer before making a statement or consenting to a search.

    Author: Thomas Gallagher Minneapolis Criminal Lawyer

    Call Now Button