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Underage Consumption: Can Minor Refuse Breath Test?

  • 9 min read

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 alcohol-related 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 & 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. Though, the law broadly applies not only to “drivers,” but also those “operating, or in physical control of a motor vehicle.” (And sometimes that can include someone sleeping in their car.) See more about that on our DWI page.

What about drivers under age 21?

“Drive, operate, or be in physical control of a motor vehicle:” Under 21, any alcohol consumption and driving is a crime. It’s a crime in Minnesota even without impairment, and even below the legal limit for adults, under Minnesota Statutes §169A.33. And, Minnesota Statutes §169A.41 authorizes a police officer to request the underage person driving, operating, or in physical control, to 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 21?

Police cannot lawfully require a mere 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 minor consumption suspect refuse a breath test?
Can a minor 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 motor vehicle.

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

Two Types of Breath Tests

Police in Minnesota ask drivers and others to blow into two different types of breath test machines. We call one of them the Preliminary Breath Test (“PBT”). It is less accurate as to level of alcohol. But it is more portable, quicker and easier to use. Police use it as a “screening test,” for example to screen out someone who might appear impaired but not by alcohol (like a Diabetic having an insulin reaction).

The other type of breath test machine is an “evidentiary breath test.” It is larger, takes longer, and requires more effort. But under proper conditions, it can be more accurate about alcohol level, than a PBT, screening type test. Currently in Minnesota, police use a DATA MASTER DMT breath machine as an evidentiary breath test machine. These are most often used in DWI cases. For more on breath test machines, see our Breath Test Machine page.

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 PBT results, in underage consumption cases in court. But it also does not allow police to “require” someone with no connection to a motor vehicle, to blow into a PBT.

Bottom line, 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 to lawfully search, or a recognized exception to the warrant requirement. And “consent” can be an exception.

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

So, be sure to avoid any consent. And 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.

Beer cups. Know your rights: minor in possession, minor consumption
Know your rights: minor in possession

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 knowing “possession?”

Most police contacts happen with drivers, and motor vehicles. So, keeping contraband, including alcohol, out of the car is a good precaution. Or, failing that, 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. Remember that both giving a fake ID, and fleeing police are more serious crimes than “underage consumption” and “underage drink and drive.” (Avoid making a smaller problem, bigger!)

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. And a person need not answer questions for police. Without an ID and without an admission of age, police may lack evidence for “probable cause.”

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.

Are you confident? Or are you afraid? Understanding your legal rights can help make you more confident, less afraid. 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 feel and appear more confident.

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

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 choose to 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.

Question? Call Attorney Thomas Gallagher, 612 333-1500

Author: Thomas Gallagher Minnesota Criminal Lawyer

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