breathalyzers

[laure311]

hey guys- so it's been a while. but i have a question for you all.

here's the story: at the homecoming dance this weekend the principal has a breathalyzer ready for anyone he thinks may be intoxicated. we had an assembly about it to let us know that we should make good choices and not come to the dance drunk or anything.

someone, i'm not sure who, but i know it was one of the students, is putting up flyers around the school explaining that if we are asked to take a breathalyzer, we have the right of the fifth amendment to say: 'i respect the fifth amendment, i decline'.

here's my question. well, questions.

1) as most of us are minors in this high school, excepting some seniors, does the fifth amendment even apply to us? do we have that right?

2) does the fifth amendment protect you from taking a breathalyzer?

also, just to verify: is it true that the only time we ever must take a breathalyzer is if we are pulled over and asked by a police officer because he thinks we are dwi?

thanks guys- i'll look forward to comments, answers, discussions and such.

-laura

[SatansLeftHand]

Originally posted by laure311
1) as most of us are minors in this high school, excepting some seniors, does the fifth amendment even apply to us? do we have that right?you do indeed have that right.

2) does the fifth amendment protect you from taking a breathalyzer?that i'm not sure of.

also, just to verify: is it true that the only time we ever must take a breathalyzer is if we are pulled over and asked by a police officer because he thinks we are dwi?-laura actually, you don't have to take one then, either. they cannot force you to. however, refusal to go along is automagically counted as admission of guilt for legal purposes.

[laure311]

what happened to 'innocent until proven guilty'?

[Mudflap]

Originally posted by laure311
what happened to 'innocent until proven guilty'?

It remains nothing more than PR slogan, just as it always was.

[Torque]

Sure, you have the right to decline the breathalyzer at this school function. Just be ready to accept any consequences that might arise.
Possibilities:
Being asked to leave.
Local law enforcement called in.
Suspension/Detention for disobedience.
Notification of parent/guardian.

To me, these are all valid and likely responses.

People have a lot of rights. They do not have the right to make choices free of any consequences though.

[Escape Artist]

As a citizen of the good ol' USA, you are accorded all the rights in the Constitution as any other, regardless of age, location, etc.

Unfortunately, that puts you squarely in the domain of personal consent...and it's arguable that by attending a dance (or even school) you automatically agree to certain terms - that being breathalyzer tests, getting your backpack searched, (as i did every fucking morning) and other good things.

Amendment #5 says you're protected against unreasonable searches - principal needs and has outlined that he will use probable cause, so you're not getting outta that one. Consent by attending's enough to make that a big tangle. You could argue probable cause, though...and if you're not actually intoxicated, he'd be in somewhat deep shit.

Amendment 5 also states that you're not to be a witness against yourself, but it largely seems to apply to criminal cases...I know I've heard it interpreted as stating that you can't be made to incriminate yourself, but I'm hesitant to give it that much weight.

Really, you're stuck in the position of whether or not you have agreed to such things - on paper, by attending, or verbally; or if it's legally binding nonetheless. If not, then the 5th applies to you but you'll have to argue consent and put up with lots of fucktard school administrators and their backers..."think of the children, who need no rights!" seems to be their motto as of late.

BTW - breathalyzer tests for drivers are technically illegal. :) When you get your license you're forced to consent to it at any time as one of the terms, and I think you probably agree to the criminal penalties too.

[MAC]

Torque will not lead you astray here. You do NOT have to take the test and they cannot make you take it. However, they can bar you from entering, or make you leave.

Incase you hadn't noticed, from the many, many news articles and discussion here, you can toss around your constitutional rights all you want and they mean shit until the judge slams his gavel in your favor. IRL you are supposed to show some respect for ppl's rights. The-powers-that-be can only do that so long when they face "issues" such as teen drunkeness. Then they make descisions like threatening a bunch of kids they DON'T want out on the streets drunk with a breathlizer test to get INTO a chaperoned party where they can't get pregnant or dead. Oh well. Good thing I'm not your principle huh?

But playing lawyer at the door of your homecoming dance will only waste everyone's time. If you want to go drink, go drink. If you want to go to the dance first, do that.

And keep in mind that you will may actually want to have a drink, smoke or sex when you are 40. Don't wear it out now and don't make stupid mistakes that screw it up.

I guess that's the problem with fun things...they break easily.

[Koliedrus]

I'm in agreement with the conclusions expressed thus far regarding this particular situation.

Here's another one:

Put yourself in the position of being an employee of an establishment that sells alcohol; from convenience-store clerk to nightclub bartender.

On the bartender end of that scale, your responsibility ends after confirming that the patron is of legal drinking age. On the clerk end, however, legal age is just the beginning.

Major grocery chains, for instance, include alcohol sales guidlines as part of new hire orientation. You sign a piece of paper stating that you understand the guidelines and it's filed in your employee record.

Establishment of legal age is manditory.
Adhering to local ordinances regarding times of day when alcohol cannot be sold is next.

Here's the clincher: A clerk who sells alcohol to someone already intoxicated might result in termination should the intoxicated person cause an automobile accident regardless of injuries.

In other words, the company is covered by that signature and all responsibility is left to you. (ie, We told you. You're on your own, kid.)

One of my cashiers ran into this problem just last night. An obviously intoxicated woman was purchasing a six. I recognized her as a resident of the apartment complex across the street.

"Walking or driving", I asked.
"Walking", she slurred.
"Me, too. Walking you out. Okay with you?"
"K"

We sold her the beer and I went with her to the entrance of the complex to make sure she wasn't about to hop into a killmobile.

The cashier was a bundle of nerves when I returned.

"I know she was blisterred! How the hell am I supposed to prove shit like that?"

That got me wondering. We sell these cheap personal alcohol test strips. They take ten seconds under the tongue.
http://a1468.g.akamai.net/f/1468/580/1d/pics.drugstore.com/prodimg/77558/200.jpg
If asked to use one, the patron would feel embarassment. Lawsuit.

If the clerk isn't very good at "handling" people, lawsuit but this time against the clerk. Income for her drops into negative figures as she pays her own way through court.

Now, my question: should a clerk be allowed to confirm suspicion of intoxication before jeapordizing her livlihood by asking a potential road hazard to prove their sobriety?

As far as I know, no legal, corporate or civil standard has yet been established.

I'd like to be able to advise my cashiers.

[MAC]

am I my brother's keeper?

[Koliedrus]

No but you are my advisor. This kid is sick with wondering about how she should handle it next time if I'm not around.

[Pianomahnn]

Originally posted by Koliedrus
On the bartender end of that scale, your responsibility ends after confirming that the patron is of legal drinking age.

Uhm. . .no.

That's where it all begins. If a bartender serves a person until they are intoxicated, and this intoxicated person goes and kills someone with their car, the bartender can be held liable.

[MAC]

that's my point

there is NOTHING legal about my responsibility for what some other person does of their own intention

you want to walk them home to be safe that's great. I undertsand why YOu did it. But that's not what the clerk was wondering. She was wondering how her life, her family, her job, her money, credit, her criminal record, and everything else she loves became a crap shoot because some poor unwashed drunk decided to buy a product some store owner she has no influence over decided to sell beer.

she is a criminal
that clerk is a criminal because she got out of bed and went to work in the united states of america where men died so that some day a drunken bitch could be free to endanger others and pass on the liability with her bad choices to ppl who have to risk their care of their other patrons to police one.

so I ask again
am I my brother's keeper.

[Cruise Director]

Originally posted by MAC
am I my brother's keeper?

Here in Zion, yes you are. We have something called the "Dram-shop" law. Dram-shop makes the server personally responsible for the patrons condition. It is put on the shoulders of the bartender to cut off patrons who are inebriated. It is the bartenders responsibility to make sure you don't get in your car and drive when your pissed, either. The penalties are both civil and criminal.

The law also says that if I am working at Burger King, you come in and order a coke, I pour said beverage and hand it to you, you put booze in it with or without my knowledge, I am responsible for your actions. 99% of all restaurants have self serve drinks here now to eliminate their liability.

Scenario 2: I come in to your bar and get shitfaced. You don't let me drive and pour me in to a cab to take me home. I some how make it back to the bar and get in my car and drive (with or without your knowledge.) YOU, the bar, are responsible when I kill a family of 6.


It's a poopy law. I don't know why you'd want to work in a bar in Zion.

[SimpleSimon]

Mac, you know the answer to that - why are you asking?

Yes, by legal doctrine in the state of Texas, you ARE your brothers keeper.

[3MTA3]

Its not that its illegal in a criminal sense to serve a guy till shitfaced...it just leaves yourself and the establishment pretty wide open to a civil suit...you aint going to jail at least.

[Koliedrus]

I've been fortunate in that I haven't had to turn anyone down with a large crowd around. I have, however, had to say things along the lines of "your buzz isn't worth my job."

I've been offered everything from cash to sexual favors. My answer is always the same because TOMORROW truly means something to me.

Example:

"I'll give you 25 bucks"

"25 bucks... Lemme think. Court costs, mandatory suspension, lost wages... Fifteen-hundred and it's yours."

"Dollars?!"

"Gold will work if you have it."

"Fuhuhuhuck! You're crazy!"

"I assure you, I'm quite sane."

"Kiss my ass, motherfucker. I'm outta here and I'm never coming back. Asshole!"

"Now you're getting the point. Have a nice day."

I think maybe I'll keep one of those personal tests in my wallet and see what happens.

Addendum: The sound of five of these (http://www.americancombatives.com/baton.htm) opening at the same time has saved my life more than once.

[Billyman]

Originally posted by 3MTA3
Its not that its illegal in a criminal sense to serve a guy till shitfaced...it just leaves yourself and the establishment pretty wide open to a civil suit...you aint going to jail at least.

True.

But in N.C. several things happen.

1) An ALE officer tickets the bartender.

2) The ALE officer tickets and fines the establishment $10,000.

3) An investigation is launched and depending on the establishments past record (over the past ten years) they are apt to loose their ABC license for a specified amount of time.

The repercussion:

Bartender looses job, as the establishment’s owner, you pay the fine, if you loose your ability to sell alcohol…….so….how’s business doing?

It’s a helluva lot easier just to say “I think you’ve had enough buddy”.

[Torque]

I tended bar here in Georgia for a while. Guys that I knew had no car, and not enough smarts to steal one, I'd let them get drunk enough to hit the floor. When it was time to close, I'd just see if someone would drop them off, or pour them into a cab. Same guys most nights. Like this guy "catfish", we put seatbelts we made on his barstool as a joke. His had a velour slipcover the girl I tended bar with made for him, and nobody but fish could sit in it. And Phil and Marie, they'd come drink together, and end up falling out of their chairs hand in hand some nights. Cute couple.

Folks I didn't know, got cut off pretty quick, soon as they started getting a bit goofy. If they were spending plenty of money, I'd make sure they got something from the kitchen, and a coke. On the house, sometimes. Then maybe a cold one to wash it down.

Folks I knew that drove in, once they got shitty enough, I'd trade em car keys for their next beers. And make em call their old lady if they wanted more.

It was just a little beer joint. When I worked in nicer places, I'd follow company serving policies. I liked the little shitty place better, but the money wasn't as good.

[MAC]

I am not responsible for the 36 ppl who will die tonight from drunk driving and you can't make me responsible by passing a law.

http://www.alcoholstats.com/documentsVirtual/DrunkDriving2002Chart.pdf

[MuffyTheVampyreLayer]

Police are given powers to get you to take breath tests etc that would otherwise be a violation of your basic rights against search and seizure, last time I looked this right didn't extend to do-good principals. I don't see why you would have to comply with the principals request unless, as mentioned by someone else earlier, you have already given consent via whatever documents they make you sign at school these days - that being said, there is no reason why consent cannot be withdrawn. I don't see how refusal to take a non-mandatory alcohol test would be admissible as evidence of guilt either.

As mudflap pointed out, the 5th ammendment is usually used to avoid incriminating yourself in the court context, besides, failing a breath test isn't incriminating yourself any more than being fingerprinted is - i.e. YOU are not doing the incrimination - the evidence is. Thus using the 5th ammendment for the purpose suggested seems a load of bollocks to me. Even so, a stupid judge might buy into it.

[Koliedrus]

Tell me if I handled this right:

Two weeks ago at work, a guy wearing a walkman marched in fast-paced, wild eyed, saw me, said, "THE ENEMY WITHIN!"

He took one of his earphones out and went for my head so I could hear what he was hearing.

Instead of batting his hand away and dropping him, I sized him up while he stood still, holding the earphone to my head.

Talk radio. Something about NAFTA.

"Am I right?! Huh? I can't get a damned job because we're sending them all to Mexico!"

I thought, If I catch something from this nasty-ass earphone, I'll deal with it later. I smell beer on his breath. He's wired on something. Could just be adrenaline. I could drop him. I'll play.

"Bro, that stuff is only scratching the surface."
"I'm close though, right?"
"Go get what you came to get and we'll talk about it."

Off he went to the beer cooler. Big store = long walk.

My cashier said, "there's no way I'm selling that guy beer! He's toasted!"

I said, "this isn't a courtroom and you're not a judge. You need to think about the next few minutes first. What you do will have consequences."

"I... I ... You take it."
"Yeah. Ok. Stay close."

Back he came, six-pack in hand. I pointed him to a register and listened to him rant. I decided to mirror him with rants of my own. 30 seconds at best before he asked, "I'm close though, right?"

"No, man. Keep digging. Before I ring up this beer, you're not gonna do something stupid like drive are you?"

"Naw, I'm walking."

"You're not bullshitting me, are you?"

"No way!"

"Ok, but I'm gonna walk you out and if I see you pull out some car keys I'm gonna plant a steel-toed boot in your ass. Fair?"

"Hell yeah! What am I missing?!"

"A lot, man. A lot."

"I'm close, though, right?"

"Yeah. The enemy is within. It's closer than you think."

[SimpleSimon]

Originally posted by MuffyTheVampyreLayer
Police are given powers to get you to take breath tests etc that would otherwise be a violation of your basic rights against search and seizure, last time I looked this right didn't extend to do-good principals. I don't see why you would have to comply with the principals request unless, as mentioned by someone else earlier, you have already given consent via whatever documents they make you sign at school these days - that being said, there is no reason why consent cannot be withdrawn..........

Application for a drivers license requires your signature upon the state's forms. That signature is, in part, your consent to breathalyzer testing if an officer has "probable cause" (a very flexible standard) to believe you are operating a motor vehicle while under the influence of alcohol.

You may withdraw that consent quite readily - simply surrender your drivers license.

If you have ever obtained a driver's license as a civilian in this country, the US Supreme Court says that you have irrevocably surrendered your right to freedom of travel on the public highways of the nation at the controls of a motor vehicle without having said license in your possession.

The schools will not teach you, the police will not inform you - in fact most of them are unaware - that if you never obtain a license in the first place that that same decision said you may operate a motor vehicle for private travel on public highways. You may not carry freight of any kind, you may not transport passengers who are not immediate family members, you may not operate any form of transport whose primary purpose is commercial in nature.

Since the advent of mandatory financial liability coverage, the supreme court has revisited and modified that decision by asserting that the state has a reasonable right to require either proof of insurance (you cannot obtain that absent a valid driver's license) or proof of ability to cover other's losses by posting bond. In Texas that bond is $50,000, and no bonding agency in the state will grant you that bond without proof of a driver's license. That leaves only placing $50,000 in negotiable assetts or cash in escrow - basically covering your own bond. Few can afford that.

[MuffyTheVampyreLayer]

Yeah. I was talking about any implicit or explicit consent given to your school for your principal to breathalyze you - different kettle of fish.

[SimpleSimon]

Originally posted by MuffyTheVampyreLayer
Yeah. I was talking about any implicit or explicit consent given to your school for your principal to breathalyze you - different kettle of fish.

Quite so - or is it?

In fact, the school does not need your explicit permission if you are on the grounds of the school or if you are in a venue rented by or otherwise retained by agreement of the school for a school sanctioned event.

Unless you are over 18 years of age, that is.

The Supreme court has ruled in a number of related cases that the concern of the school in the safety of the students and the security of the school's property overrides a minor child's constitutional rights interest in being secure from unreasonable search and seizure. It is this doctrine which empowers the searching of student backpacks, book bags, purses and personal articles.

That same doctrine would reasonably apply to use of a breathalyzer by a properly trained adult in the posited circumstance.

[MuffyTheVampyreLayer]

I'm fairly certain the argument wouldn't hold much weight. What the school is permitted to do is in the interests of school stuff - if these kids are planning on doing stuff after the school event, for which they are breathalized, then arguably there isn't sufficeint proximity between the students planned actions and the schools interests. Generally personal rights shouldn't be violated unless the supreme court says it's ok first. I don't know about America, but over here the schools only have the right to stick their noses into out of school conduct if the student at question is in their uniform or on school grounds - that being said, a student was recently expelled for getting caught smoking pot in non school related circumstances. The board of trustee's upheld the decision - but it hasn't gone to court as far as I know.