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Thread: can a minor refuse to submit to a breath test

  1. #1
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    Question can a minor refuse to submit to a breath test

    My 16 year old son refused to take a breath test and asked for his parents. The officer detained him in handcuffs. What are my son's rights in this situation?

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    We don't have much detail here. Was he driving, at a party or just what? Did he later take the test? Was he released to a parent?

    You might want/need to get a lawyer for your son.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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    Agree with you need to get a lawyer for this one. Your son did the right thing by asking for parents, but in many places he also needed to state that he wanted a lawyer. I've seen a couple of situations with minors go really bad because the child did exactly what the police stated to do. And these were good kids who really were in the wrong place at the wrong time.

    I agree though with Betty, there aren't enough details to tell you what your son's rights are. In some states, refusal to take a breath test is not good because there is some implied consent when you choose to get a drivers license (if he was pulled over while driving rather than a PUI). You could check online by googling "(state) refusal to take Breathalyzer" that might get you more specific information on your state. Consequences can range from loss of license to jail time if he was driving and got pulled over.

    Call a lawyer 1st thing this morning and possibly a counselor if you think for any reason that your son was drinking alcohol in public or while driving at 16. Whether as a parent you agree with it or not, it is still against the law. I can see some leeway if he were closer to 21 on it, but 16 is way too young to be in a situation where an officer of the law would even need to do a Breathalyzer.

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    I did notice your home state was Kansas, so this is what I found:
    "Kansas law requires you to take a blood, breath, or urine test if you are arrested for a DUI. Kansas’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). You may be asked to take more than one test, and you must take all the tests an officer asks you to take or accept the penalty for refusal. The test or tests must be taken within two hours of your arrest, and the officer gets to choose which ones you take.

    You could be arrested for a DUI even if you didn’t make a car move. Even if you merely attempt to operate a vehicle while you are under the influence of drugs or alcohol, then you face the same consequences as if you had been driving. An attempt to operate can mean, for example, that an officer has not seen you drive, but catches you stumbling out of a car and smelling of alcohol. To find out more about the meaning of attempt to operate a vehicle, you can read the case State v. Stevens, 172 P.3d 570 (Kan. 2007).

    You can read Kansas’s implied consent law in the Kansas Statutes Annotated 8-1001"
    http://dui.drivinglaws.org/resources...est/kansas.htm

    The bold and underlined are mine. I suspect that this was covered when your son took Drivers Education (again if this was a driving issue).

    Again, get a lawyer this morning!

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    Yep, even without complete details, discuss with a lawyer. Good luck.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    My son was not driving. He had been drinking with friends earlier that night. At around 2:30 in the morning they went to convenience store for something to drink. He officer ssid his eyes were blood shot and glazed over so he out came the PBT. He refused and said he would just go home. It was then the officer detained him and took him to sheriff's dept. Again he asked for his parents. This request not granted and he was forced to take PBT.

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    If my 16 year old son was out at the convenience store at 2:30 in the morning, he wouldn't be asking the police to get his parents; he'd be asking the police to protect him from his parents.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Ok, you might still want to talk to a lawyer.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    Quote Originally Posted by kcisneroz View Post
    My son was not driving. He had been drinking with friends earlier that night. At around 2:30 in the morning they went to convenience store for something to drink. He officer ssid his eyes were blood shot and glazed over so he out came the PBT. He refused and said he would just go home. It was then the officer detained him and took him to sheriff's dept. Again he asked for his parents. This request not granted and he was forced to take PBT.
    Which do you think was wrong, not calling you as asked or being taken to the station? When were you notified?

    So it seems more like a public intoxication charge rather than a DUI (which is much better in the long run).

    Keep in mind you are hearing one side of the story. I imagine the police have a much different version of events.

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    In many places, kids under 18 can be charged as adults and would not have the right to call a parent. Again, the best advice I have been given is to teach kids to ask for both parents AND a lawyer.

    But I have to agree with cbg.....my kid would want protection from me if he managed to be in this situation. And honestly my 16 yr olds were never allowed out after a curfew that was much earlier than 230am. There is just too much trouble they can get in. And I suspect convenience stores late at night visits are good places to try to buy alcohol or have an adult buy it for you. That's how many of my friends years ago used to get their under-aged alcohol purchases.

    I would still speak with a local attorney. But I would be less worried about what the police did and be more worried about why DS was there in the first place with enough for the cop to even have a suspiscion. If he failed the Breathalyzer, to me it wouldn't matter that he was a minor and not allowed to call parents. Instead I would be worried about a 16 yr old drinking at 230am with friends, 5 yrs before it is legal. Don't make him the victim....
    Last edited by hr for me; 04-10-2015 at 07:07 PM.

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