If you’ve watched an ACC basketball game lately, you’ve seen these ads. The first features a mother placing a pair of diamond earrings on her daughter’s ears, telling her that her grandmother always wanted her to have them. Several seconds go by before the viewer sees that the mother is dressing her daughter’s body, which lies in a casket. The second commercial begins with a dad talking to his son (who is off camera) about the chilly weather and how he will need to bundle him up when they go for a walk. The father continues to talk while he mashes bananas for his son’s breakfast. When the camera pans to the son, the viewer learns that he is not a baby, but instead is a young man confined to a wheelchair. The son is immobile, unable to speak, and has prominent scar on his skull. Both advertisements conclude with the same general message: Talk to your children about the dangers of alcohol and stop underage drinking. The ads are professional, poignant, and pervasive. Where did they come from? Continue reading
Tag Archives: alcohol
At the start of the fall semester, the Daily Tar Heel reported that Chapel Hill and Carrboro police officers have combined forces with UNC campus police in an effort to ramp up enforcement of laws prohibiting underage drinking. The article states that undercover operations are among the tactics employed by the town’s Alcohol Law Enforcement Response Team to ferret out college-age miscreants.
G.S. 18B-302, the statute that makes it unlawful to for a person less than 21 years old to consume alcoholic beverages, places another enforcement tool at officers’ disposal. G.S. 18B-302(j) permits a law enforcement officer to “require any person the officer has probable cause to believe is under age 21 and has consumed alcohol to submit to an alcohol screening test using a device approved the Department of Health and Human Services.” Approved devices, listed here, include several versions of the ALCO-SENSOR brand of breath testing devices. Regulations further prescribe the manner in which screening tests may be administered on such devices. G.S. 18B-302(j) renders “admissible in any court or administrative proceeding” a person’s refusal to submit to testing on an approved alcohol screening test device.
Of course, such alcohol screening test devices, commonly referred to as portable breath tests or PBTs, also are approved for and commonly employed in the investigation of implied consent offenses. G.S. 20-16.3 permits a law enforcement officer to require the driver of a vehicle to submit to an alcohol screening test within a relevant time after the driving if the officer has (1) reasonable grounds to believe that the driver has consumed alcohol and has committed a moving traffic violation or been involved in an accident or collision; or (2) an articulable and reasonable suspicion that the driver has committed an implied-consent offense under G.S. 20-16.2, and the driver has been lawfully stopped or “lawfully encountered” by the officer in the course of the performance of the officer’s duties. Refusal by a driver who is under 21 to submit to an alcohol screening test may be considered by a court in determining whether alcohol was present in the driver’s body for purposes of a prosecution under G.S. 20-138.3.
A test of a person’s breath on an approved PBT is not a “chemical analysis” for which a driver’s consent is implied pursuant to G.S. 20-16.2. Yet the administration of such a breath test by a law enforcement officer is a Fourth Amendment search. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989) (holding that “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis” is a search governed by the Fourth Amendment); People v. Chowdhury, 775 N.W.2d 845, 854 (Mich. App. 2009) (rejecting argument that because PBT is less intrusive than a Breathalyzer test, it is not a search for purposes of the Fourth Amendment); cf. State v. Jones, 106 P.3d 1, 6 (Kan. 2005) (asserting that while “[i]t would be overbroad to declare that all PBT’s are searches . . . the particular PBT used on [the defendant] tested his deep lung breath for chemical analysis and, under Skinner, was a search subject to the strictures of the Fourth Amendment”). For such a search to satisfy the reasonableness requirement of the Fourth Amendment, it must–absent the person’s consent to the search, exigent circumstances, or a special needs exception to the warrant requirement–be carried out pursuant to a judicial warrant issued upon probable cause.
Courts have long recognized that exigent circumstances may justify the warrantless search of a defendant’s blood when there is probable cause to believe the defendant was driving while impaired and that the delay necessary to obtain a warrant threatens the destruction of evidence. See Schmerber v. California, 384 U.S. 757, 770–71 (1966) (explaining that “’where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant”); State v. Fletcher, 202 N.C. App. 107, 110-13 (2010) (upholding finding that officer investigating impaired driving offense reasonably believed that the two or three hour delay associated with obtaining a warrant would result in the dissipation of the alcohol in defendant’s blood and that exigent circumstances allowed a warrantless blood draw).
Perhaps the exigencies identified in Schmerber, combined with the minimally intrusive nature of a PBT when weighed against the danger to the public posed by impaired driving, render constitutional the routine warrantless administration of alcohol screening tests to drivers suspected of committing an implied consent offense. Courts in other states have concluded that such searches are reasonable under the Fourth Amendment. See State v. Prescott, 784 N.W.2d 873, 885-86 (Neb. 2010) (holding that “[b]ecause a PBT is quick and minimally intrusive, and because the State has a compelling interest in removing drunk drivers from its highways . . . an officer is reasonable in administering a PBT if he can point to specific, articulable facts indicating that an individual has been driving under the influence of alcohol); State v. McGuigan, 965 A.2d 511, 517 (Vt. 2008) (finding “[t]he relatively limited intrusion into a suspect’s privacy” of a PBT “outweighed by the important public-safety need to identify and remove drunk drivers from the roads” and thus finding it reasonable under the Fourth Amendment for an officer to administer a PBT to a suspect if she can point to specific, articulable facts indicating that an individual has been driving under the influence of alcohol.)
I wonder, though, whether the degree of urgency in Schmerber or the state’s interests in Prescott and McGuigan apply to the need to obtain breath samples from underage persons suspected of consuming alcohol. Given that the gravity of the underlying offense is among the factors to be considered in determining whether an exigency exists so as to justify a warrantless search, see Welsh v. Wisconsin, 466 U.S. 740 (1984) (determining that “a warrantless arrest of defendant in his home cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant” when offense for which defendant was arrested was a noncriminal traffic offense); McCarn v. Beach, 91 F.3d 131 (4th Cir. 1996) (listing the gravity of the offense as among the factors relevant to the issue of exigency), is consumption of alcohol by a 19- or 20-year old (a Class 3 misdemeanor, see G.S. 18B-302(i)) or a person under 19 (a Class 1 misdemeanor, see G.S. 18B-102(b)) sufficiently serious to justify a warrantless search based on exigent circumstances?
The United States District Court for the Eastern District of Michigan has struck down as unconstitutional a city ordinance and state law that allowed an officer with reasonable cause to believe a minor had consumed alcohol to demand that the minor submit to a warrantless breath test. See Platte v. Thomas Township, 504 F. Supp.2d 227 (E.D. Mich 2007); Spencer v. City of Bay City, 292 F. Supp.2d 932 (E.D. Mich. 2003). Neither law imposed jail time as a sanction, instead providing for punishment by a fine and imposing a civil fine for refusal to submit to testing. Platte and Spencer concluded that the laws’ blanket authorization of warrantless searches was repugnant to the Fourth Amendment, rejecting the argument that exigent circumstances always exist whenever breath samples are sought and that the legislature can determine and automatically apply this exception to the warrant requirement. Platte , 504 F. Supp.2d at 241-42; Spencer, 292 F. Supp.2d at 943-44. Spencer also rejected the city’s argument that the special needs exception to the warrant requirement applied, stating “ [t]here is nothing ‘special’ in the need of law enforcement to detect evidence of ordinary criminal wrongdoing; even where crime is on the rise and the disorder and insecurity caused by criminal behavior in a community is grave, the Supreme Court has consistently held that ‘the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.’” 292 F. Supp. 2d at 941 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 42, (2000). The Michigan Court of Appeals in People v. Chowdhury, 775 N.W.2d 845 (Mich. App. 2009), followed suit, finding Platte and Spencer persuasive and ruling unconstitutional a substantially similar city ordinance. In addition, the Chowdhury court rejected the city’s argument that the defendant’s consent to the PBT in that case dispensed with the need for a warrant. Noting that “[t]o validate an otherwise unreasonable search or seizure, consent must be unequivocal, specific, and freely and intelligently given,” the court concluded that the defendant’s acquiescence to the orders of a law enforcement officer who did not ask for his consent did not amount to consent freely and voluntarily given. Id. at 855-86.
North Carolina’s laws prohibiting consumption of alcohol by underage persons differ from the laws ruled unconstitutional in Platte, Spencer and Chowdhury in that there is no civil penalty for refusing a portable breath test and certain defendants with prior convictions may serve jail time for underage consumption. Nevertheless, the analysis in Platte, Spencer and Chowdhury still strikes me as relevant. The statutes considered in those case criminalized the same conduct prohibited by G.S. 18B-302(b)(3), and despite the potential for jail time, violations of G.S. 18B-302(b)(3) (particularly when committed by a 19- or 20-year-old) are relatively minor offenses.
Readers, if you have thoughts about or have litigated the constitutionality of compelled PBTs in underage drinking prosecutions or implied consent cases, please share them.
[Editor’s note: This post was revised slightly on January 25, 2011, in response to a helpful comment.]
Here’s a quiz.
Ashley Angel, who is 21 and a senior in college, leaves the library, where she has been diligently studying for mid-term exams for the previous six hours, to drive to a party a few miles from campus. On the way, she picks up her friends, Bethany Bedlam and Diana Daring, who also are 21. Bedlam and Daring have spent the last few hours gearing up for the party rather than studying. Bedlam gets into cab of Angel’s pick-up truck with an open bottle of King Cobra malt liquor in her hand. Daring hops into the truck bed with an open beer. At the next stoplight, Angel drives up next to a police vehicle. The officer sees Bedlam holding the bottle of malt liquor, which clearly is half-full, though the cap is screwed on top of the bottle. From her perch in the bed of the truck, Daring drinks from her bottle of beer and waves to the officer. When the light turns green, the police officer pulls behind Angel’s car and activates the blue lights and siren on her cruiser. Which of the following is a true statement?
A. Angel has violated North Carolina’s open container law by driving a motor vehicle on a highway while there is an open alcoholic beverage in the passenger area of the motor vehicle.
B. Bedlam has violated North Carolina’s open container law by possessing an open alcoholic beverage in the passenger area of a motor vehicle.
C. Daring has violated North Carolina’s open container law by possessing an open alcoholic beverage and consuming it in the passenger area of a motor vehicle.
D. All of the above statements are true.
E. Only B and C are true.
F. There is no open container violation in this case.
I wanted to print the correct answer in tiny font upside down at the end of this post. But Jeff, our resident blog meister, doesn’t know how to do that. [Editor’s note: Don’t blame the messenger — I don’t think our blog software supports upside down text! Tiny, I could do.] So, to avoid spoiling the surprise by putting the answer right here, I’ll devote the rest of this post to a discussion of the controlling statute.
The prohibition against transporting an open container is codified in G.S. 20-138.7. There are two types of violations. First, it is an infraction to possess an alcoholic beverage in other than the unopened manufacturer’s original container or to consume an alcoholic beverage in the passenger area of a motor vehicle while the vehicle is on the highway. See G.S. 20-138.7(a1). The passenger area of a motor vehicle is defined as “the area designed to seat the driver and passengers and any area within the reach of a seated driver or passenger, including the glove compartment.” G.S. 20-138.7(f). Neither the trunk nor the area behind the last upright back seat of a station wagon, hatchback, or similar vehicle is considered part of the passenger area. Thus, the bed of Angel’s pick-up truck, where Daring is seated, is not part of the passenger area.
There are a few exceptions to the rule prohibiting possession and consumption of open alcoholic beverages in the passenger area of a motor vehicle. It’s okay to consume or possess an open alcoholic beverage in the passenger area of a motor vehicle that is designed, maintained, or used primarily for the transportation of persons for compensation. Ergo an of-age bride and groom can sip champagne in the limousine as they are leaving the reception without fear of violating the law. Folks also may lawfully consume or possess open containers of alcohol in the living quarters of a mobile home, house car, or house trailer. (In case you are wondering, it takes more than a pillow and change of clothes to qualify as a “house car.” Such a vehicle must have at least four of the following facilities: cooking, refrigeration, self-contained toilet, heating or air conditioning, a portable water supply system including a faucet and sink, separate 110-125 volt electrical power supply, or an LP gas supply. G.S. 20-4.01(27)(d2).) Thus, as you’ve no doubt deduced, Bedlam has violated the open container law. But only Bedlam, and not Angel or Daring, may be cited for this infraction, since only the person who possesses or consumes an alcoholic beverage in violation of G.S. 20-138.1(a1) may be charged with this infraction.
What about Angel? The other type of open container offense defined in G.S. 20-138.7 is a more serious violation, a Class 3 misdemeanor for first-time offenders, and may be committed only by the driver of a motor vehicle. G.S. 20-138.7(a) prohibits driving a motor vehicle on a highway while there is an alcoholic beverage in the passenger area in other than the unopened manufacturer’s original container if the driver is consuming alcohol or alcohol remains in the driver’s body. Angel, who has been studying all day, presumably has no alcohol remaining in her body and she is not consuming alcohol. Thus, she has not violated G.S. 20-138.7(a).
There are a few more statutory oddities worth noting. “Motor vehicle” has a special definition under G.S. 20-138.7. In this context, the term “means only those types of motor vehicles which North Carolina law requires to be registered, whether the vehicle is registered in North Carolina or another jurisdiction.” G.S. 20-138.7(a3). So the offense can’t be committed in a golf cart–a device considered a motor vehicle in other contexts but which cannot be registered with DMV. See G.S. 20-54(8).
G.S. 20-138.7(b) provides that open container offenses are alcohol-related offenses subject to the implied-consent provisions of G.S. 20-16.2. Does this mean the officer may arrest Bedlam and take her to the police station for a breath test? I don’t think so. Infractions are non-criminal violations of the law, for which a person may not be arrested. See G.S. 14-3.1. I doubt the legislature intended to supersede the rule in G.S. 15A-1113(b), (c), which allows a law enforcement officer who believes a person has committed an infraction to detain a person for a reasonable period in order to issue and serve a citation and, in very limited circumstances, to take the person before judicial official to determine if a bond is necessary, by authorizing a longer and more intrusive detention of a person charged with violating G.S. 20-138.7(a1). Instead, I think an officer may require submission to a chemical analysis only for drivers charged with the misdemeanor offense.
In any event, it seems unlikely that drivers charged solely with violating G.S. 20-138.7(a) are hauled to the breath testing room very frequently, since G.S. 20-138.7(d) authorizes the administration of an alcohol screening test and reliance upon its results in court for the purpose of determining whether alcohol was present in the driver’s body.
