Know Your Rights
One of the first things that any MIP attorney should look at is how the minor was stopped and questioned from the beginning. This is critical because of the case described earlier in Constitutional Law 101, Terry v. Ohio. The police must have “reasonable and articulable suspicion” of criminal activity to even stop a citizen and question them. In plain language this means that if you are simply walking on campus, minding your own business and it happens to be 2 a.m., the police do not have the right to stop you!
I had a case where I was able to successfully argue that the police did not have reasonable suspicion to stop my client. He was walking on campus with a Pepsi bottle and doing nothing else to raise suspicion. We were also able to argue that the police did not have the right to search the Pepsi bottle either. Bottom line, do not give the police reason to stop you by stumbling, sitting on a curb with your head down, or disturbing the peace by being loud and obnoxious.
-by Attorney William McNeil, Of Counsel for The Law Offices of Raymond Purdy
If the police have essentially “detained” you, whether it is making you stand in a living room, or have taken you from a car, there is a very strong argument to be made that you should have your Miranda rights read to you before they question you about drinking. These are the typical warnings you know from TV…”you have the right to remain silent, anything you say can and will be used against you in a court of law”. If you are not free to leave and in “custody” they cannot interrogate you or question you with reading you your rights. I have had many statements thrown out by judges due to the violation of this rule.
This is probably the biggest area of defense in MIP law today. Due to the case law in the federal court and at the Court of Appeals level, it is clear that the police MUST get your consent before taking a sample of your breath for a Preliminary Breath Test or PBT. The reason for this is complicated, but all you need to know is that there is no longer any sanction for refusing to take a PBT in Michigan. Some police agencies are even requesting minors to sign consent forms.
Another avenue for attack is that these cases have also struck down section 6 of the MIP statute as being unconstitutional. This section deals with the PBT and its admissibility in court. It is a valid argument that even if there was consent gained to take the PBT, that it is unreliable evidence and should not be allowed in by the trial court.
You should make sure to consult with a qualified MIP attorney before attempting to assert these defenses yourself with a prosecutor. Most will certainly not change their mind or give you a better deal simply because you assert one of these defenses. It will usually take a motion being filed and a ruling by the trial court to get any movement on their part in terms of plea bargaining.
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