You have the right to remain… pungent? In New Jersey, you arguably do.
Everyone’s heard their favorite cop show recite the Miranda warnings, which advise people of their right to remain silent, and they’re required any time law enforcement takes a person into custody or deprives them of their freedom in a significant way.
A state appeals court in the Garden State held last week that a police officer’s sniff of a young man’s breath at a party was the sort of police interrogation that required instructing the man of his Miranda rights.
The case involved police responding to complaints of a teenage party in 2009, and detaining the several dozen young people who didn’t flee. The officer lined them up and sniffed the breath of each one. Before he approached Zeb Koch, the young man blurted out that he “only had one” drink. He was convicted of underage consumption of alcohol, which the appeals court has now reversed.
The court found that sniffing of the man’s breath was “clearly in a custodial setting,” and said the officer’s actions were implied questions to those being detained. Since Koch wasn’t given his Miranda rights, his statement had to be suppressed, the court said.
What’s more, the court held that the smell of alcohol at the party was “a given,” so the “sniff test without excluding other sources was not sufficient to establish Koch was drinking.”
The conviction was reversed because “no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.”
It remains to be seen how this case will impact DUI prosecutions in New Jersey where the smell of liquor on one’s breath could be a factor.
The Right to Refuse a Smell Test
Sam Favate
Tue, 04 Oct 2011 16:26:45 GMT
