The blue and red police lights are flashing through a window at a campus party. Do you know what to do?
Students should know their rights and the law, said David Fidanque, executive director of the American Civil Liberties Union of Oregon.
“It’s one thing to cooperate with police. It’s another to give them the keys to lock you up,” Fidanque said. “Knowing what the law is helps keep you out of trouble.”
The Emerald spoke to two Eugene Police Department sergeants and Fidanque, to clarify some common party and police myths:
-FALSE: A Breathalyzer needs downtime before being used on someone else.
Eugene police Sgt. Mark Montes said the machine purges itself before and after each test. When it restarts, officers enter their identification information into the machine, and it goes through a cleaning and testing mode.
“In theory, you could have people lined up out the door, and as long as we followed protocol, the reading would be accurate,” Montes said. “If there was some type of problem, there is a display screen that would show any error codes.”
EPD Sgt. Eric Klinko said the machines run through an internal calibration to detect any foreign substances. If detected, “the machine, by default, will not allow the person to give a sample.”
“It takes time to run the test after the previous sample, and if it’s not ready, it won’t proceed,” Klinko said. He added that there isn’t a set time between each test.
-TRUE: Putting a coin in your mouth before blowing into a Breathalyzer will produce an inaccurate reading.
“There are a lot of different substances that could impact the Breathalyzer sample,” Klinko said. “One of the things that the machine does is try to detect any foreign or abnormal substances.”
Before giving the test, officers ask subjects to take anything out of their mouth. Officers also inspect the interior of the mouth before giving the test. An EPD officer tried running the test on a man last week, but he put a nickel in his mouth. The subject put the nickel in his mouth again despite the officer requesting otherwise. He was charged with tampering with physical evidence (the breath sample).
“It’s the first time I’ve ever seen something like that,” Klinko said. “Anything you put in your mouth that is foreign has the potential to affect the test, but the machine is very good at picking up those substances.”
-TRUE: An officer can search a car during a routine traffic stop under certain circumstances.
“In a traffic stop, the officer can ask permission to search a vehicle, but if the driver and passenger refuse to give permission the officer can only search if he or she has probable cause,” ACLU’s Fidanque said.
Klinko said asking for consent is the tried and true method for searching a vehicle.
“It may be because they have nothing to hide, it might be because they don’t know the law, or it might be because they think the officer will let them off if they allow the search,” Klinko said.
The motor vehicle exception also allows an officer to search a vehicle without a warrant if the officer has probable cause, Klinko said. Probable cause would include contraband or evidence in the vehicle in plain view.
“It’s open to scrutiny,” Klinko said. “Ultimately, a judge might not agree that the officer had probable cause and will throw out any evidence in court.”
Montes said that officers could also gain information during conversations with the subject.
“You’d be surprised at the information that people voluntarily give up just in conversation about their insurance, license or about the violation,” he said.
Officers also write an inventory list if a vehicle is impounded to recover valuable items to the owner.
“We want to make sure that if there’s something in the vehicle worth a substantial amount of money, that it isn’t lost or stolen during transit to the impound yard,” Montes said.
He added that officers don’t try to search everyone that gets pulled over.
“You don’t just ask everybody you pull over on a traffic stop to search the vehicle,” he said.
-FALSE: If you put an alcoholic beverage in a brown bag or put the cap back on the bottle or can, you aren’t violating open container laws.
“At one point in time, a judge’s opinion was that if the lid or the cap was back on the container, that it wasn’t an open container violation,” Montes said.
However, that no longer applies, he said.
“If you have your 40-ounce bottle of beer and put the cap back on, technically, you have an open container,” Montes said.
Oregon Revised Statue 4.190 says “consumption of alcoholic liquor or possession of an open alcoholic beverage container is prohibited in all public places and all private property extended to the public for use.”
If an officer sees someone put an alcoholic beverage in a bag, it would also be a violation, Klinko said. In Eugene, this violation could end with a stay in jail.
-FALSE: If you place a “No Minors” sign on the door of a party, you won’t be held liable.
“If you’re the homeowner, then it’s your responsibility that you make sure persons under 21 aren’t consuming alcohol on the premises,” Montes said.
A “No Minors” sign would be a step in the right direction but wouldn’t be 100 percent effective, Klinko said.
“If in doubt, make (party-goers) produce identification that proves they’re 21,” Klinko said. “Putting up a sign is a good step but isn’t the only thing you have to do.”
Party hosts can also take steps to deter attention to the party, Montes said.
“Keep people inside, and if you’re going to have a party, keep control of the party,” Montes said. “Don’t allow people to walk around and throw trash around, and don’t play loud stereos. It attracts the attention of the neighbors, and they’ll make calls to the police.”
Montes recommended calling neighbors before hosting a party and contacting the police if a party gets out of control.
-TRUE: If you host a party with alcoholic beverages and someone drives home under the influence, you could be held responsible.
Montes said it’s possible that a person who leaves a residence, bar or restaurant and is charged with a DUI or gets in a vehicle collision can potentially hold the party host liable. These cases are typically handled in civil courts.
“We typically don’t get involved in that, but it’s something to consider nowadays,” Montes said. “You hear about quite a few of these lawsuits now. If you establish that someone knowingly provided alcohol to someone obviously intoxicated or underage, people will point the finger of responsibility somewhere.”
Klinko said party hosts should be aware of the amount of alcohol they serve guests.
“If you hosted the party where this person got smashed, and they got into a motor vehicle collision, I can pretty much guarantee that person would be named in any kind of litigation,” Klinko said.
-FALSE: Officers cannot enter a residence during a party.
Officers can enter a household based on various circumstances, including if they suspect minors are drinking, are in pursuit or observe destruction of evidence. Montes said officers also become suspicious when people don’t answer the door or stand outside for long periods of time.
Residents can voice concern to an officer entering a household, Klinko said. Officers need probable cause to enter the house.
“Depending on current case law, the pendulum swings either way,” Klinko said. “What today might be deemed as a fair and reasonable circumstance might not be 10 years from now.”
“Tomorrow? Who knows? The court will continue to rule on this on a case-by-case basis,” he said.
Officers can also enter a household if they are on a “hot or fresh pursuit,” Klinko said. If officers chase a subject who is drinking an alcoholic beverage into a house, officers can enter the residence to take the subject into custody.
-FALSE: Officers ask a possible drunk driver to say the alphabet backward for en
tertainment during a traffic stop.
Klinko said officers won’t typically ask subjects to do this test. Officers usually stick to tried-and-true standardized tests to determine a subject’s level of impairment, including “the one-legged stand” and a horizontal eye test.
But saying the alphabet backwards is an approved test, Klinko said.
“Saying it backwards isn’t very compelling evidence in the court of law,” Klinko said. “I really hope officers aren’t asking everyone to say their ABC’s backwards, because I don’t know many people who could.”
Montes said officers will sometimes use different tests based on abilities.
“If an individual has a hand-coordination problem, you can’t have them count fingers,” Montes said. “If you’re dealing with someone who has limited English, you wouldn’t do a verbal test.”
-TRUE: If someone places an alcoholic beverage in a sealed manila envelope, he or she is not clear of open container violations.
“If we see someone walking down the street, and they’ve got a can of Coors Light, and they pull out the handy-dandy manila envelope, that’s not going to work,” Klinko said.
The envelope, however, would be considered a sealed container if an officer walked into a residence and the envelope was already sealed, Klinko said.
“It’s not considered open, but there is no, ‘Hey, I got it sealed before you contacted me.’ It doesn’t work that way.”
The officer could write a search warrant for the envelope and seize it, Klinko said. In this case, officers would also observe the subject for signs of consuming an alcoholic beverage.
Contact the crime, health and safety reporter at [email protected]