Legal Question in Criminal Law in Minnesota

A government demand for a sample of bodily fluid, or breath, is a search. The law of searches applies. College students face this problem regularly. Almost all of the time, police will cite "consent" as the legal justification for the search, i.e. portable breath test (PBT) sample. What is a student to do? Refuse to consent. Refuse to blow. There is no legal requirement to do so unless driving or certain situations where using or possessing firearms (i.e. hunting).

Another frequently asked question is "can police cite me for underage consumption even if I don't blow into a PBT?" The answer is yes, but the charge would be weaker. What other evidence could they use? The odor of an alcoholic beverage. And, in the vast majority of cases, a verbal admission. The remedy to the latter is "do not lie, and do not answer incriminating questions, at all."

As Mr. Gallagher states, any demand by police for samples of bodily fluid, or breath, would constitute a search. As a result, the fifth amendment right to be free from unreasonable compelled searches applies. Under the law, a search requires a warrant or it must fall within one of the accepted exceptions to a warrant.

With respect to college students, an officer may request a breath sample if they believe that an underage person has consumed alcohol. if the student provides a sample, they have consented and it is not a search compelled by the officer without a warrant.