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Officer Sniffing Partygoer's Breath Triggers Miranda Warnings

The Appellate Division of our State Superior Court recently held that when a police officer sniffs the breath of an individual who is under the legal age to purchase or consume alcohol, this amounts to custodial questioning, such that the so-called Miranda warnings should be administered.  If the Miranda warnings are not administered in such a case, any admission as to consumption of alcohol should be suppressed, and the case should likely being dismissed.

In State v. Koch, police responded to a private home after receiving complaints from a neighbor concerning youths smoking marijuana and acting disorderly.  Although many of the partygoers fled, the investigating officer detained approximately 40 to 50 people.  He lined them up and sniffed each one's breath to detect for the odor of alcohol.  The defendant purportedly blurted out that he had consumed a beer as the officer was approaching him.  He was subsequently issued a summons for underage drinking. 

Although he was convicted of the charge in Municipal Court, which was affirmed in Superior Court, the Appellate Division reversed the conviction based upon the United States Supreme Court's decision in Miranda v. Arizona, which held that individuals in police custody or the equivalent of custody who are subject to interrogation must be read certain rights.  Among these rights are the right to remain silent, as well as the right to have an attorney present during questioning.  The Appellate Court in Koch held that the officer's detaining of the partygoers and sniffing their breath amounted to a form of implied questioning as to underage consumption in a custodial setting.  The Court noted that custodial interrogation consists not only of express questioning, but also of words and actions that the police should know are reasonably likely to elicit incriminating responses. 

That would now appear include detaining someone and sniffing that person's breath as a predicate to charging him or her with underage drinking.

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