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Students should know their rights, attempt to cooperate to avoid trouble with drinking

by LAURA McCRYSTAL | Friday, August 27, 2010

As the school year begins and students attend off-campus parties, local lawyers’ advice is to understand not only the law, but also the value of cooperative behavior in encounters with police officers.

Notre Dame Law School graduate Rudy Monterrosa said it is crucial for students to know the law. He practices law in South Bend and has experience defending students charged with alcohol-related offenses.

“I do believe that it’s an issue that students do need to be aware of what their rights are and what they can and cannot do,” he said.

Underage consumption of alcohol by a person under the age of 21 in Indiana is a Class C misdemeanor and an arrestable offense, said attorney Michael Tuszynski, of Stanley, Tuzynski & Associates in South Bend. Underage students who are stopped by police officers are often issued citations, Tuszynski said, which are also known as proxy arrests. In these cases, the offender is released based on a promise to appear in court when summoned.

The decision whether to arrest or issue a citation is at the discretion of an individual police officer in each situation, although cooperation with the police can work to a student’s advantage, Tuszynski said.

“A little bit of civility can go a long way,” he said.  

In the state of Indiana, both the Indiana State Excise Police and city police can respond to situations involving alcohol. According to the state of Indiana’s website, the Excise Police are the law enforcement division of the state’s Alcohol and Tobacco Commission.

“South Bend Police, they’re in charge of enforcing the laws here in the city of South Bend,” Monterrosa said. “Excise police specifically target certain types of violations.”

City police typically would respond to a dispatch call such as a noise complaint about a party, Monterrosa said. They can issue citations, make arrests and also call in a unit of Excise Police.

When either South Bend or Excise Police arrive at the site of a party, Tuszynski said a warrant is typically required to enter a home.

“The home is sacred under the Fourth Amendment as well as Article 1, Section 11 of the Indiana Constitution,” he said.

If a police officer knocks at a door, asks to enter and is granted permission, Tuszynski said the requirement for a warrant is waived. There are also exigent circumstances, which he said allow officers to enter a property without this permission. One such example would be a situation in which a person fled police by entering a home.

“It’s extremely fact specific,” Tuszynski said.

Monterrosa said if police knock on a door and see what appears to be criminal activity, such as very young people drinking alcohol, they have the right to investigate the situation.

Once inside a residence, police officers may ask students for their identification and request they take a breathalyzer test, Monterrosa said. Students may refuse this test, but it is more likely they will be arrested if they do so. Without a breathalyzer result, there is no evidence the student was drinking. This lack of evidence makes it extremely difficult to charge the student with a misdemeanor, but they will likely be booked into jail.

“And that’s the catch-22 that you’re in,” Monterrosa said. “Between a rock and a hard place.”

If students take the breathalyzer test, Monterrosa said it is still a police officer’s discretion whether to arrest or issue a citation.

“I would tell you that typically I don’t see too many people getting arrested for minor consuming,” he said.

Tuszynski said students who are arrested must both post a bond and test below a certain blood alcohol level before they are released.

Students who are on public property, such as a sidewalk, Monterrosa said, may be approached by police officers. In these cases, reasonable suspicion of underage consumption of alcohol is required for a breathalyzer test.

“They call it a walk and talk,” he said. “In talking to them if they get any other information of a crime being committed then they can follow through with that. So an officer can go up to you and talk to you, but I’d say that they need to have at least reasonable suspicion that some criminal activity is going on.”

Once students have either been released from jail or issued citations, they will receive a court summons in the mail, which makes it crucial that students provide police officers with correct and current addresses, Monterrosa said.

Tuszynski said prosecutors will file formal charges, and cases are then resolved in one of three different ways: trial, plea or dismissal. There is also the opportunity for a pre-trial diversion program, which would involve a fine, community service hours and potentially other conditions. There is no criminal conviction associated with this program.

Monterrosa said the pre-trial diversion program is a preferable option for students because the case never goes to court. They can qualify for it if they have no past convictions.

“By no means should they ever proceed with a criminal case,” he said. “Especially if you’re at Notre Dame or you’re at Saint Mary’s, you’ve already worked that hard to get to that point.

“But I think that it’s very best to have misdemeanor conviction avoided at all costs.”

If the pre-trial diversion program is completed, Tuszynski said it is important to understand the charges are never erased from a person’s record. When graduate schools or employers ask students if they have been charged with a crime, students must answer yes. These charges would also surface if a background check is run on a student who had completed a pre-trial diversion program.

Monterrosa said any traces of a charge may be erased through expungement, which can be done with the help of a lawyer, but is not necessary. Graduate schools and employers would only be truly concerned with whether an applicant had been convicted of a crime, he said.

Regarding students over the age of 21 who host parties where alcohol may be served to minors, Tuszynski said the same legal process would apply. Posting a sign at a party forbidding drinking under the age of 21 might factor into the situation, but it would not protect the student hosts.

“I certainly wouldn’t rely on that,” he said. “When you have a party and you serve alcohol, you really kind of put yourself in peril.”

While Monterrosa said it is easier said than done, the only way to avoid encounters with the police is to avoid minor consumption, public intoxication or hosting parties at which underage students are present. Once a student is in a situation with the police, he said it is most important to be cooperative because the final outcome is left to police discretion.

“Certain things are going to happen depending on whether you cooperate or not with law enforcement,” he said.

According to Monterrosa, students also need to understand that they are a part of the city of South Bend.

“I have to say if somebody’s having a party just keep it low key and keep it inside the house, but I guess it’s easier said than done,” he said. “I think people just need to be aware of what the laws are.”