Source: Central Michigan Life
Author: Jake Bolitho
Editor’s Note: Senior Reporter Jake Bolitho sat down with local attorney Todd Levitt to talk about student’s legal rights, including alcohol and privacy issues.
Jake Bolitho: What exactly is defined as open intoxicant?
Todd Levitt: Open intoxicant is being in public with an open container of alcohol. It doesn’t necessarily have to be a can of beer or a bottle of beer — it can be in a glass. It’s somewhere out in the public domain with alcohol present.
JB: With that being said, what is defined as “public?” Can it be as simple as just standing on a sidewalk in front of your house?
TL: If you’re on the sidewalk with a can of beer, even if there’s a couple drops in it, that’s open intoxicants. You can be in a motor vehicle and, quite often, people are charged with open intoxicants in a motor vehicle as passengers and as drivers. Here’s an example: there’s four people in a motor vehicle and there’s one beer in that car. All four of those people could be charged with open intoxicants… if you’re inside your house drinking a beer, that’s not open intoxicants.
JB: If a police officer asks a student to submit to a breathalyzer test, can they choose not to?
TL: There was actually a case law that resulted from something that occurred here on the campus. Police officers were randomly approaching students with no justification or probable cause and asking them to submit to breathalyzers. That’s an invasion of your (privacy)… any time you intrude into someone’s privacy, you have to have a warrant for that.
JB: What if someone is pulled over on the road? Do the same rules regarding breathalyzers and warrants
work in that situation too?
TL: No because, at that point, the officer has already done enough investigation to justify them asking you to submit to a breathalyzer. Based on all their observations (and) the sobriety test, they can justify that.
JB: Let’s say someone is holding a nuisance party and the police show up at the door. Does that person have to let them in?
TL: I think people have a right in their private residence to have more than five, 10, 15 or even 20 people over and it should not be considered a nuisance. In defense of the local law enforcement, quite often, they’ll give the homeowner a warning… More often than not, a police officer has to be invited into the residence. There’s a couple exceptions: one, they have a search warrant. If somebody is being injured or there’s a violent crime taking place, then they have a right to protect the public and that could be an exception to the search warrant.
JB: Sometimes the acronym for drunk driving appears as OWI instead of DUI. Is there any difference?
TL: The actual statute, as written, is OWI. It’s operating while intoxicated or operating while impaired. Most people use the term DUI but, as it’s written, it’s OWI.
JB: Let’s say a CMU police officer is driving along Bellows Street at the very northernmost part of campus, and he sees someone just a little ways off-campus on Main Street, urinating in public. Can that officer turn north onto Main and cite that individual, even though it’s not technically part of their jurisdiction?
TL: I would say they could. What could happen is, they could approach the individual and then call in the city police to come and finish the stop. My feeling is they have a right to do that. It goes back to a crime being committed in their presence. They have a right to investigate and to pursue that action. But quite often, they’ll contact the jurisdiction in which the crime is taking place and they may take over the case from that point on.
JB: How would you define indecent exposure? It can be very obvious but, in some cases, somewhat debatable.
TL: Basically, I would define it as exposing a part of your body where society considers it taboo. We have accepted standards of decency. So you’ve gotta ask yourself — if you expose a certain part of your body, is that against accepted standards of decency in the community? So if a guy takes his shirt off, that’s not indecent exposure. If a girl takes her shirt off — indecent exposure. I think anything below the waist — indecent exposure. Someone urinating in public could be seen as indecent exposure. I would sum it up as contrary to local commonly accepted standards of decency.
JB: What’s your take on illegal downloading and its criminal severity? The vast majority of people who do it get away with it, after all.
TL: There’s recent cases where the defendant was fined upwards of $22,000 (a song) for illegal downloading. We’re talking large sums of money. I would highly recommend that if someone is illegally downloading out there, they should stop. The record companies have lost billions of dollars because of it. You don’t want to take that chance.
JB: Do you find that you win a lot of cases involving speeding tickets?
TL: No. Downstate, when I practiced for 12 years (in metro Detroit), quite often someone received a two-point ticket or four-point ticket. Prosecutors and law enforcement seemed willing to reduce the points as long as the fine was paid. But up here, I find that law enforcement isn’t as generous with reducing speeding tickets. I’m not saying it doesn’t happen, but my experience is you can’t win.
JB: Oftentimes, if a driver gets into an accident during bad weather, they will receive a speeding ticket when the police show up. They may have been driving well below the posted limit, but the officer still just assumes they were driving too fast for conditions. Can patrol officers technically assume that, even without an actual number on their radar gun?
TL: Yeah, they’ll take a look at the totality of the circumstances. They’ll take a look at the type of weather, they’ll take a look at any tire marks. They’ll do an investigation and, based on their experience and their judgment, you could very easily receive a ticket for too fast for conditions or careless or reckless driving… In fact, if you’re in an accident like that and an officer writes you a ticket, it’s going to show up on your driving record that you were involved in an accident. Nobody was injured, but it shows up. More often than not, you get ticketed.
JB: Are there any exceptions at all to the MIP law (other than religious ceremonies)? What if you’re in a private residence with your family and you have just a small amount to drink with them?
TL: Here’s the law straight — there are no exceptions. If you’re under 21 and you’re drinking anywhere, with family, at a party or private residence, that’s minor in consumption (or) minor in possession. The law is very clear on that, you can’t be drinking at all, period… The big issue on campus with students and the police is where a student is not necessarily holding any alcohol on their person, but they appear to be intoxicated and they’re acting intoxicated and an officer approaches them. An officer does have a right to question them under those circumstances. Quite often, what will happen is the officer will just ask a question: have you been drinking? And if you say yes, you can be written up for that. Your behavior and your statement alone can convict you of that crime… Here’s the problem. If you appear to look like you’re under 21, now (the police officer) will approach you and ask you if you’ve been drinking. My argument is how does somebody look under 21? What if there is someone who is 23 that just looks young? That gives you a right to approach that person and ask them if they’ve been drinking?