Sober blow? Controversy erupts after student gets breathalyzed

An allegation of drinking some spiked lemonade at Western Albemarle High School led to a 10th grade girl getting pulled out of class and forced to take an on-campus, police-administered breathalyzer test. With the test allegedly finding no trace of alcohol, a Charlottesville-based civil rights organization contends that the school trampled the student's Fourth Amendment protection against unreasonable searches.

"That's not a good idea if you want to protect freedom," says John Whitehead, president of the Rutherford Institute. "It's a good idea if you want a police state."

According to the Institute, the controversy began on March 10 when two unidentified students told a teacher that the sophomore was drinking alcohol. The teacher allegedly informed Associate Principal Greg Domecq, who observed the girl during lunch but allegedly told her father that she "seemed fine" with no indications of impairment.

What's not in dispute is that Domecq had the teen removed from class and taken to a room where an Albemarle police officer was waiting to administer the breathalyzer.

The Fourth Amendment requires a reasonable suspicion of criminal activity. For underage drinking at school, that might include stumbling or slurred words, Whitehead suggests. Without probable cause, all students become suspects, says Whitehead whose organization has recently uncovered a spate of what it sees as zero-tolerance abuses, including suspensions for possessing oregano (drugs) and spitwads (weapons).

"Albemarle County Public Schools have a duty to provide for the safety of students in our care," responds county schools spokesperson Maury Brown. "Information related to a student possibly being under the influence of drugs and/or alcohol must be taken seriously."

Brown says administrators believe Domecq acted responsibly based on credible information provided to him and that the Rutherford account was inaccurate in "multiple" areas. But she declines to specify anything that was inaccurate.

Albemarle Schools do not have a breathalyzer policy, but the alcohol test is a viable option, says Brown, pointing to the 17-page student conduct handbook. However, it appears the guidelines may not have been followed:

In the section on dealing with students believed to have illicit substances: "Every effort should be made to have the parent or guardian come to the school before action is taken beyond the preliminary phase of the principal's investigation."

While Brown was unable to say whether any punishment was meted to the students who made the apparently inaccurate claim, the breathalyzed girl was embarrassed, now branded "the girl who was breathalyzed by a police officer," according to a letter from the victim's mother to the Albemarle School Board.

"The girls' false accusations constituted bullying and slander, and caused serious distress to my adolescent daughter and her reputation," says the mother. The teen and her family did not return phone calls from the Hook, which is not identifying the minor student.

The parents join the Rutherford Institute in demanding public apologies from the two girls who made the allegation, from the teacher who passed it along, and from Domecq for going forward with the breath test. The parents also seek a clear-cut policy on future alcohol accusations "so that innocent children aren't traumatized by having their guilt assumed without evidence."

With so much emphasis on bullying prevention, the mother writes, "Western Albemarle High School proved to be far from a safe school for my daughter."

Whitehead offers to help the school system draft a breathalyzer policy, and he also wants the student's record wiped clean.

"The slightest hiccup and she can't get into the college she wants," says Whitehead. "The schools are not taking into account the long-term effect on kids."

93 comments

Welcome to 2011. Where everybody is guilty until they prove their innocence.

Domecq (and the cop) are very lucky it wasn't my child involved in their little revolt against constitutional rights. I would have my attorney drafting the paperwork already.

Typical this cop-hater would be the first poster. The Whitehead "institute" is a joke.

The Teacher owes no one an apology. The teacher did his or her JOB exactly as they were supposed to. If this were the case of a drunk student and a teacher ignored the information the teacher would be liable for negligence.

The School has the right and responsibility to protect all the students. So long as the school was reasonably discreet and professional no ones rights were violated. If the police officer followed the same protocol as he would if he was informed of a possible drunk teenager on the downtown mall then he did his job also. The courts have rules that that are limits to your rights once you are in the care and custody of the school (local parentis)

Get over it. What percentage of the kids in our high school are alcoholics? It isn't ZERO.

This is an internal matter, not a constituional one. If the parents don't like it complain to the School board. If they still don't like it vote at the next school board election.

I agree that there should be no record kept and that since it came up negative the students who reported it should be questioned as to their motivation.

If the students don't like rules they are free to get an education and send their kids to private school.

I agree with one comment made in the BM post above- not one single voter in Albemarle County should vote for anyone on the school board who supports a forced breathalyzer on a student, without prior parental notification, while that student is under the care of the school. If I was this child's parent, I would be outraged.

"This is an internal matter, not a constitutional one."

Baloney. Your rights don't end at the schoolroom door. If there wasn't reasonable suspicion for the search, I'd say that the kid has a good case.

Go ahead and call The Rutherford Institute a joke - until your rights or your children's rights are violated. Your viewpoint will miraculously change.

If you think your children have constitutional rights against unreasonable search and seizure you can forget it RIGHT now. Not that I support this lack of rights, but just as a statement of fact they do NOT exist. Minors (myself recently being excluded from that group thank god) have little fragments of constitutional rights which only see the light of day in their government classes.

Notice no one is saying thank you to western for trying to stop underage drinking just don't tread on my constitutional rights. Now if there was drinking the same people would be on the schools about not stopping drinking in schools. The bottom line is to not have drinking in the schools; lets remember that!

Bill Marshall, nobody associated with the school or the cop shoppe had better do anything to my child until they notify me first. This is clearly the school's policy, and they (or the cop shoppe) violated their own policy. One school resource officer has already been tossed out of the schools for walking all over the constitutional rights of our children, sounds like they need to boot a few more out now. (I think some of you are forgetting the unlawful strip search performed on a student not long ago, another example of their doing as they darn well please)

And Mr/Mrs/Miss Gasbag blah blah, get over it. If I were to place blame here, 80% would go to Domecq, and 20% to the cop shoppe. Perhaps they all need to carry a copy of the school's policy in their front pocket for quick reference in regards to parents being notified immediately.

When the second reply in a thread suggests that I am a cop hater, I have strong suspicions they are probably aware of the fact that I was not produced before a magistrate "forthwith" once, as the state code requires. I was held on a false arrest charge for 6 to 7 hours and the judge asked the cop shoppe to please explain why. They had no explanation for violating the state code other than wanting to trample all over my lawful rights and thinking they could do as they please. Doesn't seem like newly appointed Chief Sellers is straightening out this department as quickly as he needs to or as quickly as he promised to, IMHO. I would love to know what he has to say about this entire mess, but we'll never hear it of course. He'll sit on the sidelines and ignore it while hoping nobody will come forth and ask him.

That cop is an idiot. Just because some teacher tells you something, you need to investigate the matter further. Obviously she did not reek of alcohol display any other signs of drinking. The cop should have stated he had no PC to do the breathalyzer test, and refused. If the school still had an issue they should have called the parents. I would own that school if they did that to my kid. My kids know already, don't talk to cops without me or an attorney no matter what.

The child was not "forced" to take a breathalizer by the school they were instructed by an officer of the law. The School at that point was out of it.

The words of two students , unless their credibility is flawed is more than enough reasonable suspicion to investigate further.

The School in fact had an OBLIGATION to investigate or be liable for any consequences.

Suppose, that this student was let go because there was no appearnance of intoxication and she went on to walk into traffic.

Would you switch sides and defend the school?

Your little princes and princeses are drinking smoking sexting and porn surfing right under your nose. This issue isn't even CLOSE to the the tip of the iceberg.

GSOE
You have to let it go bro. They are what they are; and you "were" only in theory.

George Orwell is smiling. The baloney meter is at 100% junk. I'm so glad I do not have kids in school. I would have to home school.

There are many facts that are not available to us, therefore we should avoid taking sides. Some possibilities are that the 2 students that reported the drinking had an issue with the girl and were trying to humiliate her. Secondly, if the breathalyzer was done in private, the whole world did not need to know, thus avoiding the "public" humiliation of this girl. Maybe it could have been resolved with discussion among those involved. There is a very thin line that the school employees have to walk to do the right thing, and I think for the most part, they try to. We live in such a litigous (?sp) society today that it is hard to define that line. Yes, I agree the parents should have been called, but then again, I don't have a school handbook in front of me to know exactly what the policy is regarding this issue.

I think a lot of people who responded to this column should go back to school themselves and learn how to read critically.
The school stepped over there boundaries. It happens, there not familiar with laws. They should apologize to the family and learn from it.
"If we hear only those views of which the majority hold, then you and I are free so long as we agree with the majority".

@ Wow

It's called "there," "their" and "they're."

Time to learn the difference.

Possibly you could go back to school to learn spelling and grammar?

Just a suggestion.

While there is much information missing from this article, there are some key points that help to clarify what happened.

First, “a pair of unnamed students accused the sophomore of imbibing the illicit drink,...” Now, obviously the school administrator knew who they were. But was the accused student ever informed? Administrators like to keep that information secret, saying to do otherwise might invite reprisals.

Yet what’s also true is that by keeping the names of accusers secret, immature students involved in petty squabbles and misunderstandings are invited to escalate them without consequence. And, in fact, the breathalyzer test turned out to be negative.

School administrators have a list ofsstudent contact numbers. They might have called the parent(s). But, “the test was run without notifying the parents or allowing them to be present.” Worse (and the county schools “leadership seems to excel at this), “The girl’s parents had written to the schools about the issue, but received no response.” Why?

John Whitehead has asked “for a written assurance that the matter will be expunged from the student’s record.” That only seems fair.

In the case of New Jersey v T.L.O. (1985) the Supreme Court wrote that a student search is “permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Does an anonymous teenage accusation and a breathalyzer test fit this standard?

In the case of Vernonia School District v. Acton (1995), even conservative Supreme Court Justice Antonin Scalia noted that “In many respects, we think, testing based on "suspicion" of drug use would not be better, but worse.” Wasn’t the breathalyzer test just based on “suspicion?”

Finally, in a strong dissent in the case of Pottawatomie v. Earls (2002) Justice Ruth Ginsburg wrote the following:
“Justice Brandeis recognized the importance of teaching by example: ‘Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.’ That wisdom should guide decisionmakers in the instant case: The government is nowhere more a teacher than when it runs a public school.”

What exactly are the county schools teaching students about democratic citizenship?

CCC, I will never let it go. Not in this lifetime.

Face it, do you know anybody in a 150 mile radius who has kicked as much butt in the local courts as I have? In both criminal and civil matters!

As I said above, Domecq and the cop had better be glad this was not my daughter.

A refusal on her part to take the breathalyzer would have led to her suspension or worse.

The students parents claim humiliation...

So where did the school cross the line?

1) When the teacher relayed the accusation? NO The teacher would have been disiplined for NOT relaying it,

2) When the Administration called the student to the office to investigate? NO the school would be liable for negligence had the failed to act.

3) When they asked a person TRAINED to recognise intoxication to render an opinion? NO Again they would be liable for not making a "proper" evaluation.

4) When the officer asked her to take a breathalyzer (presumably to make it go away) NO, if he had not made the request then he would be liable for anything bad that happened.

If she had refused, they would not have expelled her, they would have gotten the parents involved and gone from there.

The only part of this entire event that is even in debate is the actual breathalyzer, Bringing her in for an initail evaluation was mandatory protocol. The only people that KNEW about the breathalyzer were the student, the Administrator and the Police, So who SQUEALED? Did they announce it over the PA? Did it get twittered by the guidance counseler? Did the Police issue a press release?

The only reason the entire world knows about it is because the parents think that their childs blush factor overides protecting the entire student body of her school.

I imagine that now she will be known as the kid whos parents embarrased her in front of the entire county. Hopefully the embarrassment won't drive her to drink.

I agree that the fact that this student was sober should definitely be expunged from her record!!!

As if the school would send this fact to colleges as part of the transcript.

Some people really like getting attention. The Hook should start ignoring these mini-mountains that the Rutherford Institute tries to create out of these anthills. It erodes the hook's credibility to print stories about minor incidents that are not stories at all.

It also is tedious and boring, two traits to which no media outlet should aspire.

bill marshall, do you honestly believe the squealers hadn't broadcast the trouble they had caused this girl all over the school in short order? It was obviously a false report, kids playing games. There were probably 10,000 text messages generated back and forth amongst the students alone. Nothing of this sort is kept secret between the school administrators, the cop and the parents. Everybody in the school probably knew about this before the day was over. And the students who didn't know about it by day's end, they knew about it before the next morning. My niece sent me a text message over a month ago asking if the cop and school administrators could do what they did. I had no idea the text message was in reference to this case. So basically, I myself knew about it before the day was over.

Read the constitution. The school has no right to unreasonable search and seizure, regardless of what is in the student handbook. This is not, and hopefully never will be a police state. Giving up ANY rights for ANY reason creates a slippery slope that I for one am not interested in testing.

omgitspaul, I think that's the point of this story. The constitution means nothing to the Albemarle County School System or the Albemarle County Police Department. It's been this way ever since the police department was formed in the early 1980s. There were a lot less problems back when George Bailey and his Sheriff's Department handled law enforcement in Albemarle County.

If a student is falsely accused then there is a disciplinary procedure and even civil recourse. If the students that reported the allegation had a reasonable belief that it was true then they did nothing wrong and in fact did something right.

If a Police officer pulls you over and gives you a brethalyzer on a public street and you blow a zero then you are still publically "humiliated" without recourse. Your rights are not violated and life goes on.

If there is a reasonable belief that she consumed alcohol then her rights were not violated either. A breathalzer is not a cavity search. It is less intrusive then a TSA pat down or even a pat down to go into JPJ arena.

The only rights that were possibly violated were the parents not being notified that their child did nothing wrong and was back in class.

There is nothing unreasonable about the school having rules to keep order. If you don't like them recall the school board.

Breezy dont see how dis girl humiliated, mane. She wuz given da test an pass it - drinkin or not, she should wear dat lik a badge of honor - nuttin to be ashame of. School procedure def need a review, but I dont buy da mom claim of "distress"...

Wat dis girl should do is parlay dis story into dat college entrance essay - if dat wuz me itd be wrap mane, dem big colleges wud luv ya boi's story an Id be in no prob - even quote da Gasbag in my story mane!! Dey be eatin outcha boi hand on dat one, LOL!

If the only reason an officer pulls you over and gives you a breathalyzer test is that a neighbor, who doesn't like you called it in, that's ok? So, as an individual you only get the rights that your neighbor or a "concerned" student afford you? I believe we are presumed innocent...

And you're right Tim, she has nothing to be ashamed of. It's those of us who don't stand up for her rights that should be ashamed.

gassy bag says: bill marshall, do you honestly believe the squealers hadn't broadcast the trouble they had caused this girl all over the school in short order

My point exactly.. the teacher had an obligation to report, the administration had an obligation to investigate.... that was all over the school that she was "investigated" Nobody but her the admin and the police knew about the breathalyzer until one of those three squealed. So who was it? And what part of the humiliation was caused by the breathalyzer?

She had to be pulled out of class and at least questioned... that I believe even you think is constitutional ... so that was not humiliating?

The schools have lost the tools they need to educate these children. We need to restore their ability to raise these kids, after all these kids are the ones who are going to have to work to pay back the debt we are incurring not educating the current kids because they think they have no responsibilites other than to go to sports games and play with their iphones.

I cartainly am glad we have the courts, judges and juries to decide what constitutes a wrongful act and what doesn't. The thought patterns of some of you people are just plain downright scary.

In an emergency situation, I doubt there were many parents in Albemarle County that could not have been to the school within 20 to 30 minutes. Call the parent, tell the parent what is going on, and allow the parent to attend the investigation and breath test of a 15-year-old juvenile. It's that simple folks. And that my friends is the way it used to be done before the constitution was viewed as nothing more than the cartoons in the Sunday newspaper.

People do tell lies to get try and get other people in trouble. This may be what happened here, an adolescent feud. The school should have not have been in a rush to get the police involved solely on that basis. They should have investigated the accusation themselves, and if the girl showed no evidence of alcohol consumption(breath, unsteady walk, slurred words,etc) it should have ended there.
Another case of "guilty until proven innocent."

Bill Marshall, we will have to agree that we continue to disagree. Having had my constitutional rights violated several times by rogue cops, these rights are even more sacred to me now. But, let there be no mistake, the entire country lost control of our youth when the government ruled that a parent couldn't pull out a leather belt and discipline a child. (The same leather belt should be used on the kids who filed this false claim against the girl in question!!)

Hollow Boy, you hit the nail on the head! In addition to your well thought out suggestion, they needed to call the parents and let them get involved immediately, let the parents at least be present when law enforcement is dealing with a juvenile.

Yeah...do we want the school system to raise our children or educate them? I'll do the raising, thank you. Perhaps if the schools focused on education they wouldn't have so many budget woes. Bad rules and policies are created everyday. We don't have to blindly follow them.

And whos children do you speak of when you say they only want to play sports and chat on their iphones? Not mine and not many I know. Perhaps that could be addressed closer to home as well?

As I cited earlier, the Supreme Court decision in New Jersey v. T.L.O. (1985) has relevance to this particular incident at Western Albemarle. In the T.L.O. case a student was "caught" smoking in a school bathroom against school rules (she denied it while another classmate, also caught, admitted to it). An assistant principal searched her purse and found cigarettes and matches. Searching further, he also found some marijuana, a pipe, and some other items indicating T.L.O. had been selling marijuana. T.L.O. challenged the legality of the search.

The essence of the T.L.O. decision is outlined below:

"...the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult."

"How...should we strike the balance between the schoolchild's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment."

"...the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception"; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place..."

**And here is the crux of the decision, and also what lies at the center of the Western breathalyzer search:

(1) "...a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."

(2) "Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

So, the questions are (a) were there "reasonable grounds for suspecting" that the student was or had violated school rules? and (b) were the "measures adopted [the breathalyzer] reasonably related to the objectives of the search?" and (c) was the breathalyzer "excessively intrusive in light of the age and sex of the student and the nature of the infraction?"

UVery similar to the Stafford Arizona School District several years ago stripped search a thirteen year old girl because her 'classmates' told the principle that she had drugs in her possession. Well, the search proved no drugs found. The school didn't notify the parents. That case went all the way to the US Supreme court. The school District was slapped with a very large monetary (in the millions) law suit. I hope the parents in this present case continues with a similar law suit.

Right on Al...

This is the same "Supreme Court" that upheld the "Patriot Act"? Wink wink, watch our civil rights being slowly eroded away. We all know right from wrong. This clearly falls under the heading of "If you can't wow them with the law (spelled Constitution), baffle them with BS".

Apparently, the student had no outward signs of having consumed alcohol and the only "evidence" was the accusation of another student. The police should have recognized that immediately. That clearly is not evidence. Legal or not, it's lousy judgement. Again, bad law and worse policy is made everyday

To those who think the the School overstepped its RIGHTS as the adults reponsible for children in its care... would the constitutin have been violated if she blew a .12 and was just holding her liquor well? Would the Breathalizer have been thrown out?

What would you be saying if they had sent her back to class and it turns out she was drunk and slipped down the stairs and died?

THAT would be a lawsuit.

You are assuming it was a feud. Maybe the people who reported it were of the belief that something did happen. Maybe they have that belief because they have seen it before. There are a lot of unknowns here.

I am sure that in the future the school will call ther parents, but if the parents refuse permission for the breath test the School would be within its rights (and responsibilites) to withold the child from class and keep her under observation for a while to make sure.

If they had called my parents, my father would have asked to speak to me, asked me if I had drank anything, and when I said no, he would have instructed the school to give me the test and send me back to class if I passed and call him to come get me if I failed.

I am unafraid of proving my innocence if I believe that it is not a "fishing" expedition.

The student had no reason to believe that the teacher, administration or police had any bad intentions.

Here are some of the kinds of people modern schools have to deal with...
watch it and weep... http://www.liveleak.com/view?i=ec0_1303444048

@Tim Taylor: Those are the best thoughts expressed in the 37 (I think) comments so far. Can you imagine the outrage that would be expressed on this 'board' if this young person 'had' been intoxicated and had driven a vehicle and had injured or killed someone. (Yes, I realize the young person was just a sophomore and maybe doesn't drive yet. That is not the point.)

It is refreshing to see someone here with some common sense.

nicknameoscar praises tim taylor for his "common sense." But Taylor merely engages in speculation and seems to think that he can extrapolate from what might have been a personal anecdote ("if they had called my parents...") to make reasonable and constitutional jurisprudence for the entire nation (Hint: he can't).

Taylor says "would the constitutin [sic] have been violated if she blew a .12? But she didn't, did she?
This is sloppy thinking. It's like asking "what would have happened if there hadn't been a 9/11?" But there was.

Or, it's like asking "suppose that Saddam Hussein really DID have those weapons of mass destruction? But he didn't, and we've wasted lives and tons of money and our national reputation because of manufactured, false "intelligence."

Taylor raises the speculative bar wildly by asking what if the student "was drunk and slipped down the stairs and died? But she wasn't and didn't. This is akin to having someone look at you the "wrong" way and then assaulting that person because you "feared" for your safety, and then asking something as silly as "what if that person had a knife and was going to cut me?" Please.

Finally, Taylor elides into the really scary area, where he implies that it's the citizen's role to prove his innocence. Taylor says "I am unafraid of proving my innocence if I believe that it is not a "fishing" expedition." Well, good for you Tim. But fortunately the Constitution puts the burden of proof on the government for searches (and seizures) and trials.

The 4th amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

You see, Tim, searches (and seizures) must not be "unreasonable" and must be based on "probable cause." (although that requirement is reduced in schools to "reasonable suspicion")

The 6th amendment to the Constitution reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Again, the burden of proof is on the government. Notice that the amendment starts with "the accused."

nicknameoscar opines that careless opinion, prevalent though it is, constitutes "common sense."

I'd respectfully disagree.

Common sense falls on both sides of the fence, doesn't it? There should be more to stand on than accusation when we infringe on rights. It's the reason there are grand juries. While there was reason to investigate the allegations, there was no reason whatsoever to do a breathalyzer. She wasn't intoxicated and it should have been obvious to authorities that it was a false accusation. Ifs, maybes and could've beens don't have a place in the discussion.

Just because you can do something doesn't mean you should. Common sense says go back and speak to the accusers about their lie.

Democracy, dude you are OUT THERE...

First off, two students made the accusation to a teacher that they were EYEWITNESSES to her drinking. That is about as "reasoanable cause" as you can get. So now that we crossed that threshold lets go the the next one. The breathalyzer. They asked her to provide some conclusive proof other than her "word" that she wasn't drinking. You are forgetting that it matters not whether she was "intoxicated" she is a minor and the threshold for that is ANY amount of alcohol. So the only way to prove it at the scene would be a breathlayzer. That simple fact alone MAKES it reasonable to do one. There is no other way.(Remember the school had "reasonable cause" and a responsibility to investigate)

If she was accused of having a weapon (which could be as small as a razor blade) then she would have been subject to a legal search. It would not have been reasonable for the school to simply ask her if she was hiding a weapon and take her word for it. It would not have been unreasonable to ask her to empty her pockets and walk through a medal detector without calling the parents. That is the equivalent of blowing into a breathalyzer.

Good for the School, I hope they don't back down.

@Tim Taylor...EYEWITNESSES to what? They lied. Lies are not and never will be evidence of anything except lying. You're still placing the burden of proof on the young lady. I don't think anyone is arguing that there was reason to investigate the matter.

If you are pulled over for allegedly drinking and driving, the breathalyzer is generally used to gather evidence after a field sobriety test...after there is further evidence that a crime has taken place. Even if your neighbor and his church group swear they saw you drinking, that in and of itself does not meet any burden of proof.

These rights belong to us all. Read the constitution.

I'd like to amend that statement. I shouldn't assume they lied. We don't know if this was the result of a personal feud or not and probably never will. That doesn't excuse the lack of evidence. The "investigation" should have come to a close as soon as the accusation was shown to be false.

Tim Taylor, the video link you posted is from a McDonalds restaurant, not a school.

omgitspaul, Tim says he has no problem with proving his innocence. The constitution therefore means nothing to him. There's no use arguing with people who have no interest in seeing their constitutional rights upheld. They are the sheepel that's causing this "guilty until proven innocent" problem nationwide in the first place. Tim probably would not care if the government wanted to place a micro-chip in his hand on Monday morning.

Eyewitnesses are admissable in court. Period. The accused has the right to to question them AFTER she has been charged. Not before.

The difference between DWI and this is that she is a minor and not allowed to drink ANY ALCOHOL. Maybe the question to make your comparison work would be if a police officer has probable cause to breathalyze a 16 year old when there are TWO eyewitnsses that attest to seeing her consume alcohol. Also, I wonder if the breathalyzer would be thrown out if an officer pulled someone over after being told by two eyewitnesses and breathalyzed them even if they passed the initail alphabet and walkng a strait line test. I know it is legal if the officer finds an empty bottle in the car or smells alcohol IN THE CAR. I have seen it done.

I do not think the reasonable cause is a valid argument.They met the standard with TWO witnesses. I don't think the breathalyzer itself is in question as it is the only way to determine if ANY alcohol was consumed. (intoxication is irrelevant, it is legal to drink and drive within limits, consuming alcohol in school is not) The only valid argument is whether the parents have a right to be notified BEFORE it occurs and if they have the right to block it. If you believe that they could have legally given the test if she seemed drunk than you have no argument at all regarding the decision to breathalyze. The Officer had an allegation to investigate and the only way to investigate it was to do a breathalyzer or a blood test.

Not finding anything does not mean a search warrant was not valid and that the police violated anyones rights by seeking one.

There may be an administative decision to be made about how far they want to go to enforce the rules, but it is not a Constitutitional one.

If she were drunk I don't thnk the Judge would have tossed it on the arguments placed in this blog.

I hate the overstepping of boundaries as much as the next guy. The TSA comes to mind. This ain't it.

My windbag isn't big enough for this argument. I feel sorry for all of you who see fit to relinquish your rights so readily. Read your constitution.

Accusation does not equal evidence. Plain and (I thought) simple.

omitsitspooll,

I agree accusations do not equal evidence.

However, the do equal "reasonable cause"

Was the Teacher wrong to report it?

Was the administration wrong to investigate it at all?

Was the Administration wrong to bring in a TRAINED police officer?

Was the Officer capable of determining ANY alcohol without doing a breathalyzer?

Again, suppose there was an accusation from TWO witnesses that she had a weapon? Would the medal detector wand have been an illegal search?

Forget that she is a kid. Pretend she was a Teacher and two fellow Teachers made the report? How does that change it for you?

Is your beef because anyone was investigated at all? There is no alcohol consumption allowed on school grounds by anybody. There were two witnesses who made a report of a CRIME. The administration acted accordingly. The Police investigated with a tool at their disposal. Breathalyzers detect ANY alcohol which is a violation of the law.

YOU need to read the constitution and the case law. These kids do have special rights. The parents do not have to be present and so long as they did not threaten her (which has NOT been alleged...(and you know if they could have alleged that they would have) they can ask her questions and perform a reasonable search.

Tim Taylor, would you say this child was taken into custody by the school and cop shoppe? I think it was somewhat obvious she was not free to go on with her school work or life, and it was obvious she didn't feel she could refuse the breath test at the time.

I may be mistaken, but I believe one of the parents works at another Albemarle County school, perhaps across Rt. 250. How long would it have taken to call that parent? They could have sprinted across the road, unless Mr. D at WAHS was just trying to inflate his already rather substantial ego.

Parent is worried about the damage to her child's reputation? From what I take from this article the child was taken to a private room and administered the test. I would assume that the principal in question didn't go into the room and announce that they were testing her. So how did anyone else find out? My guess is she was the one who told people that she had been tested. They want her record wiped clean? What "record"? Since she was proven innocent what would have been put in there? Glad to hear that the girl was not drinking. But, if the parents and the Rutherford Institute wished to avoid "embarrassment" and "damage to their daughter's reputation" why would they allow her name to be published (in other publications) for the world to see?

I believe that the school has the absolute right to pull any student from any class at any time if there is "reasonable cause" I beleve that two eyewitnesses alleging seeing her drink alcohol constitutes "reasonable cause". I believe that had she asked, the school was within its rights (and responsibilities) to inform her that failure to take the test would mean that they would have to contact the parents and ask them to come pick her up while they investigated the allegationsfurther (which would mean interviewing the witnesses. Imagine if surprise they had a video of it or pointed them to the can she drank from. ( I am only speaking hypotheitcally now)

The fact that the witnesses were mistaken does not mean that her rights were violated. People are pulled in for questioning everyday on less than what this girl was. As a society we have to accept that mistakes happen and that best is best. So long as people are treated with respect it is all ok. If she was given the choice of taking the breathalyer and proving there was no alcohol than that is no different than an officer asking a motorist to take one on the side of the road because the alphabet test was inconclusive. There was no way the officer could ascertain alcohol use by talking to her unless she was intoxicated. Intoxication was not the issue. Consuming alcohol at School was. That means ANY trace would be proof. (Which would have been the same threshold for a teacher under the same allegation)

I believe that a police officer is not obligated to tell her that she has the right to remain silent unless he has the intention of taking her into custody. (the same as a traffic stop)

Here is a link from the Daily Progress blog that explains it.

http://www.scotusblog.com/2011/03/argument-preview-youth-and-miranda-rig...

If the Police violated protocol it is an administrative issue with the police department and has nothing to do with the school. The parents do not have the right to be notified in advance. If the student had tested positive I don't think the judge would have tossed the test since the school was a witness to the event.

Gasbag, you tell me... If a police officer was accused of sipping from a bottle on the job by an eyewitness, would his Sargeant ask HIM to take a breathalyzer to see if he had drank on the job? Would he ask him to do it to clear his name? If you were accused of it would you sieze the opportunity to clear your name, knowing that if you refused, everyone would assume you were covering it up? It may seem unfair, but that is just life. If someone accused me of something I would cough up my alibi pronto. I would asume that the police were doing their job based on reasonable cause and be happy to oblige to settle the matter.

I will admit there is a line, but she was not strip searched, her locker was not searched, she was not taken to the police station and put under a lght bulb. She blew into a little machine. If her teacher asked her to blow up a ballon for science class it would amount to the same thing.

The Schools have had their hands tied behind their backs and are stuck with people like the ones who kicked that girl in the video at McDonalds on one side and helicopter parents on the other who think that they are entitled to monitor and moderate every single action the school does.

These parents should take this oppotunity to explain to their child how challenged society is, how prevalent alcohol abuse is, and how it is a civic responsibility to choose your battles very carefully. I believe that society is better protected by having the authority they currently have rather than squelching it further and allowing a loophole for functioning alcoholics to go through school and simply refuse a breathalyzer because they are not slurring their words.

Creating a policy of parental notification will hurt, not help, as parents don't want the charge on their record and will activily cover the CRIME up.

I am sorry that this girl went through this but the school did the right thing.

@ Tim , Don't you hate when that pesky Constitution gets in the way of your right leaning , Tea -Party agenda? I don't know how it could be spelled out to you any more clearly, yet you persist. I'll make it easy, They should have called her parents first!

Perhaps I was a bit shrill there, Tim, Let me retry. Two students tell a teacher, that they suspect a peer of drinking alcohol at school. The Teacher, then dutifully notifies administration. who observe the student during lunch. So far everything is fine. Next, the administrator pulls the student from her assigned leadership class and brings her to the office, or a private room where a School Resource Officer is present. Next, and here's the hard part for you, Tim, is where the students 4th amendment rights were violated. While showing no outward signs of intoxication, or behavior problems, and based on third party claims of "hearsay" evidence, the student was administered a Breathalyzer examination without having her parents notified, or being charged with a crime, and here's the most important part, Wait for it... In clear violation of her 4th amendment rights! I won't repeat the amendment for you, Tim. As a High School graduate, and American, you should have it and I repeat should have it committed to memory by now, If not, at least a pedestrian understanding of what it entails. Especially now since you have misinterpreted it so many times on this thread. Thank you for allowing me to clarify.

Dear confusedamused.

Did you read the article linked about a case before the supreme court as we speak.? The way I read it, so long as the resource teacher was there there was no violation under exisiting law.

Secondly, The students "behavior" was irrelevant. The rule is zero alcohol. not intoxication. If she would have blown even a trace she would not have been let go, she would have been charged with underage drinking which is different. The School had reasonable cause. The Officer needed to prove a negative through the only tool at his disposal. The parents do not have a right to be notified. Are you arguing that they were required by the constituion to call the parents, because i did not see that written anywhere (I checked twice)or are you arguing that asking her to take a breathalyzer without offering a miranda warning is a violation? If that is the argument then why do the police not issue miranda warnings prior to every breathalyzer? Why do the police not "charge you with a crime" at a traffic stop before giving you a breathalyzer?

The link is about a case going before the Supreme Court next week. We will see how they rule in november. Here is an excerpt from the article:

.....the North Carolina Supreme Court, in a 4-3 ruling on December 11, 2009, deciding that J.D.B. was not in custody and therefore was not entitled to “Miranda warnings” before he could be questioned. The state court majority concluded that, in the school setting, students are under restrictions but that those do not amount to limitations on their freedom of movement. For Miranda to apply, it said, the police would have to have explicitly imposed restraints on the youth’s freedom to leave,.......

Unless the police EXPLICITLY imposed restraints they seem to be in the clear.

Under your scenario the breathalyzer would be tossed had it come up positive? Makes no sense to me.

If people want to vote in a school board that chooses to make a parental prior notification rule then they can do so, but it is not a Constitutional issue under current law.

I suppose notifying the parents before any questioning would be a good thing so they can go home and destroy any evidence. Especially if the child is suspected of making a pipe bomb, carrying weapons, or selling drugs. Slippery slopes can go both directions.

Seriously? A pipe bomb? I still think they could've run across Route 250 and run back with the mother in tow before resorting to a breathalyzer.

Domeq observed no signs of alcohol-nothing out of the ordinary,
If any of you remember high school, 10th Grade girls usually don't hold their liquor like 50 something assistant principals. It would have been obvious that she was drunk or drinking. No smell, no stumbling, no wild giggling, no out of the ordinary behavior. And yet this guy still thinks based on anonymous hearsay that a breathalyzer is necessary! What a genius! Domeq is a liability and if Albemarle County is smart they will encourage him to find employment elsewhere. He displayed shockingly bad judgement here and has caused them huge problems that could have so easily been avoided.

Tim Taylor, you did not answer my question. Do you feel the young girl was in custody? Either she was, or she wasn't. It's a yes or no question. Was she free to walk back to her class and sit down and resume her studies with the other students?

Your example of a police officer being observed drinking isn't even closely related to this incident. The police officer would not be a juvenile.

thetruthmatters, there are no huge problems here. The county school system and the cop shoppe will both deny doing anything wrong. They will fight the child's family tooth and nail for years if the family chooses to file any type of state or federal lawsuit. It doesn't cost the county a penny to fight for years. It's your taxpayer money footing the legal bills for Albemarle County. Not one person in Albemarle's employment will lose a single minute of sleep over this entire mess.

Tim, you suppose notifying the parents before any questioning would be a good thing so they can go home and destroy any evidence? Especially if the child is suspected of making a pipe bomb, carrying weapons, or selling drugs?

Didn't we go down this road not long ago in Albemarle County? Parents home and personal safe were entered and searched..... and all the cop shoppe found was a few firecrackers and a box of matches? Items that had been locked away from children. I also seem to recall the red headed stepchild cop searching the computer wasn't qualified to do so as well. And there was quite a controversay about the child being interrogated with no parents present, after they had been tricked to come into the cop shoppe to speak to the cops. Please speak up if my recollections are incorrect.

The link that Tim Taylor provided is about a case that involved a Miranda warning ("you have the right to a lawyer, you have the right to remain silent"y...) in a criminal case (breaking and entering and theft).

One of the suspects, a 13-year-old boy was linked to a digital camera that had been stolen from a home, and after being escorted to a conference room, questioned, and not advised of his Miranda rights "the youth was told that police had the digital camera that had been stolen.' That confession was later used to file "charges of juvenile delinquency" against the kid for "breaking and entering and for larceny." A lawyer for the kid then "sought to block the use of the boy’s confessions ."

The case went to the North Carolina Supreme Court which decided in a 4-3 vote against the student. In a convoluted twist of logic, the majority said that even though the student as taken from class, was placed in a school conference room, was being questioned by the police, and was "was NOT told about his rights, and was NOT told then that he was free to leave the encounter," the student was never really IN custody and therefore did not have to be advised of his Miranda rights. [emphases mine]

The majority in the North Carolina case used a 5-4 Supreme Court habeas corpus case (Yarborough) to decide if the students was really in custody...yet the decision in the Supreme Court case was a muddled one, with the "majority opinion...qualified."

The students and his lawyer appealed the NC Supreme Court decisions to the U.S. Supreme Court, arguing that "“Children are not the same as adults,” and “are more susceptible to police coercion than adults….Recent research indicates that children under the age of 15 are substantially more likely to be intimidated by authority than are older adolescents and young adults.”

Filing briefs in support of the student are "the American Bar Association and the Juvenile Law Center, as well as civil liberties organizations and criminal defense lawyers, as well as a group named the Center on Wrongful Convictions of Youth." Prosecutors and 31 state governments support the North Carolina position.

The U.S. Supreme Court has not yet decided the case.

Tim Taylor tries to confuse the Western case with the North Carolina case. But they deal with fundamentally different aspects of law and the Constitution. The leap Taylor makes is not remotely like comparing apples to oranges, but more like comparing apples to tater tots.

So, either Tim Taylor simply doesn't understand what he's reading, or he's deliberately trying to confuse the issue. Maybe some of both.

Tim: please tell us that you are not a conservative lawyer-in-training.

The same constitution that allows and protects the discussion we are having here also protects the people from unreasonable search and seizure. The what-ifs and other ridiculous scenarios have no place in this discussion.

If we don't want to lose our right to this free and open debate, we will fight for this young ladies rights without wavering. If we don't stand up for this girls rights, we are effectively saying that it's ok, at least this time. It's not! How many more rights are you prepared to sacrifice, Tim?

1) Gasbag. I do not believe that the child was in police custody anymore than if her parents called her into the living room of her house. The school was obligated to act as her parents in this case which they did. I believe that had the Officer overstepped his bounds the School would have protected the child. You have no basis to say otherwise except for your belief that the breathalyzer violated her fourth Amendment rights.

2) She was not held down and forced to take a breathalyzer. She had a choice and there is no mention of her being threatend with punishment. My presumption is that she was given an opportunity to clear her name. No different than say showing a stamp on her hand to prove she was at a different club at the time of an incident.

3) The threshold here is not intoxication or smell of alcohol. It is illegal to consume alcohol at school. One DROP breaks the law.

4) These were not anonymous reports, they were from identified witnesses. I presume that the PROFESSIONALS who are trained, made decisions about the credibility and went forth based on their analasys of the info. We can question that judgement except WE don't have the evidence, so we must legally presume they did their job and give them the benefit of the doubt.

5) Gasman you say observing the cop drinkiing is irrelevant because the cop is an adult. Ok, under what law does a minor have the right to have a parent present before any questioning or search? Could they have searched her for weapons or stolen jewlery? Is a breathalyzer more invasive than a search? What is your basis for your assertion?

6) Gasman, a hypothetical, if a police officer pulls over a 17 year old driver do they need to call mommy before they administer a breathalyzer? Your argument than will fall back on probable cause but you cannot have it both ways. If you accept that two eyewitnesses are reasonable cause to conduct a search, then two eyewitnesses informing the police they saw a 17 year old drink and drive would br probable enough. Since UNDERAGE DRINKING IS ILLEGAL in order for a police officer to ascertain the facts he would have to do a breathalyzer because he is not investigating drunk driving but underage consumption of alcohol. That is the minimum test. No different than if the kid was accused of stealing a TV. Would they need to call mommy before they asked him to open the trunk?

The Courts have given minors special protections, that is why we have juvenile courts that deal with crimes differently.The courts have not given kids free passes and loopholes to circumvent the law when it comes to getting the truth out.

The School is not under a legal obligation to call the parents prior to questioning by a police officer. If you want to make it a School POLICY scream at the School Board.

Democracy, your attacks are nothing but the rantings of a nasty human being. Your inabiliy to understand the issue does not make your conclusions correct. Tha fact of the matter is that the Supreme Court is willing to listen to the arguments and clarify the law. We will see what the ruling is in November.

Dear Tim Taylor,

You seem more than a little confused. Perhaps cognitively challenged fits as well.

Your skin is more than a bit thin...you take disagreement, and questioning and critical thought as the "the rantings of a nasty human being." Narrow, intolerant minds tend to react this way, and dogmatism is far more characteristic of what you term "nasty" human beings (witness the right-wing ranters) than it is of those who believe in the core values of democracy.

Tim, I'm not the one who has muddied the issue. You have.

And I'm not the one who has raised conjecture and speculation as substitutes for facts and law. You are.

I think I understand the issue...and as I cited, it's one that concerns a constitutional question that you misrepresent. And while the Supreme Court will in fact decide the North Carolina case you referenced (and Anthony Kennedy may be the deciding vote), that case has no particular connection to the Western case (as I pointed out, the North Carolina case focused on Miranda rights and the admissibility of the student's confession).

Again, please reassure readers that you are not a conservative lawyer-in-training.

If by chance you are, you seem to be in need of some serious tutoring in civil rights and constitutional law.

"core values of democracy"

A core value of Democracy is not just execising your rights but also accepting your responsibilities to keep society functioningin a meaningful way. That means that we attempt to strike a balance between government intervention and lawlessness. In order for the government to serve the people in needs reasonable tools. That is why we have volumes of laws on the books.

I don't believe that the parents have a Constitutional right to be notified prior to the Police interviewing their child at School. I think that the possibility of contaminating evidence and parental colusion to protect their child is a distinct possibility. There are a lot of parents out there who would rush home (perhaps innocently) and contaminate a crime scene in order to look for evidence that they pray they don't find.

There are three issues. One is "reasonable cause". If two witnesses saw a weapon it would be reasonable cause. You cannot choose which crime two witnesses justify.. Second is parental notification. I googled it and there are numerous articles saying that the Police have the right to talk to minors without first notifying the parents even in Schools. I saw enough to believe that that is accepted law. If I am wrong I will read any link anyone wants to post with an open mind. Third is the breathalyzer itself. People say that probable cause did not exist because she did not appear intoxicated or smell of alcohol. Ok, however the law is NO consumption of alcohol whatsover, so she did not need to exhibit intoxication or smell of alcohol. I believe she was offered a chance to clear her good name and took it. I believe it was a reasonable solution that settled the matter and I believe that had she not been offered it she would be considered an alcohol risk by the school because all they have to go on is two witnesses.They would be OBLIGATED to scrutinize her more in the future or face the wrath of "we warned you why didn't you do anything" if a subsequent problem came up.

If there was a video tape of her drinking from what appeared to be a beer bottle would that change anything??

Being an American does not mean fighting the system that is trying to protect us. It means finding a balance that works. It means that if you have the opportunity to clear your good name and move on then do so to free up resources that could prevent or solve a crime.

I am against all kinds of government intrusions, i just think these actions were reasonable despite the fact that it made someone uncomfortable. I belive the humiliation was from being pulled from class and questioned which the School had an absolute responsibility to do.

There is a line and it should be defined and I hope it is. I also hope that when they define it this case falls on the side that makes these actions reasonable.

I am not a conservative law student, I just grew up in a little town called Charlottesville where I witnessed many instances of parents covering for their children to keep them out of jail when they were teenagers and then call the cops on them when they were adults to stop that same person from beating or robbing them. I am sure in all his years of law enforcment gasbag can attest to that happening.

Tim,

1- You actually believe the school would have protected the child if the cop had stepped out of bounds? Keep on believing that, bud! Back in the late 90s the school system had a school resource officer who was out of control. The principal and teachers liked his style and supported him 100%. A local attorney who had a child in the school didn't think this was funny at all. Once the attorney got involved, the cop was pulled out of the school system and assigned to headquarters to turn everybpdy computer on before they arrived at work.

2- A 14 or 15 year old child does not know what her choices are. If she knew the laws of arrest, search, and seizure.... she would probably be much better qualified to be a cop than the cop that was present.

3- I wonder how many county school employees consume alcohol and use drugs on school property? How many cops? Don't even try to say none. An Albemarle law enforcement officer refused to take a random drug test a few months ago and is no longer employed with the county. (This really took me by surprise, never expected it from the guy involved). And yet these same people are pulling innocent children out of our classrooms and testing them. Classic!

4- Why was the child involved not given "the benefit of the doubt"? I am sure she denied the allegation before, during and after the breath test. Cops get a benefit of the doubt, our children don't. That's classic too, bud!

5- We disagree on whether this young lady was in custody or not. I'm sure the schools and cop shoppe will claim she was never in custody too. But, I also suspect that at no time did she feel she was free to walk away from authority. I suggest you read Virginia state code 16.1-246, tell me how those involved felt they could take her into custody. If you say section B, there was no clear or substantial danger to the child's life or health. And if you say D, go back and read it carefully, notice the word felony.

6- Read, study and learn the concept of implied consent. If you applied for and received a driver's license in Virginia, you are suppose to know this already. In the case of a juvenile applying for and receiving a driver's license, the parents have signed off on implied consent. Many of your examples compare apples to oranges.

@Tim Taylor

Once again I enjoy reading your posts. It is so nice to see someone with a willingness to learn, see both sides of an issue and be willing to attempt to see someone elses point of view.

I am so sick of seeing people at all levels of society, governmental or otherwise, that cannot admit that other people have valid viewpoints, cannot admit that possiby they can be wrong, cannot accept a balanced view, cannot accept compromise and on and on.

Maybe some things in this case were done wrong but was anyone who has posted here present at the school when this incident took place. I don't remember reading that someone was (maybe I missed it). If someone was not there how can they know the whole story.

Anyway, I am not wasting any more of my time on this subject. I am glad Tim Taylor is sticking by his views while being open minded...at least that is the way I see it.

gas bag

1) The system worked, a bad person was replaced by the system functioning as designed.

2) Agreed, but the way the laws are written, an administrator must be present as "loco parentis'" as a witness to amke dure rules are not violated. Your inherent beilief of corruption does not make it so. Regardless they followed the law as written.

3) I used an example of what would have ha[ppened if this were a teacher. they wuld have demanded a bretathlyzer or sent the teacher home, Not for being intoxicated, but for consuming alcohol on School grounds (and company time) This is presciely why I am for this. too much goes on and they need te tools to uncover it.

4) The school has no obligation to protect the sudent body and get to the bottom of the matter. I would presume that if a Police officer were not available (because they were busy stalking you) that the student would have been given the benefit of the doubt, but the officer was available and the student cleared her good name. Whynot put the matter to rest once and for all. Like I said if the student did not clear her name ther School would have had to make a note (at least mentally) that she was not exonerated. Had it been my child i would have had her request an breathalyzer to do so.

5) At what point do you define custody? When the police walked into the room? When they asked the fi rstquestion? when they asked her to take the test? Would she be in custody if she were questioned in the hallway in front of everybody? The law that I read as I pointed out says she was not. I will read any link anyone can post that says other wise. I googled the question: Is a police officer allowed to question a minor at school without notifying the parents ?" There were thousands of hits but I only read about ten from what seemed like legitimate sources.

6) And when the parents drop the kid off at school and into the "care and custody" of the School there is some "impled consent" also. For instance, emergency medical care, shuttling them to a an emergency shelter, punishing them (within boundaries) for doing wrong, and according to everything I read there is a differnent level of Fourth Amendment rights as is stated in the article. You cannot make the school responsible for your child and them tie their hands behind their back.

One last thing Gasbag, So you are saying that with "implied consent" a 17 year old can be breathalyzed at a traffic stop if the only probable cause is two eyewitnesses who say they saw him drink and drive? So you are saying that if the School can pass the "impled consent" rule that the school was justified?

I think the "implied consent" as you describe it was met in that the Administrator followed written School system procedures.

Which brings me back to square one. if you don't like it, vote out the school board (or lobby for a change in the rules)

I notice how when I changed from alcohol to weapons or stolen jewlery you all claimed apples and oranges instead of addressing the scenario. Why? Is the law not supposed to be consistent in these matters?

1- Correct. At least we agree on something. But time heals all wounds. This same person is now back out on the street as a low level supervisor. And that's a very scary thought.

2- My inherent belief of corruption is based only upon a small group of rogue cops, not the entire law enforcement community. I never thought in my life that I would be witness to a small group of cops lying under oath against another cop so as to protect themselves from liability in the wrongful actions committed by them.

3- A teacher is under a different contract than a student is.

4- It's amazing that you mention cops stalking me. I can only assume that you are aware of the fact that one has started doing exactly this again recently. It should prove rather interesting soon.

5- How I define custody and how the appeal courts define custody are probably 2 different definitions depending upon the circumstances. I will admit that I don't know what the courts most recent ruling is. If a cop or school official tells me I am not free to walk away after I specifially ask this question, I feel I am then in custody. Did the girl ask? I do not know.

6- When I drop my child off at school, I am not relinquishing care and custody to the schools or the cop shoppe. I am not asking them to babysit the child, I am asking them educate the child. And there seems to be very little of that taking place in public schools nowadays. I am also not relinquishing any rights my child may have by state law or the U S Constitution. Show me a ruling that says I have please.

We can debate this until we're blue in the face. But, we will never agree. I think the search of the child was illegal, a search that turned up no wrongdoing on her part I might add. Based upon nothing more than 2 other kids tattling on a third child. The first thought that would have come to my mind was this was a spat between children who didn't particularly care for each other.

I most certainly am not saying that with "implied consent" a 17 year old can be breathalyzed at a traffic stop if the only probable cause is two eyewitnesses who say they saw him/her drink and drive. Again, my first thought would have been why the two witnesses in your example had come forward to report a person they personally know. Athought DUI enforcement was never even close to being a major portion of my responsibilites during my career, I did and would would follow the car and try to establish cause to stop said vehicle. I never once relied on anonymous complaints or complaints filed by an acquaintance of the driver. Perhaps the school systm and the cop shoppe should have exercised the same caution?

@Tim... once again you are missing the point. You mention in an earlier post that the girl "was given the opportunity to clear her name". Great Day in the Morning!! Her rights say that she hasn't done anything until it is proven otherwise. Your statement implies guilt up front. And for the last time, eyewittnesses do not equal guilt. People are often wrong or misinterpret what they see!

Nick thinks it's nice that you stick by your views and opinions. Bully for you both. It's your inability to see the real issue here that's so frustrating. Your ability to stick by your views, hahaha, I'm not sure what we're supposed to say to that.

You should be stopping to think about the civics lesson you're receiving here, not sticking by a flawed ideal.

Happy Easter everyone!

In an earlier comment I cited the case of New Jersey v. T.L.O., a case dealing with the search of a student and student privacy rights.

I'll post his piece of an earlier comment because it appears that some chose to to read it or give it any consideration:

The essence of the T.L.O. decision is outlined below:

"...the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult."

"How...should we strike the balance between the schoolchild's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment."

"...the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception"; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place..."

**And here is the crux of the decision, and also what lies at the center of the Western breathalyzer search:

(1) "...a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."

(2) "Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

So, the questions are (a) were there "reasonable grounds for suspecting" that the student was or had violated school rules? and (b) were the "measures adopted [the breathalyzer] reasonably related to the objectives of the search?" and (c) was the breathalyzer "excessively intrusive in light of the age and sex of the student and the nature of the infraction?"

Indeed, the Supreme Court reaffirmed the T.L.O. standard in Safford v. Redding (2009) writing that:

"In T. L. O., we recognized that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a searchand held that for searches by school officials “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause. We have thus applied a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student and have held that a school search ‘will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction’.”

The "balanced view" that nicknameoscar wishes for is exactly what the Court dealt with in this case. Tim Taylor again writes that people complain that "probable cause did not exist," but as T.L.O. makes clear, in schools the standard is "reasonable suspicion," a lower standard than probable cause. The questions (above) remain the relevant questions.

oops....2nd sentence, "chose not to read it...."

Democracy, thank you for clarifying my point. The investigation was reasonable so long ar the Teacher and Administrator had a belief that it was credible enough to investigate. They are both trained adults paid and this is part of their job. I am of the belief that if a different set of students made the same claim it may have been given more or less credibility depending on their JUDGEMENT at the time. You can disagree with their decision but it was theirs to make.

I am of the belief that a breathalyzer is not so intrusive as to be forbidden. It is less so than a pat down and medal wand for weapons. I understand where others may feel different.

The issue you keep harping on is that she was cleared. If she had been imbibed would the saerch be thrown out? Doubt it.

Gasbag, whether you like it or not your child has to live by the rules of the school system or leave. You cannot decide them on a case by case basis. While she does not give up any rights guranteed by the Constituion or state they have both upheld interviews without parents consent. You may dislike the rules but that does not mean they are illegal or unconstitutional.

OMGpaul I am fully aware that we have a presumption of imocence in this country, we also have what is called "due process" which gives the government leeway to investigate crimes to protect society. That is why police ask for alibi info, that is why the IRS audits people, that is why police ask for reciepts if they believe you may be in possession of stolen goods. They get probable cause to investigate, you get due process rights to make sure that you have ample opportunity to ...wait for it....CLEAR YOUR NAME.

If you want to keep your mouth shut and let them build a case against you with liars and circumstantial evidence go ahead and hold your breath like a 4 year old and see how far it gets you.

Like I said, along with rights comes CIVIC RESPONSIBILTY. You actually have a moral duty to help with the investigation to save taxpayer dollars and get real criminals off the streets.

The parents did not have a "constitutional right " to be notified in advance.
There is no evidence that the student was coerced into taking the test under duress.
The reading I have done in the last day says that the interview was legal.

If you don't like it lobby the School board but there are no constituional issue here.

When a School has "reasonable cause" they have the right to interview the student and conduct a search without parental notification or permission.

The police were trying to determine whether or not she was the suspect of a crime. If a police officer asked to see the receipt because she was accused of stealing from the cafeteria they do not need to call the parents or give miranda warnings.

Is she was set up by the two witnesses they should be punished. If they were mistaken she should be happy that she was able to clear her name so easily. There are a lot of innocent people who are victim of honest mistakes and WISH that they had the opportunity to clear theit name in 30 seconds and move on.

We live in a world that moves at hyperspeed and we need to constantly find balance. We all have a civic duty to try and make it work, not create all kinds of loopholes for real criminals to jump through.

Tim, I truly hope that you are never wrongfully accused of anything and forced to "clear your name". But perhaps if you were to step outside your narrow view and stand in this persons shoes you would see that since she hadn't done a damn thing, she had absolutely no reason to have to prove her innocence to anyone. It's not how easy it was to do, it's the fact that she shouldn't have had to do it in the first place. Hopefully the "witnesses" will be dealt with and made to clear their names...

Tim, I truly hope that you are never wrongfully accused of anything and forced to "clear your name". But perhaps if you were to step outside your narrow view and stand in this persons shoes you would see that since she hadn't done a damn thing, she had absolutely no reason to have to prove her innocence to anyone. It's not how easy it was to do, it's the fact that she shouldn't have had to do it in the first place. Hopefully the "witnesses" will be dealt with and made to clear their names...

Oops, lol. My bad. Sorry about the double post.

Nothing will be done to the witnesses. To do so, the county would be admitting they jumped the gun in investigating a false claim. And this opens the door to civil litigation even wider to the real victim in this false allegation. Albemarle wants this entire to go away as quickly and quietly as possible.

Omgitspaul, I do not have a narrow view at all. Although I have never been falsely accused, I have had to provide my drivers license in an accident, even though I was not at fault.I have had to supply records to the IRS and I have had to answer questions at an alcohol checkpoint. each time I was innocent of any wrongdoing but was required to prove my innocence. I was afforded due process. The requests were reasonable and I complied rather than taking the 5th. It is my responsibility as an American to help the government run smoothly so long as they follow the rules.

Gasbag, You are presuming that because she was sober that the false allegations were malicious. For all you know they saw her pour a clear liquid from what appeared to be a vodka bottle and were trying to do the right thing. I don't know and neither do you. The difference is that I put some faith in the Teacher and Administration to use some judgment. As with every case like this there will be conversations and discussions to fine tune the system. They may reach a different conclusion next time, but unless we know the facts we are accusing them without evidence and putting the burden on them to clear their good names. Your statements seem hypocritical.

As a former police officer I am sure you came across many honest people who "thought" they saw someting that turned out to be false. They were trying to do the right thing but some people got called in because of what turned out to be false information. They unfortunately needed to clear their names but due process afforded them the chance. She was given the chance and took it.

I would imagine with all said and done she is a better person for having been on the right side of the humiliation. I wonder that if it turns out the witnesses were not being malicious they will be humiliated for an honest mistake with good intentions.

Its started. Just like in Germany 1932

Tim, I don't know a single person who became a better person after false allegations or false criminal charges have been placed against them. Especially after the false allegations or false criminal charges have pretty much become public information through the local media outlets. It's something a person never gets over. Take the man in Stauton, Viginia who was accused of murder, charged with murder, and cleared of murder. Did it make him a better person? You can bet your life it didn't. It totally ruined his life. It's something he will never get over and will carry to the grave with him. Even though the real murderer was finally identified, and it appears a cop shoppe detective helped cover for the real murderer, the man's life was already totally destroyed by the time the real murderer confessed decades later.

Twenty five years from now, or 50 years from now, this girl will vividly recall being dragged out of class and subjected to an investigation where she had to prove her innocence. She may only be 15 or 16 years old, but she knows this is not the way the system is suppose to work. And she has probably already been taught that this is not the way the system is suppose to work. Is there any question why more and more people are coming to hate authority in this country?

idontknowanythi.... it started on September 11, 2001. "Terrorism" has been used as an excuse for the city, state and federal governments to do as they darn please in almost any situation.

Your reply reminded me of this.... right now there is a renewed movement in all 50 states to give back to the judges the "may issue" choice in Concealed Weapon Permits. Until the "shall issue" wording was passed, judges could pretty much lay permits aside and ignore them. Permits in this area alone were pretty much laid aisde and ignored until a retired Secret Service agent got the NRA involved back in the "may issue" days. The law in Virginia changed to "shall issue" rather quickly after this.

Gasbag, When I was sixteen I witnessed a car wreck where a person died right before my eyes. I was affected by it at the time, but over all it has made me a better driver. I am not "grateful" that it happend but who knows how long it would have taken me to be a serious driver. That is why they have the wrecks in front of the firehouse. Adversity is a great teacher.

You are also taking a lot of liberties with assuming she was "yanked" out of class. I imagine that she was asked to the office the same way as if she were being called down to be given her house keys that a parent dropped off.

I still contend that she is better off for having gone through the experience. I would imagine the embarrassment of her parents making a big deal about it will have a more traumatic effect.

How should it have worked? At what point did they cross the line? "yanking" her from the class? Asking her if she drank? Having a cop asking her if she drank? The cop asking her to take a breathalyzer? Should the cop have called her parents and given her a miranda warning? How should it have played out? If the parents had been called and been present, and somehow prevented the breathalyzer she would be known as the girl who "got away" with drinking at school instead of the girl who was falsely accused but vindicated. The schools actions put the matter to rest. So long as they did not threaten or otherwise purposely scare the girl they did the best thing for all concerned. Especially the student. The breathalyzer may have saved her reputation.

This ship sails both directions. You are taking a lot of liberties with assuming the parents are making a big deal about this. Sounds to me like The Hook might have gotten a tip from somebody about this incident. Who was it? The wording above in the story, "according to the institute", gives me the impression the institute is making a big deal about it. But please understand, I don't agree that questioning possible wrongful acts is the act of making a big deal over it though. The Hook then interviews several people in composing the story, including the Rutherford Institute. The story very clearly says the teen and her family did not return phone calls from The Hook. And it sounds like perhaps the one quote attributed to the mother in this story was not given to The Hook by the mother.

The mother is somehow quoted as saying the event "caused serious distress to (her) adolescent daughter". And as I said above, I'm sure it did. I've been there and done that myself. Does the mother joining the Rutherford Institute in demanding apoligies mean the family is making a big deal of it? I don't think so. That's all I demanded when I had my problems, a public apology and admission that the serious allegations against me were a mistake and the result of an overzeoulous rookie who was out to make a name for himself. . When no apology was forthcoming, I had to resort to actual lawsuits in an attempt to restore my reputation and undo the character assassination inflicted upon me.

The Teacher owes no apology for doing his/her job.

Calling the Rutherford Instute in the first place is making a big deal about it.

GSOE had to resort to a lawsuit. Too bad they couldn;t have just given you a blow test.

Not a lawsuit. Lawsuits. Plural. Many of them.

Tim Taylor incorrectly states that in this whole discussion about the breathalyzer at Western Albemarle High School the "issue" that I "keep harping on is that she ]the student accused of drinking] was cleared."

That statement is patently untrue. Considering all of the comments that I've made on this issue, the things that I keep emphasizing are:

1. that there are guidelines for determining when a school search is proper and when it's not;

2. those guidelines were outlined in 1985 and endorsed again by the Supreme Court in 2009, and are:

a. "...a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."

b. "Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

3. there are a set questions that stem from the guidelines and are at the crux of the Western case, and they are:

(a) were there "reasonable grounds for suspecting" that the student was or had violated school rules? and (b) were the "measures adopted [the breathalyzer] reasonably related to the objectives of the search?" and (c) was the breathalyzer "excessively intrusive in light of the age and sex of the student and the nature of the infraction?"

4. wild speculation and conjecture are inappropriate and unhelpful in understanding or making sense of the Western incident, nor are they conducive to critical thought, nor do they constitute "common sense."

Those are things things I've emphasized. Now, reasonable people can disagree about what happened at Western (Tim Taylor believes all was appropriate). And there is still much unknown about what happened, and why, and how it all transpired.

What is clear is that Albemarle County has not exactly been "student-friendly" when it comes to honoring and respecting the rights of students. And while rights co-exist with responsibilities that's a two-way street. Administrators are supposed to know what rights students have and be responsible in protecting those rights. The destruction of student newspapers at Albemarle High and the violation of student free speech rights at Jack Jouett are only the two most publicized examples, but they occur daily in public schools here and elsewhere. School administrators are not terribly fond of or diligent in respecting and protecting student rights. They should be.

democracy you said:(a) were there "reasonable grounds for suspecting" that the student was or had violated school rules? and (b) were the "measures adopted [the breathalyzer] reasonably related to the objectives of the search?" and (c) was the breathalyzer "excessively intrusive in light of the age and sex of the student and the nature of the infraction?"

Are you saying that a) there was not reasonable gounds? b) a breathalyzer was not the right tool to use to determine whether someone is drinking? c) a breathalyzer was too intrusive?

I am not sure what your point is?

Bill Marshall, multiple choice question.... who called the Rutherford Institute?

a- the mother?
b- the father?
c- the victim of the allegations and search?
d- a friend of the family?
e- the victim's boyfriend?
f- an older sibling of the victim?
g- an attorney who might live next door to the family?
h- a close friend of the parents?
i- a neighbor of the victim who lives across the street?
j- a cop who disagreed with the actions of his own department?
k- somebody like me who also disagrees with the actions of the school and cop shoppe?

from the article:"The parents join the Rutherford Institute in demanding public apologies from the two girls who made the allegation, from the teacher who passed it along, and from Domecq for going forward with the breath test. The parents also seek a clear-cut policy on future alcohol accusations "so that innocent children aren't traumatized by having their guilt assumed without evidence."

I don't think it matters who called who. The Parents demanding an apology from a teacher for doing their job is ridiculous. What happend after the info was relayed had nothing to do with the teacher.

That tells me that both the parents and the Rutherford Institute are being unreasonable.

Even if they hasd wisked the child off to Guantano the Teacher woulod be off the hook.

Next question....

Well, it matters to me. People keep implying and saying that the victim's family is making a big deal out of this. Maybe the parents aren't the ones responsible for this entire event being exposed to the media.

It doesn't matter what the Rutherford Institute and the family demand. No employee of Albemarle County will ever issue anything close to resembling an apology. They never do. Did the Albemarle police apologized for killing a young man after a jury found them responsible in the wrongful death and awarded the family $4 million dollars? Nope. They continue to this day asserting they did nothing wrong in this wrongful death.

If you are demanding an apolgy from the teacher then you making a big deal about this.

It is the parents who owe the Teacher an apolgy for demanding that she apologise for doing her job.

Whoa! I am not demanding anything from anybody.

I just think it's entertaining to stir the hornet's nest, the devil's advocate, one who has reason to question authority based upon past wrongful actions against myself.

If the family decides to, they need to ask a judge or jury if the schools and cop shoppe did anything wrong or not.

the hook should be very familiar with bullying & slander. just ask some people that used to work there

But then where will the apologizing and owing of apologies end?

What would have happened if the child had been consumed alcohol, the school did nothing, and she injured someone driving home. The school is between a rock and a hard place. I have tremendous respect for TRI, but don't think this is a black and white issue either way.