Officer’s Constitutional Rights Not Violated When Compelled To Take Breathalyzer

Joe Pennington is a police officer with the Metropolitan Government of Nashville and Davidson County. While off duty on December 25, 2004, Pennington and his date met two of his high school friends at the Red Iguana, a bar in downtown Nashville. Pennington drank somewhere between four and seven beers at the bar.

Sometime after midnight, while still at the bar, Pennington’s friends became involved in an altercation with other patrons. Security guards on the premises attempted to break up the fight. Because Pennington thought that the guards were using excessive force on one of his friends, he intervened to help the friend. The security guards then attempted to grab to Pennington. He struggled against the guards’ attempts to subdue him and eventually identified himself as a police officer.

The fight immediately stopped and Pennington and his friends were escorted out of the bar. Eventually, both a sergeant and a captain in the Department responded to the scene.

The captain ordered Pennington to take a breathalyzer test. To avoid the crowd that had gathered on the street in front of the bar, the captain directed that the breathalyzer test be administered at the Department’s Central Station. The captain informed the officers that “Pennington is not going to sit in the back of the patrol car. He is not going to be handcuffed. He is not under arrest. He is cooperative.”

The breathalyzer test was administered in the back seat of a DUI police car in the parking lot of Central Station. Pennington registered a .121 breath alcohol level.

Following the test, the captain asked Pennington to write a statement regarding the incident. Pennington requested permission to delay writing the statement because he did not want to “write out a statement that was going to be misspelled and garbled” due to his intoxication. The captain then asked the sergeant to drive Pennington home.

After an internal affairs investigation, the Department determined that Pennington had not violated any Departmental rules or policies or regulations. Pennington later received informal verbal counseling from his supervisor.

Pennington then brought a lawsuit against the Department, contending that his Fourth Amendment rights were violated when he was ordered to take the breathalyzer test. Pennington contended that the order that he take the breathalyzer was the equivalent of a “seizure” for Fourth Amendment purposes.

The federal Sixth Circuit Court of Appeals rejected Pennington’s lawsuit. The Court quoted approvingly from another court’s decision that “the Fourth Amendment does not protect against the threat of job loss. The relevant constitutional inquiry must focus on whether reasonable people in the position of the officer would have feared seizure or detention if they had refused to obey the commands given by their superior officers.”

In the eyes of the Court, Pennington could not have reasonably feared that he would have been detained had he refused to obey the command to take the breathalyzer. The Court noted that the captain testified that “if Pennington hadn’t agreed to take the test, he would have gone home.” During his testimony, Pennington testified that “if they would have let me leave willingly, I probably would have gotten fired. If they had exerted authority, I would probably have been put in handcuffs and placed in the back seat of a car.”

From the Court’s perspective, this meant that “Pennington was afraid that he would lose his job or suffer disciplinary action if he failed to submit to the breathalyzer test. Pennington was not handcuffed, he was not placed in the back seat of the police car, he was not read his Miranda rights, and he was allowed to return home without filing his report of the incident. A reasonable off-duty officer in Pennington’s position would not have feared seizure or detention if he had refused to take the breathalyzer test.”

Pennington v. Metropolitan Government of Nashville and Davidson County, 511 F.3d 647 (6th Cir. 2008).

This article appears in the May 2008 issue