# News & Current Events > Individual Rights Violations: Case Studies >  Do you have to submit to a breathalyzer even if you're just WALKING?

## socialize_me

I was reading in the paper where a local college student was ticketed for "minor in consumption of alcohol" because someone called this student in after seeing her walk funny on a sidewalk close to her dorm. The cops then came and ticketed her after she failed a breathalyzer test. My question is did she have to submit to this test or not, legally speaking?

Now, I know the courts have upheld the fact that forcing drivers to submit to a breathalyzer test is not unconstitutional, but do you ALWAYS have to submit to one of these things even if you clearly aren't putting anyone else in potential danger?? I can understand it when you're driving (I understand the counter-arguments by Lew Rockwell and others on why DUI's are not necessary) because driving is a so-called "privilege" (yet you pay for the license, you pay the taxes to use the road, you paid taxes on your car, etc. so I don't understand how it's a "privilege") and you can put people in potential danger by being intoxicated, but I don't understand how a police officer can coerce someone into a breathalyzer just because they're walking funny. Is walking a privilege now? Does it endanger people if you're zig-zagging on the sidewalk? In that case, let's ban roller bladers and runners from our sidewalks.

So what exactly would happen if I were drunk and walking and refused to submit to a breathalyzer? If I were driving, I would receive an automatic DUI (or DWI), but would the same apply if I were just simply walking outside??

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## torchbearer

Never submit to anything.
You don't have to... you are a sovereign individual.
BuY a gun, form a militia, and own your rights.

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## ihsv

I sure wouldn't.  

The most they could do to you is book you for public intoxication, providing you were on public property.  If you're on private property, I don't think there's a whole lot they can do to you.

I may be way off on that, but...

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## driller80545

You are right ihsv. On private property you can refuse, on public property they gotcha.

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## ihsv

My question is how did they know she was a minor?  Did she show them her ID (like an idiot), or admit to them that she was underage (like an idiot)?

I wouldn't give them the time of day, let alone my ID, name and date of birth.

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## socialize_me

okay, but I'm not looking for theories or ideological stuff here...I'm interested on what the actual law says. Legally speaking, do you HAVE to submit to a breathalyzer if you're walking? If you get a DUI when you're driving because you refuse to submit to a test, what happens if you're walking? A WUI, or what??

I don't think you can just tell the cops "$#@! you" and walk the other way after they tell you to "stop!" because if you do that, you'll just be arrested for a different reason altogether. It's not very practical for me to assemble my militia and have them tell the cops to back the $#@! off...that's not very realistic, especially over something like being drunk in public. I wouldn't want to start a revolt and risk lives over the fact that I get ticketed for something so minor. I mean, should we grab our guns when we get a parking ticket?? Not very rational...

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## torchbearer

> okay, but I'm not looking for theories or ideological stuff here...I'm interested on what the actual law says. Legally speaking, do you HAVE to submit to a breathalyzer if you're walking? If you get a DUI when you're driving because you refuse to submit to a test, what happens if you're walking? A WUI, or what??
> 
> I don't think you can just tell the cops "$#@! you" and walk the other way after they tell you to "stop!" because if you do that, you'll just be arrested for a different reason altogether. It's not very practical for me to assemble my militia and have them tell the cops to back the $#@! off...that's not very realistic, especially over something like being drunk in public. I wouldn't want to start a revolt and risk lives over the fact that I get ticketed for something so minor. I mean, should we grab our guns when we get a parking ticket?? Not very rational...


read my signature. it does matter.
If you only have the rights you willing to fight for... and you are not willing to fight unjust laws with defiance... then you rights will be taken by law.
Now you have no rights, unless the majority says you do.

In Louisiana, they will still charge you with something, but you don't have to submit to anything.
What are they going to do, hold you down and force you to do it?

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## slothman

I don't know except "drunk and disorderly" is a crime.
I would say that you don't and if they arrest you at least you followed your morals.

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## asimplegirl

Campus handbooks usually talk of this, especially state universities.. as you can lose scholarships and such.  They do not want illegal activity on their campus and underage drinking is illegal..and if anything happened, they *could* be found liable.  Just like a public high school, if on campus, and the "authority" assumes something fishy is going on they are within their legal rights to investigate within the guidelines laid out for that campus.

The state university I went to said that they would check if they suspected it.  And if you are a student, on their property, you had the right to have a lawyer there, but that you must take it, as you are using their services, and are on their property.  The handbook went on to say that if found guilty of such things, you would have an on-campus hearing where you could fight it, and defend yourself and your reasons for staying a student and keeping scholarships.

If you are just out in the open, not on a campus, if a normal policeman stops you, it is different than an on campus type issue.

And, yes, telling a cop "eff you" and walking off will then get you arrested for a felony, just like running is a felony.

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## Rael

> And, yes, telling a cop "eff you" and walking off will then get you arrested for a felony, just like running is a felony.


How so? Unless you have already been advised you are under arrested and attempt to flee. And I don't see someone getting charged, or at least not convicted, for drunkenly attempting to walk away from being arrested.

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## Isaac Bickerstaff

> What are they going to do, hold you down and force you to do it?


In some cases, yes. One of my friends was mugged by the cops because he refused to reveal his name. He had been walking home (from the bar where we did indeed get S.faced), and was in his front yard when the cops came to question him. He walked into the deep snow and told them that if they wanted to talk to him they were going to have to come to him, not the other way around. They were not happy. They did follow him down the hill (private property) and one of them fell. At one point, my friend pointed his finger in the cop's face and said "I don't have to [give you my license] because I don't like you!"

The cops swarmed him and tackled him in the snow, injuring his elbow. They put the cuffs on him to the point of pain--they are designed to hit pressure points--and dragged him to jail. At the jail, he refused the orange jumpsuit and was led around the jail naked (he didn't mind). He refused the breathalyzer and did not cooperate with the mugshots. He kept putting his hands up to show the marks the handcuffs left on his wrists. In he mugshot that they finally got of him, he had his hands on the sides of his head and was blowing a kiss to the girl behind the camera.

When they put him in a cell, he spent a while throwing wet gobs of toilet paper at the surveillance camera because he said he wanted a little privacy, being naked and all. When he woke up the next day, they would not let him out until he took a breathalyzer. He blew 0.0. There was no official record that he had even been drinking. They still tried to charge him with resisting arrest.

Since the abduction happened on his front lawn, his wife and kids and several of his kids' friends witnessed the whole incident. When it finally went to court, none of the police showed up. Case dismissed. His lawyer wants to go after the police.

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## torchbearer

> How so? Unless you have already been advised you are under arrested and attempt to flee. And I don't see someone getting charged, or at least not convicted, for drunkenly attempting to walk away from being arrested.


True. Just ask the officer, "Am I being arrested?".
If he says no, he can't hold you. Just walk away.

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## apropos

You don't _have_ to submit to a breathalyzer if you're driving, even. I believe you can opt out (and be taken directly to jail) or ask to be given the coordination test. Unreasonable search and seizure is the key thing to know when dealing with this sort of question.

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## pcosmar

You do not have to submit to a breathalyzer. EVER!!
Not when walking, not when driving. 
Now you can lose your drivers license for refusal, but any half good lawyer can get it back for you.
I was advised of this By My Lawyer after I had submitted to one some years ago. I was told that in the future to refuse it. It is a violation of the 5th amendment. You do not have to incriminate yourself.
Refuse. Take the 5th.

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## asimplegirl

> How so? Unless you have already been advised you are under arrested and attempt to flee. And I don't see someone getting charged, or at least not convicted, for drunkenly attempting to walk away from being arrested.


well, yeah.  But People have been arrested for running from the cops when the just wanted to question them.  I will have to ask hubby what the charges they usually give are, but it does happen.

Point and case:




> In some cases, yes. One of my friends was mugged by the cops because he refused to reveal his name. He had been walking home (from the bar where we did indeed get S.faced), and was in his front yard when the cops came to question him. He walked into the deep snow and told them that if they wanted to talk to him they were going to have to come to him, not the other way around. They were not happy. They did follow him down the hill (private property) and one of them fell. At one point, my friend pointed his finger in the cop's face and said "I don't have to [give you my license] because I don't like you!"
> 
> The cops swarmed him and tackled him in the snow, injuring his elbow. They put the cuffs on him to the point of pain--they are designed to hit pressure points--and dragged him to jail. At the jail, he refused the orange jumpsuit and was led around the jail naked (he didn't mind). He refused the breathalyzer and did not cooperate with the mugshots. He kept putting his hands up to show the marks the handcuffs left on his wrists. In he mugshot that they finally got of him, he had his hands on the sides of his head and was blowing a kiss to the girl behind the camera.
> 
> When they put him in a cell, he spent a while throwing wet gobs of toilet paper at the surveillance camera because he said he wanted a little privacy, being naked and all. When he woke up the next day, they would not let him out until he took a breathalyzer. He blew 0.0. There was no official record that he had even been drinking. They still tried to charge him with resisting arrest.
> 
> Since the abduction happened on his front lawn, his wife and kids and several of his kids' friends witnessed the whole incident. When it finally went to court, none of the police showed up. Case dismissed. His lawyer wants to go after the police.


Like I said, it is different out in other areas, but if this college student WAS on campus, the campus handbook usually has guidelines for this.

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## brandon

> I was reading in the paper where a local college student was ticketed for "minor in consumption of alcohol" because someone called this student in after seeing her walk funny on a sidewalk close to her dorm. The cops then came and ticketed her after she failed a breathalyzer test. My question is did she have to submit to this test or not, legally speaking?
> 
> Now, I know the courts have upheld the fact that forcing drivers to submit


I'm going to find out the answer to this in 11 days.


About 7 months ago I was walking to my friends house from a 7/11 late at night. I had a couple beers before hand, but I was NOT drunk, and I was NOT causing any type of disturbance.  The cops stopped me, harassed me for a while, and then told me I had to take a breathalyzer. I told them "I know my rights, and I'm not taking that. I have done nothing wrong."

They slammed the cuffs on me right away and held me in a jail cell for 24 hours. I ended up with a 25$ fine for public drunkeness, which I pleaded not guilty to.

I have my court date in 11 days.

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## Kenso

> well, yeah.  But People have been arrested for running from the cops when the just wanted to question them.  I will have to ask hubby what the charges they usually give are, but it does happen.


Wouldn't be a felony under these circumstances, not by a long shot.

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## angelatc

> In some cases, yes. One of my friends was mugged by the cops because he refused to reveal his name. He had been walking home (from the bar where we did indeed get S.faced), and was in his front yard when the cops came to question him. He walked into the deep snow and told them that if they wanted to talk to him they were going to have to come to him, not the other way around. They were not happy. They did follow him down the hill (private property) and one of them fell. At one point, my friend pointed his finger in the cop's face and said "I don't have to [give you my license] because I don't like you!"
> 
> The cops swarmed him and tackled him in the snow, injuring his elbow. They put the cuffs on him to the point of pain--they are designed to hit pressure points--and dragged him to jail. At the jail, he refused the orange jumpsuit and was led around the jail naked (he didn't mind). He refused the breathalyzer and did not cooperate with the mugshots. He kept putting his hands up to show the marks the handcuffs left on his wrists. In he mugshot that they finally got of him, he had his hands on the sides of his head and was blowing a kiss to the girl behind the camera.
> 
> When they put him in a cell, he spent a while throwing wet gobs of toilet paper at the surveillance camera because he said he wanted a little privacy, being naked and all. When he woke up the next day, they would not let him out until he took a breathalyzer. He blew 0.0. There was no official record that he had even been drinking. They still tried to charge him with resisting arrest.
> 
> Since the abduction happened on his front lawn, his wife and kids and several of his kids' friends witnessed the whole incident. When it finally went to court, none of the police showed up. Case dismissed. His lawyer wants to go after the police.


Tell your friend I love him.

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## Rael

> Tell your friend I love him.


+1

In a not gay way

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## Paulitical Correctness

> In some cases, yes. One of my friends was mugged by the cops because he refused to reveal his name. He had been walking home (from the bar where we did indeed get S.faced), and was in his front yard when the cops came to question him. He walked into the deep snow and told them that if they wanted to talk to him they were going to have to come to him, not the other way around. They were not happy. They did follow him down the hill (private property) and one of them fell. At one point, my friend pointed his finger in the cop's face and said "I don't have to [give you my license] because I don't like you!"
> 
> The cops swarmed him and tackled him in the snow, injuring his elbow. They put the cuffs on him to the point of pain--they are designed to hit pressure points--and dragged him to jail. At the jail, he refused the orange jumpsuit and was led around the jail naked (he didn't mind). He refused the breathalyzer and did not cooperate with the mugshots. He kept putting his hands up to show the marks the handcuffs left on his wrists. In he mugshot that they finally got of him, he had his hands on the sides of his head and was blowing a kiss to the girl behind the camera.
> 
> When they put him in a cell, *he spent a while throwing wet gobs of toilet paper at the surveillance camera because he said he wanted a little privacy*, being naked and all. When he woke up the next day, they would not let him out until he took a breathalyzer. He blew 0.0. There was no official record that he had even been drinking. They still tried to charge him with resisting arrest.
> 
> Since the abduction happened on his front lawn, his wife and kids and several of his kids' friends witnessed the whole incident. When it finally went to court, none of the police showed up. Case dismissed. His lawyer wants to go after the police.


Buy that dude a drink for me.

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## tmg19103

> I'm going to find out the answer to this in 11 days.
> 
> 
> About 7 months ago I was walking to my friends house from a 7/11 late at night. I had a couple beers before hand, but I was NOT drunk, and I was NOT causing any type of disturbance.  The cops stopped me, harassed me for a while, and then told me I had to take a breathalyzer. I told them "I know my rights, and I'm not taking that. I have done nothing wrong."
> 
> They slammed the cuffs on me right away and held me in a jail cell for 24 hours. I ended up with a 25$ fine for public drunkeness, which I pleaded not guilty to.
> 
> I have my court date in 11 days.


I  hope it was not Philly cops wasting their time with this. They got better things to do and generally don't bother with something like this.

As for being stopped by a cop, if you are not in cuffs, they still may be "detaining" you based on reasonable suspicion a crime has been committed. The courts have ruled that it is reasonable for the police to detain you for approx. 15 minutes in order to question you and do whatever else (like smell you breath, check your eyes, etc.) to see if you have been drinking - or if you are the person who just robbed a bar at gunpoint because you match the description - i.e. they can detain you for approx. 15 minutes with reasonable suspicion. The immediate question is: "Am I being detained and why?" If you are being detained and walk away you can legally be arrested for failing to obey a lawful order of a police officer. If you are not being detained - walk away.

If detained, be polite and just say to the cop that you have been advised by your lawyer that if ever detained, and for whatever reason, not to say anything and not to take any "tests" without your lawyer present.

If the cops are on to you for DUI, NEVER do a field sobriety test. They can easily get a stone cold sober person to fail one if they want to. Refusing one without giving a reason can't be held against you. Also, NEVER take a portable field breathalyzer. They are not admissible in court and not taking it can't be held against you.

The key, whether the cop is trying to get you for DUI or drunk and disorderly in public, is to not give him enough evidence to justify an arrest, for which he needs probable cause. Thus, if the cop arrests you and takes you down to the police station for the accredited breathalyzer test and you fail it, your lawyer still may be able to get you off on lack of probable cause - assuming you were not stumbling or slurring your speech too bad. It is not against the law to just smell like alcohol in your car or in public.

As for taking the breathalyzer or not, it depends. If you know for sure you will fail, don't take it. If you are not sure you will pass or not, think about what probable cause you gave them. If your car was swerving and you stumbled out the door and fell on your face, they have enough probable cause to have arrested you and not taking the breathalyzer will give you a one year license suspension - BUT, if you think you may pass it - you may want to give it a try.

If you had one beer two hours ago and they somehow think they had probable cause to bring you in - take the breathalyzer, pass with flying colors and talk to an attorney about suing for false arrest if they did not have probable cause.

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## pcosmar

I would mostly agree withe the post above except.



> If you had one beer two hours ago and they somehow think they had probable cause to bring you in - take the breathalyzer, pass with flying colors and talk to an attorney about suing for false arrest if they did not have probable cause.


I was sure I was under the limit, (5 small beers, in 10oz disposable plastic cups) over 41/2 hours.
I blew.186

A month after this incident, and  after pleading guilty the deputy was Fired for making (several) false reports.
Don't ever trust them. they can "Doctor" a Breathalyzer.

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## LibForestPaul

Please don't tell the cops to $#@! off. I do not want to watch a video of one of you being tased to death. Pretty sure there is a thread around here that state what you SHOULD do.

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## Matt Collins

> When they put him in a cell, he spent a while throwing wet gobs of toilet paper at the surveillance camera because he said he wanted a little privacy,


Hmmm.... that sounds like a great idea for red light cameras 






> They still tried to charge him with resisting arrest.


How about the cops get charged with false imprisonment? 




> Since the abduction happened on his front lawn, his wife and kids and several of his kids' friends witnessed the whole incident. When it finally went to court, none of the police showed up. Case dismissed. His lawyer wants to go after the police.


GREAT! I hope he gets a lawsuit and also gets those officers kicked off the force.

At MINIMUM he should file a legal complaint against them to put on their permanent record.

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## devil21

This varies by state law.

In my old home state, a drunk in public charge requires no evidence other than a cop saying you were acting intoxicated.

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## tmg19103

> I would mostly agree withe the post above except.
> 
> I was sure I was under the limit, (5 small beers, in 10oz disposable plastic cups) over 41/2 hours.
> I blew.186
> 
> A month after this incident, and  after pleading guilty the deputy was Fired for making (several) false reports.
> Don't ever trust them. they can "Doctor" a Breathalyzer.


That's an amazing amount to blow for drinking so little over almost 5 hours. I would have had my lawyer look in the breathalyzer calibration. They need to be calibrated, tested and appoved on a regular basis.

Like I said - if you had _one_ beer two hours ago - take the breathalyzer. If you are not sure, only take it if you think you may pass AND you think you can get off on lack of probable cause.

I do agree that the cops rigging the breathalyzer is a concern because they don't want to get sued for false arrest or even just look bad to their supervisor. Still, most breathalyzers are made today so the police can't "doctor" them as that could well become part of your defense. 

It is generally a represntative of the manufacturer who comes in and calibrates them, but who knows, he could always be on the take.

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## tmg19103

> This varies by state law.
> 
> In my old home state, a drunk in public charge requires no evidence other than a cop saying you were acting intoxicated.


The ideal, if you are not drunk, is to get your ass in front of the police car so you are recorded on video and audio. If the cop is not to far from his car, you should still be on audio.

But yes, in many cases it ends up being your word against the cop - and in that case you will always lose.

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## pcosmar

> That's an amazing amount to blow for drinking so little over almost 5 hours. I would have had my lawyer look in the breathalyzer calibration. They need to be calibrated, tested and appoved on a regular basis.
> 
> Like I said - if you had _one_ beer two hours ago - take the breathalyzer. If you are not sure, only take it if you think you may pass AND you think you can get off on lack of probable cause.
> 
> I do agree that the cops rigging the breathalyzer is a concern because they don't want to get sued for false arrest or even just look bad to their supervisor. Still, most breathalyzers are made today so the police can't "doctor" them as that could well become part of your defense. 
> 
> It is generally a represntative of the manufacturer who comes in and calibrates them, but who knows, he could always be on the take.


I was told later by an ex cop that touching the end of the tube with a little rubbing alcohol or cologne could give the "desired " result. If they thought there might be a chance of a low BAC.

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## Matt Collins

> One of my friends was


Oh by the way,

*BEST DAMN STORY EVER!*

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## tmg19103

> I was told later by an ex cop that touching the end of the tube with a little rubbing alcohol or cologne could give the "desired " result. If they thought there might be a chance of a low BAC.


Then this police department needs a more advanced breathalyzer that makes it virtually impossible to rig. The local government should be for this as they don't want the bad publicity of a cop getting caught rigging breathalyzers - and everybody knows they will if they can to avoid the problems of making a false arrest.

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## Isaac Bickerstaff

> Oh by the way,
> 
> *BEST DAMN STORY EVER!*


No, really! I DO have friends.
Thanks.

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## Jagwarr

> This varies by state law.
> 
> In my old home state, a drunk in public charge requires no evidence other than a cop saying you were acting intoxicated.


 This is one of the very few areas where NJ is on the right side. The NJ state constitution goes out of its way to state that public drunkeness is not an illegal act. 

This was challenged a few years back by someone who was arrested solely because he was drunk.

 So police in NJ do not have the right to give you tests if your just walking or outside standing around drunk as long as your not actually drinking somewhere your not suppose to and most cops understand and respect this.

 Of course if you are drunk your more apt to do things which could get you arrested or police could receive complaints that say you are in need of medical help which could be very well true.

 However I can say as someone who gave up drinking ten years ago that the police in NJ were always mindfull of the state right to drunkeness, when your not driving of course, and at most would talk to you to ensure your good enough to get home and sometimes even offer you a ride home.

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## KenInMontiMN

> I was told later by an ex cop that touching the end of the tube with a little rubbing alcohol or cologne could give the "desired " result. If they thought there might be a chance of a low BAC.


In MN the going rate just before the turn of the century, if you knew the right people and wanted a clean result from the Bureau of Criminal Apprehension Laboratory, was $1500 for alcohol and $2000 for street drugs. There's no reason to believe that such falsification can't work both ways, and in fact I've seen it go both ways, in one case a controlling husband turned his wandering wife in for meth possession, and when she agreed to stay securely under his thumb he ponied up the money to his cop buddies and suddenly lo and behold the meth tested meth-free. In the other direction, I've also seen BCA urine analysis for alcohol come in just over the line at the time (0.11) and independent testing of the sample peg it at half that level. In the second case, the judge, after agreeing to public defender's request to have the state pay for the independent testing for an unemployed defendant, turned around and caved in to a prosecution motion to suppress the differing result of the independent test. Very appealable, had the defendant had the funds to pay for such appeal, which the courts already knew he didn't have.

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