You could try posting an actual question with some details.
Not being snarky, just posting something so I can report the OP missing.
You can ask the judge and explain the circumstances or you can get a lawyer to do it for you.
Ah, I see. I bet most answers would be to see a lawyer. As the old saying goes, he who is his own lawyer has a fool for a client.
Interesting, but in my city a minor caught drinking alcohol in public faces a smaller fine than if they are caught drinking at home.
Dammnit, I had a huge OP typed up and everything. I have no idea how the damn thing got lost.
Anyway, here’s the crux of the OP:
.0136 was the BAC according to the breathalizer. Can I argue any type of inaccuracy within the breathalizer, or could I possibly have the charge dismissed solely upon the BAC?
Also, a side rant was that the “Indica” checked included both “Breath” and “Bloodshot/Red Eyes” even though the officer never got within three feet of my face. Given the BAC I have to think: Realy…???
Standard disclaimers: the following are coming from me, a non-lawyer, and are purely IMHO.
- As a minor, ANY level of alcohol intake is a violation.
- The arresting officer does not have to be eyeball-to-eyeball/nose-to-nose with you to see that your eyes are bloodshot.
- Aren’t juvenile records sealed upon your reaching the age of majority?
I’m going to assume from the tone of the OP that you WERE drinking alcohol.
My question to you is: are you willing to commit perjury, and deny that you were drinking inder oath, in order to beat this charge?
If your answer is yes, then you have made a very poor choice, as the potential consequences of perjuring yourself are far more severe than minor alcohol rap.
If your answer is no, good start. If you can afford a lawyer, hire one. Discuss your ideas with the lawyer, who should know which of them may be applicable in your jurisdiction. If this is a criminal case, you have the right to an appointed laywer, and you should request one.
Do you know what you could potentially be sentenced to?
First of all, of course you should contact a lawyer for REAL advice. Aside from that, how large of a person are you? .0136 is a very low result, below the BAC expected from one alcoholic drink in an average man. I think this is also significantly lower than the amount needed to give one bloodshot eyes, calling into question the officer’s observation. If you’re female or of small stature (or both), you could try arguing that you took some cough syrup or something. You could also get documentation of the accuracy of the breathalizer, find out it’s precision, then subtract that from your BAC to get a figure you could use in court. For example, if the device is accurate to +/- 0.005 BAC, you could argue that your “real” BAC was .0086, then explain that.
In Washington state, the laws about blood alcohol content in minor drivers consider results below 0.02 inconclusive, for comparative purposes.
Of course, if you are actually guilty, pleading so and being very remorsefull may be your best bet.
IANNAL(Yet)
If you have a clean record you can probably cut a deal with the DA and agree to do some community service, which if completed, will result in the charge being dropped. Failing that, hire a lawyer and demand a jury trial, force the state to prove every element of the crime beyond a reasonable doubt. You won’t have to testify, and it sounds like the breath test was so low you might be able to get a directed verdict or something at the close of the state’s case. Best bet: consult a lawyer.
Alright, thanks for the advice.
No, I am not willing to perjur myself upon this issue, but, fortunately the onus of “Beyond a Reasonable Doubt” lies with the prosecutor, not me. So I am going at this from an attack the prosecutions case rather than testifying myself.
Let me put it this way: I am arguing this more on a matter of principle rather than actual consequences; I can get out of all of this by taking a class (class fee=$100), but it really annoys me that I was issued a MIP ticket given the fact that I was, quite plainly, not obviously intoxicated and the officer obviously lied upon writing his ticket. So that’s why I want to fight it.
If I lose:
$78
24 hours of Community Service
Suspension of Liscense for 9-months (not a problem for me, won’t have a car for at least another 9-months anyway)
I have to write a 5-page paper
If I win:
I save one “strike” on my university’s alcahol policy
I save $100 dollars
Especially Alereon, I think that I can use that specific info.
Anyway, I guess I’ll see if I can call the DA’s office tomorrow for clarification of all of the legal issues.
Thanks,
Elliot
“$78
24 hours of Community Service
Suspension of Liscense for 9-months (not a problem for me, won’t have a car for at least another 9-months anyway)
I have to write a 5-page paper”
That’s not much, you should see what happens to you if you’re caught in SB, Calif.
If I may ask a general legal question:
I know that checkpoints have been ruled legal. However, don’t the cops still need a probable cause for putting you on a Breathalyzer? I know the arguments and rulings that basically say that to have a license, you must take a Breathalyzer test if asked, but is there something that stops the cops from making every passing motorist do it, even without any sort of sign that would make a cop think you were drinking? And yes, I do know about the passive alcohol detectors that can be put inside things like a flashlight and only need proximity.
Allow me to make this super, super, SUPER clear.
I was not in a car, I was walking with two other students, one not obviously intoxicated (.0961) and the other, falling down drunk, whom we were trying to get back to her dorm room with her room mate.
The police saw her, and since she couldn’t even take the breathalizer (admittedly, things WERE getting out of hand), she was sent to detox. I refused the breahalzer the first time, the cop did some other stuff, he prepared it a second time, I asked him if I would be forced to go to detox if I declined, he got all bitchy, and simply dissasembled the breathalizer again.
I suppose I really should have continued to refuse the breathalizer, but the impression which I got (wrongly) was that I would most likely end up paying for detox as well as the MIP, so I agreed to the breathalizer on the third time.
What really upsets me is the fact that I agree with the officer’s contention that if I had ultimately refuesed the breathalizer, it really wouldn’t matter, the officer’s testimony alone would be enough for a prosecutor to successfully get a MIP conviction, when, based upon the BAC, I simply wasn’t outwardly drunk. So in essence, we have lost our right to have the charges against us proven beyond a reasonable doubt, and the testimony of ne officer, an officer so obviously willing to lie, is all it takes to get a conviction on what is a rather serious charge.
So, I called the DA’s office today but the individual who handles the MIP’s is out, so I’l check in a little later with more info.
Woah, hold on there little camper. You haven’t lost any right to have anything proven yet. No one has said that you can’t have a trial. You may think you are going to lose, and the reason you think you are going to lose is becasue you are, in fact, guilty. You did consume alcohal, and were, therefore, a minor in possession. So far you haven’t said that you in fact hadn’t been drinking and that the test was screwed up, or that evidence was planted or anything of the sort. You may have some argument to exclude the test as being not based on probable cause, though I doubt it will fly, and you can always plead the case to the jury, but let’s not confuse “I wish I hadn’t blown, and gotten busted” with “I’ve lost the right to have a trial and put the state to its proof.” Also, the crime of minor in possession is not the same as public intoxication, so the issue of whether or not you were outwardly drunk is sort of irrelevant.
This point depends on the jurisdiction. In some jurisdictions, adults/legal guardians are allowed to give their minor children alcohol in a private setting, such as their own home. The rationale for this approach is that it’s better that parents educate their children about alcohol in a controlled setting, rather than letting the kids learn about it on the street from their friends. If this point is important to the OP, she should consult a lawyer familiar with the laws of her jurisdiction
Agreed, Rhum Runner, I am sort of arguing along a threat, assuming that the claim by the officer that I would necessarily lose without the breathalizer test is true, but you have to agree that the claims made by the officer regarding the external indicators are at least put into question by the actual amount demonstrated through the BAC test.
So, I guess it all depends upon wether it is indeed standard practice for judges to issue convictions based upon the tickets written by officers without objective BAC tests.
If it is true, then surely you’d agree that its at least unfair that people in essence have to prove their innocence through breathalizer rather than vice-versa becasue, from my own experience, the officers of at least this particular PD are apparently willing to lie in writing MIP tickets.
Rhum, you are a lawyer, correct?
I’m not familiar with the charge of “minor in possession of alcohol” and have a question that maybe someone can answer. There’s nothing in the OP to suggest she was carrying any alcohol with her; the alcohol was in her body. Does that satisfy the possession requirement for this offence? What exactly does the statutory description of the offence state?
Again, this is not intended as legal advice, as I know nothing about the offence in question; I’m just curious. The OP should consult a lawyer in her own jurisdiction if she wants legal advice.
Northern, I have been searching upon findlaw.com and I have been unable to find the exact statute unfortunately, but since this offence is so widely based upon simply having consumed alcohol, I am sure that it is an apporpriate charge, even without actual posession of alcohol.
Oh, and it’s a he, not a she.
Thanks.
Northern Piper
I’m not sure where threemae is located but most state statutes read fairly similar for this. When I was a minor my state (Wyoming at the time) had separate charges for Minor in Possession and Minor Consumption. The trend these days, at least here in the Dakotas, has been to roll all of these into one.
Below is South Dakota’s statute:
SDCL 35-9-2. Purchase, possession or consumption of beverage by minor as misdemeanor - Misrepresentation of age.
It is a Class 2 misdemeanor for any person under the age of twenty-one years to purchase, attempt to purchase or possess or consume alcoholic beverages except when consumed in a religious ceremony and given to said person by an authorized person, or to misrepresent his age with the use of any document for the purpose of purchasing or attempting to purchase alcoholic beverages from any licensee licensed under this title.
note: a Class 2 misdemeanor is the lowest level of offense in SD (just above petty offense) and is punishable by up to thirty days imprisonment in a county jail or two hundred dollars fine, or both.
OK, let’s start with the disclaimers:
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Since you have not named your jurisdiction, there’s little that can truly be offered in the way of specific information. After all, LAWS IN VARIOUS JURISDICTIONS VARY.
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While I am a lawyer (and used to be a prosecutor), I’m not YOUR lawyer. This is an opinion, not legal advice,a nd should not be taken as legal advice. This is not an offer or acceptance of legal representation or counsel. Seek competent counsel in your jurisdiction before trying anything that could run you afoul of the law.
That said, we’ll start with your first question. IME, attacks on breathalyzers almost always fail. The modes and methods of proper calibration of Intoxilyzers are well known to the police and are heeded quite cautiously, since, among other things, a miscalibrated Intoxilyzer can be used to create reasonable doubt. But unless you can prove that the machine was miscalibrated (as I sadi earlier, odds are very low that it was, and even so it’ll cost more than $100 to get an expert to look at the calibration logs, much less testify on your behalf), there’s little that can challenge an Intoxilyzer. The procedures are specifically designed to avoid error.
As to the officer witnessing the “objective symptoms” of your alleged intoxication, sorry, those symptoms are almost jargon among police officers. IOW, they know what to look for, and how to look for it. They don’t need to get within three feet of you to smell alcohol and see your bloodshot eyes. Try this experiment: find someone who’s been crying. Facing them, back away from them, and tell us how far you are away from them when you can’t tell they’ve been crying.
Add to that the fact that you were travelling with two individuals of varying levels of inebriation, and you have an officer with probable cause to believe that you had some amount of alcohol in your system. In California, the standard isn’t intoxicated, it’s possessing any amount of alcohol (with certain exceptions).
That’s a gross mischaracterization of the legal system. The officer had some evidence against you (breath, bloodshot eyes), and wanted more. Officers always want more evidence, because it makes it more likely to result in a conviction. You aren’t forced to prove your innocence, breathalyzer or otherwise. But the fact that evidence exists to implicate you in a crime (MIP in this case) doesn’t make it unfair that the officer talked you into giving him more evidence.
Considering the fact that you’ve not denied drinking, and the BAC was more than negligible, I’d say the odds are pretty well stacked against you. .0139% is, IIRC, sufficent in California to justify a conviction, absent some evidence to the contrary. Asking the Dopers to help you get out of a righteous charge is, IMO (and only MO), bad form.
No. I am not a lawyer. I am a law student. I am not trying to give you legal advice. If you want that, consult a lawyer in your jurisdiction. As a matter of purely personal opinion, I think you should pay the $100 and take the class and make this all go away. If I were you I would point out to the prosecutrer that you were trying to do the right thing by taking care of your friend, that you really weren’t out of control drunk, that you realize that underage drinking is wrong, you are sorry for what you did, and you won’t do it again. I would suggest to you that arguning that the police officer violated some right or other will likely not endear you to the DA. Pick your battle, and try to get the best result you can. You are, afterall, guiilty.