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J.Hazelbaker
J.Hazelbaker, Attorney
Category: Business Law
Satisfied Customers: 4385
Experience:  Experienced and trained in the area of business law.
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I got an underage possesion charge last night. The thing is

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I got an underage possesion charge last night. The thing is I had one beer two hours before I got stopped by the cops at a bus stop. They asked If I had drank anything tonight and I told them the truth that I had drank one beer. They then proceeded to give me an underage possesion charge without ever giving me a breathalizer to prove that anything was still in my system. So they have no proof that I was intoxicated at all. Is there anything I can do or say to the judge on my court date to possibly lessen my sentence or get out of this? By the time the cops stopped me I am positive that there was nothing in my system so how could they give me a charge without proving that I was under the influence?
Submitted: 6 years ago.
Category: Business Law
Expert:  J.Hazelbaker replied 6 years ago.
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J.Hazelbaker :

Hello. Thank you for using JustAnswer.

J.Hazelbaker :

It sounds as if you were improperly charged.

J.Hazelbaker :

If anything, the proper charge would be underage consumption, not possession

J.Hazelbaker :

"possession" will require that the state prove that you had alcoholic contraband on your person at the time of the citation.

J.Hazelbaker :

You didn't and they can't prove that you did.

J.Hazelbaker :

So, I would ask that the charges be dismissed on the grounds that you were not in possession.

JACUSTOMER-addp48c2- :

So is there anything that I can tell the judge to get me a lesser sentence?

JACUSTOMER-addp48c2- :

The cop said that your body is considered a container

J.Hazelbaker :

You shouldn't be sentenced at all. The charge should be dismissed completely.

J.Hazelbaker :

That's ridiculous.

J.Hazelbaker :

The cop is assuming you won't challenge it.

J.Hazelbaker :

It's not illegal for minors to drink.

JACUSTOMER-addp48c2- :

There was no proof other than me telling him that i had drank a beer. Can he charge me for that?

J.Hazelbaker :

For example, a parent can provide an alcoholic beverage (within reason) to a minor in the privacy of their home.

J.Hazelbaker :

You can be charged for underage consumption, if you admit that you drank illegally.

J.Hazelbaker :

But, that's not what you were charged for.

J.Hazelbaker :

What state are you in?

JACUSTOMER-addp48c2- :

Yes so should I challenge it in court?

JACUSTOMER-addp48c2- :

Virginia

JACUSTOMER-addp48c2- :

Harrisonburg, Va

J.Hazelbaker :

I would challenge it. Hold on, let me look at the statute.

J.Hazelbaker :

O.K. In Virginia, both possession and consumption is under the same statute.

J.Hazelbaker :

Thus, you weren't really charged for possession. Here's the statute:

J.Hazelbaker :

A. No person to whom an alcoholic beverage may not lawfully be sold under § 4.1-304 shall consume, purchase or possess, or attempt to consume, purchase or possess, any alcoholic beverage, except (i) pursuant to subdivisions 1 through 7 of § 4.1-200; (ii) where possession of the alcoholic beverages by a person less than 21 years of age is due to such person's making a delivery of alcoholic beverages in pursuance of his employment or an order of his parent;

J.Hazelbaker :

So, unless you can show that you were drinking lawfully at the time (with your parent's permission in your home), then you technically violated the statute.

JACUSTOMER-addp48c2- :

Shouldnt they have breathalized me to prove that I was intoxicated in the first place?

J.Hazelbaker :

Only if there was no other evidence. But, you gave them the evidence that you consumed when you told them you did. Unless you go back on that statement, they've got your admission as the only evidence they need.

JACUSTOMER-addp48c2- :

ok thank you

J.Hazelbaker :

You're welcome. Let me know, if you have follow-up questions.

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