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Samuel II
Samuel II, Attorney at Law
Category: Criminal Law
Satisfied Customers: 27010
Experience:  Handle criminal matters in both state and federal courts.
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my son(16yrs old) was questioned without us being there, is

Resolved Question:

my son(16yrs old) was questioned without us being there, is this legal? Also charged with section H&S 11353.5 giving drugs to another 16yr old, is this right?
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Samuel II replied 7 years ago.

hi

 

the US Supreme Court has ruled that juveniles have the same right as adults - and that they should be told they have the right to have a parent or guardian present so that the juvenile can discuss whether they want the aid of legal counsel present during questioning. the parent cannot make the decision on the presence of legal counsel, but a juvenile can discuss the matter with the parent - however, this only applies after a juvenile has been arrested -

 

so, if your son was not arrested, then they would not apply. many children do not know they are not under obligation to speak to anyone about anything they have been accused of - and so the kid will talk. and if they do talk then that infomation can lead to an arrest, at which time they should be advised their rights and also that they can confer with a parent about those rights.

 

here is the law for which you site he was charged - if your son is 16, then this does not seem to be the appropriate charge because it states "18 or older" and that "Application of this section shall be limited to persons at least five years older than the minor to whom he or she prepares for sale, sells, or gives away a controlled substance."

 

11353.5. Except as authorized by law, any person 18 years of age or
older who unlawfully prepares for sale upon school grounds or a
public playground, a child day care facility, a church, or a
synagogue, or sells or gives away a controlled substance, other than
a controlled substance described in Section 11353 or 11380, to a
minor upon the grounds of, or within, any school, child day care
facility, public playground, church, or synagogue providing
instruction in preschool, kindergarten, or any of grades 1 to 12,
inclusive, or providing child care services, during hours in which
those facilities are open for classes, school-related programs, or
child care, or at any time when minors are using the facility where
the offense occurs, or upon the grounds of a public playground during
the hours in which school-related programs for minors are being
conducted, or at any time when minors are using the facility where
the offense occurs, shall be punished by imprisonment in the state
prison for five, seven, or nine years. Application of this section
shall be limited to persons at least five years older than the minor
to whom he or she prepares for sale, sells, or gives away a
controlled substance.

 

 

 

 

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