How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Zoey_ JD Your Own Question

Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16357
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
18321761
Type Your Criminal Law Question Here...
Zoey_ JD is online now
A new question is answered every 9 seconds

Can i Get out of this MIP

Resolved Question:

Can i Get out of this MIP
I was on my way to college and got pulled over. The cop told me to go to the front of my car and then started going threw my car looking for "something" without asking me or anything. He dug long enough to find a bottle of hard alc. in back seat that was not full. He then gave me a ticket for open container and MIP. my BAC was .000%
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 3 years ago.
Jacustomer,

You don't have to drink any of the alcohol to be convicted of an underaged drinking offense. The mere possession of it is enough as you can see from SD Codified Laws:

35-9-2. Purchase, possession, or consumption of beverage by person under twenty-one years prohibited--Exception--Misrepresentation of age--Violation as misdemeanor.

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 pursuant to § 35-9-1.1 or when consumed in a religious ceremony and given to the person by an authorized person, or to misrepresent his or her 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.

A class 2 misdemeanor in South Dakota carries a penalty of up to 30 days in jail and /or a $500 fine. That would be your maximum risk if you took this case all the way to trial and lost.

Additionally, for a first offense under the above statute , your license can also be suspended for up to a year, thouth there would be a hardship license available to you. See 35-9-7
______
In answer to your original question, the particular charge is a strict liability offense -- a zero tolerance crime. If you're under 21 and you've got alcohol in your possession you can be convicted of this crime.

The state does have diversion programs for underaged drinkers which vary slightly from state to state but basically involve fines, community service, anti-alcohol awareness classes and a brief period of supervised or unsupervised probation. At the end of this, if there have been no further problems with the law, the case gets dismissed and would then not give you a criminal record. In order to take advantage of a diversion program, you would have to agree to this almost immediately. Once you turn it down and start appearing before the judge, it is no longer an option. Other non-jail offers would be, but they won't necessarily seal your record.

You do have a potential search and seizure issue. It is not clear why the police stopped you or if he had the authority to search your car. You could challenge the stop and the search, but you would have to choose to try the case and turn down a diversion (and any other) offer. Because the way to challenge the constitutionality of a search is to move for a pre-trial suppression hearing.

The US Supreme Court has said that to determine whether someone's rights are violated, a hearing must be held, as what's proper or not has to be decided on a case-by-case basis according to what a reasonable police officer would do under all the circumstances. These hearings are hard to win, but essentially, the prosecutor would call the police to the stand and get him to explain the stop and the search with a view towards showing that everything the police officer did under the circumstances was reasonable. Then your lawyer (you are a criminal defendant and should have one) would get the opportunity to cross-examine the officer to show just how unreasonable his actions were. The judge would then decide whether your rights were violated.

If the judge determined that the police behavior was unreasonable and in violation of your constitutional rights, the alcohol could not be used against you, and the case would have to be dismissed. If the judge determined that the police behavior was reasonable under all the circumstances, the evidence comes in at your trial, and you'd have no defense to the charge and you'd have already turned down the best deal you were going to get.

As indicated before, you should have a lawyer. He can probably negotiate a disposition where you come out of this without a record. Or, once he hears everything from you in detail, he may think you can win a suppression hearing. Again however, if you lose the hearing you will almost certainly lose the trial. If you lose the trial, you do risk some jail time.



.

Edited by FranL on 11/2/2010 at 1:00 AM EST
Customer: replied 3 years ago.
I was stopped for speeding? The officer told me that i was driving 40 in a 30 which is wrong it was 35mph speed zone. When i got into the car his radar showed no evidence of me going 40mph and the ticket showed no actual speed. I was wrote a warning for speeding.
Expert:  Zoey_ JD replied 3 years ago.
Hi,

Sorry for the delay. I had to take my dog out. If the officer claims that you were speeding, that would give him a legitimate basis to stop your car. From there, he'd be allowed to ask for your identification and detain you briefly. Depending upon what may have happened during the time he was speaking to you, he may have acquired a basis to conduct a further inspection of the vehicle which, in turn led to his turning up the alcohol. Or, apart from the stop itself, the officer may have been way out of line. It comes down to the same thing. You'd need to have a hearing to find out.

Every defendant has two choices when charged with a criminal offense. He can take a plea offer or he can fight the case all the way to trial. What a lawyer would be able to do would be to inform you of all of your rights and choices so that you make an intelligent decision. The alternatives you're going to have will exclude each other. That is, the best deal you're going to get would be a diversion opportunity, and if you take that, you can't challenge the evidence. If you challenge the evidence you may or may not get it suppressed. There's no such thing as a defense slam dunk when it comes to a suppression hearing. If you win, your case gets pitched. If you lose you can't get diversion. You will likely get some jail.

You will need a lawyer to look at the court papers and any discovery material he can get and to confer with the prosecutor so that you can weigh your choices correctly and know what to do. You may have a defense to the speeding but that's not your big problem here. Speeding infractions do not go on your criminal record. The MIP can.

Edited by FranL on 11/2/2010 at 2:34 AM EST
Customer: replied 3 years ago.

Do you think it is worth trying to fight it? If i could prove that he didnt have a good enough reason to search my car could i get out of the MIP. Car never smelled like alc. I never smelled like alc.

Expert:  Zoey_ JD replied 3 years ago.
If you can win a suppression hearing -- demonstrate that the police didn't have the right to search your car without probable cause and/or a warrant -- you can get the case tossed. But like I said initially, if you lose the hearing you're stuck with a strict liability charge. You have no defense to having alcohol in the car if the search is upheld.

If you were offered a guarantee that you could walk away from this case without a criminal conviction, versus a "maybe" you could win a hearing, on a case like this, I'd probably recommend the guarantee (unless you could agree to get the prosecutor to keep that deal open until after the hearing).

But please remember, I'm just going with the odds. I am not privy to any of the information I'd have if I were actually representing you on your case.

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16357
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 3 other Criminal Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
< Last | Next >
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RE/retiredlawyer/2012-6-6_19326_franL.64x64.jpg Fran L.'s Avatar

    Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2079
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/NA/nathanmoorelaw/2011-5-31_21375_headshotbig.64x64.jpg Nate's Avatar

    Nate

    Lawyer

    Satisfied Customers:

    1625
    Over 10 years of criminal defense practice.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Lawyer

    Satisfied Customers:

    1434
    30 years legal experience
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    1418
    16 yrs. of experience including criminal law.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    1380
    Licensed attorney with 27 yrs. exp. in criminal law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Lawyer

    Satisfied Customers:

    1300
    Experienced in multiple areas of the law.