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Alex J. Esq.
Alex J. Esq., Attorney at Law
Category: Criminal Law
Satisfied Customers: 16501
Experience:  Experienced Licensed Attorney / Criminal Law Mentor
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I recieved a summons for having an open alocholic beverage

Resolved Question:

I recieved a summons for having an open alocholic beverage in a brown paper bag. i was approched by an officer who gave me a summons. The date ofn the summons is 4/29/11 yet the date it actually occured is 4/30. is it possible for me to fight the summons based on this descrepancy ?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  replied 5 years ago.

Alex Esquire :

Hello. My name is XXXXX XXXXX I will be glad to help you.

Alex Esquire :

Are you online with me?

Customer:

yes

Alex Esquire :

Generally the date is a correctable offense

Customer:

what does that mean correctable ?

Alex Esquire :

I meant a correctable mistake.

Customer:

ok if i am found guilty . will this go on my record ?

Alex Esquire :

It mean that generally it would not void a summons. I am assuming that you received a "pink" summons that has a court date?

Customer:

yes.

Alex Esquire :

What is the offense that is listed on the summons?

Customer:

4/29/11 today.

Alex Esquire :

not the date, but the offense, or statute number that you have violated?

Customer:

Consumption of Alcohol Beverage (beer) in public.

Alex Esquire :

give me one second.

Customer:

sec10.125 sub 2b

Alex Esquire :

This took place in NYC? Correct?

Customer:

yes

Alex Esquire :

Does your ticket requires you to go for a hearing before the environmental control board?

Customer:

No . It requires me to summon to appear in criminal court.

Alex Esquire :

Well, this is an administrative code violation and violation is not a criminal offense. If found guilty you can be fined $25 and/or sentenced to up to 5 days in jail (which hardly ever happens)

Alex Esquire :

As far as the record, this might come up as a violation, but as I said it is not a criminal offense.

Customer:

My reason for saying this is am in a custody hearing for my daughter with her mother. can this offense work against my credibiltiy as a stable parent ?

Alex Esquire :

It should not, however you do not want them to use it to advance a claim that you are a drunkard.

Alex Esquire :

It would be a long shot for your daughter's mother, absent other supporting evidence. She might never even find out about this incident.

Customer:

I am confused . How can they advance a claim ?

Alex Esquire :

Well, we are crossing over into family law, and we have a category here which specifically deals with family law question. I can only tell you that during custody battles people would accuse each other of anything they can think of and then some...

Customer:

ok . I understand. I guess why I asked is that some years before i had a violation with urinating in public. I did not want to add this to the list. will i face any jail time?

Alex Esquire :

99.99 percent no jail time, unless you manage to really piss the judge off. That is the only time I had ever seen someone going to jail for a couple of days for this.

Alex Esquire :

Also keep in mind you do not have to plead guilty to this summons.

Alex Esquire :

Were you intoxicated at the time when this happened?

Customer:

If i do not plead guilty . Do i have a chance to beat the summons.

Customer:

No i was not intoxicated . very much sober.

Alex Esquire :

Well, possession of an open container creates a rebuttable presumption that you were going to consume it as well. Here is the ordinance:

Alex Esquire :

§ 10-125 Consumption of alcohol on streets prohibited. a. Definitions. Whenever used in this section, the following terms are defined as follows: 1. Alcoholic beverage. Any liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume. 2. Public place. A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city. b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained. c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section. d. Nothing in this section shall be deemed to prohibit the consumption of an alcoholic beverage in any duly licensed establishment whose certificate of occupancy extends upon a street. e. Any person who shall be found to have violated any of the provisions of this section shall be punished by a fine of not more than twenty-five dollars ($25) or imprisonment of up to five (5) days, or both, or pursuant to the provisions of the family court act of the state of New York where applicable.

Alex Esquire :

So generally if you did not drink it or did not intend to drink it, you can always argue your case before the judge.

Alex Esquire :

Do you have any related follow up questions?

Customer:

no . your fee is $30 corrrect ? do you think i need to retain a lawyer ?

Alex Esquire :

yes when you accept your answer part of the $30 that you have deposited will be forwarded to me. As far as getting an attorney to handle this, I would recommend that you consult with a local attorney who is offering free consultation and can tell you upfront what it would cost you to fight it and what your chances are at succeeding.

Customer:

ok . Thanks for all of your help.

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