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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
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Experience:  Handling criminal and probation matters for over 14 years.
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I was recently charged with a minor in consumption, without

Customer Question

I was recently charged with a minor in consumption, without having been drinking, and I'm curious as to my options.

I was sitting in the backseat of a vehicle that was pulled over for rolling through a stop sign. There were five passengers, including myself, in addition to the driver. One officer approached the drivers side and asked for her identification. Another officer approached the passenger side, I was the only individual with an I.D. which I handed to them. They pulled each individual out of the vehicle separately and they each submitted to a breathalyzer. Two individuals blew above a .00, but because they were below a .02, the officers did not issue a citation (the driver had not consumed any alcohol).

I was the last individual to be taken to the squad car. I was entirely cooperative, yet still aware of my rights. When I was in the squad car, they asked if I had drank anything tonight. I told them, correctly, no. I was then read my Miranda rights. Next, they explained the breathalyzer to me, told me that they would 'give me the same deal they gave my buddies', where if I blew below a .02, I would be let off. They asked if I consented to a breathalyzer and I politely refused to give my consent because I felt like I had no need to. I told them that I did not think they had cause to ask for a breathalyzer, to which they responded they smelled a strong stench of alcohol in the vehicle when they initially approached it. At this point, they asked what my major was in college, and then asked if it was pre-law (because I understood my rights at the time). The two officers left the car and one officer approached the vehicle that I was pulled over in. I was later informed that they had asked this group two questions, 1) What my major was and if I was pre-law, and 2) how much I had drank. I am unsure if my friends said my major, but they did say that they had no knowledge how much I drank or if I had even consumed any alcohol at all.

Then, the officers came back to the squad car and cuffed me. While they were filling out the paperwork, I requested a field sobriety test and as the paperwork was nearly completed, I believe (not 100% certain) that I requested a breathalyzer as well so that I would not need to deal with going to the correctional facility. I was told no to both (or at least to the field sobriety test, again I am not 100% certain if I requested the breathalyzer, but I believe that I did). When I asked what their grounds were to arrest me, they stated that I had bloodshot eyes (I was in the back of a dimly lit cop car, it was 1:30 a.m., and they did not shine a light in my eyes or anything similar to check), that I smelled of alcohol (I may have, I was around others drinking and may have had alcohol spilled on me), and that I was slurring my speech, which I do not believe that I was.

When I was booked at the correctional facility, one of the booking officers actually asked me 'what they got me for', and was surprised when I said minor in consumption, because I was not displaying any signs of being intoxicated or of smelling like alcohol. I was not given a blood test and was released on bail almost immediately.

In short,
-I refused a breathalyzer initially
-My later request for a field sobriety test (and I believe a breathalyzer) was denied
-I was not given a blood test at the correctional facility
-The only evidence the officers have is supposedly bloodshot eyes, stench of alcohol, and slurring of speech.


How can I fight this? Also, will this be publicized prior to the court hearing?

Thanks for the responses, I really appreciate the help.
Submitted: 2 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 2 years ago.
Hi and thank you for using JustAnswer!

I am sorry to learn of your experience. The matters surrounding the arrest are a matter of public record. Whether or not it will be mentioned in the local media is unpredictable.

However, all you have to do is go to court, plead not guilty, and demand a jury trial. When the prosecutor can't prove their case, they'll either dismiss it up front or a jury will find you not guilty. You will find it helpful to hire a local attorney to assist you in any jury trial.

It has been my pleasure to assist you today with your information needs. It is my goal that you are satisfied with your information needs. No expert can promise you an answer that is favorable to your circumstances. But I will do my very best to explain the legal principles that are related to the facts you’ve described so that you can better understand the “why” of things.

If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
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If you have other questions on different matters, you can ask me at http://www.justanswer.com/law/expert-jb-umphrey/. Or there are also other Experts ready to assist you in a range of Legal specialties, Veterinary, Cars and others – you can reach them via the www.justanswer.com homepage.
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Customer: replied 2 years ago.
Relist: Incomplete answer.
Obviously I will need to go to court and plead not guilty, the answer provided to me was relatively worthless.
Expert:  JB Umphrey replied 2 years ago.
Thank you for the follow-up.

Your question was: How can I fight this? Also, will this be publicized prior to the court hearing?

I answered the second question.

With respect to the first, I also answered that. As you know, the prosecutor has the burden of proof. From the facts you've described, the prosecutor doesn't have the proof. Thus, that is the reason your case will/should be dismissed / result in a not-guilty verdict. You do not have to prove your innocence.

Please clarify what additional information you are seeking.
Customer: replied 2 years ago.
What is the process that I take as far as requesting my case be dismissed? If I take it to court, should I request a jury trial? And what do I do when the prosecution inevitably makes the case that I was guilty because I 'smelled of alcohol' and that this is why I refused a breathalyzer?

Thanks, XXXXX XXXXX for my sharp tone earlier. As you can assume this is a stressful situation for me.
Expert:  JB Umphrey replied 2 years ago.
Yes, you go to court, you plead not guilty and demand a jury trial. Any trial will be held at a different time. At the end of the prosecutor's proofs, that's when a motion is made for the judge to dismiss due to lack of evidence. If the judge denies the motion, then you put on your defense (if any) and then the closing arguments are made and your argument is that the prosecutor has not proved its case beyond a reasonable doubt.

Of course this is a stressful time and that's another reason why you should hire a local criminal defense attorney to assist you.

If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
----------------------------------------------------------------------
If you have other questions on different matters, you can ask me at http://www.justanswer.com/law/expert-jb-umphrey/. Or there are also other Experts ready to assist you in a range of Legal specialties, Veterinary, Cars and others – you can reach them via the www.justanswer.com homepage.
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JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20232
Experience: Handling criminal and probation matters for over 14 years.
JB Umphrey and 3 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
If I am offered a plea bargain, say 3 or 6 months probation and then it is removed from my record, should I take it or take my chances in court?
Expert:  JB Umphrey replied 2 years ago.
If you did not consume and there's no tests or admissions to prove that you did, you have every right to press forward to trial.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
----------------------------------------------------------------------
If you have other questions on different matters, you can ask me at http://www.justanswer.com/law/expert-jb-umphrey/. Or there are also other Experts ready to assist you in a range of Legal specialties, Veterinary, Cars and others – you can reach them via the www.justanswer.com homepage.
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Customer: replied 2 years ago.
How fair do judges/juries typically look at these situations? Will I be taken as a smug pre-law student?
Expert:  JB Umphrey replied 2 years ago.
Each judge is different. If you do not want to be perceived as a smug pre-law student, then do not act like one. Just be on time, neat in appearance, and treat everyone with respect.
Customer: replied 2 years ago.
What is a typical legal fee for a defense attorney?
Expert:  JB Umphrey replied 2 years ago.
There is no such thing. Each attorney sets their own rates. They can range from hundreds to thousands of dollars, depending upon the attorney.

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JB Umphrey
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Handling criminal and probation matters for over 14 years.