Criminal Law Questions? Ask a Criminal Lawyer.
The officer may say that he smelled alcohol on his breath and if asked point blank if he had been drinking then he would have to say yes. in 3 months he will be 21 and there would be no offense at all as he was walking on the beach with friends.
He believes that they will ask him to pay a fine not sure if there is a plea involved or if it is considered a misdemeaner? If it is a misdemeaner does he end up with a record?
Your son does not need to testify against himself. It is the officer that must present evidence. The officer smelling alcohol is probably not enough to obtain a conviction, As the prior consultant stated ( and he should receive credit for his answer) the State must prove the allegation beyond reasonable doubt. The problem you may have is what your son admitted to the officer at the time of arrest.
Secondly I would recommend contacting a criminal lawyer in your area . Many jurisdictions have a diversion program for first time offenders. It is a type of probation where after paying a fine and potentially community service the charges are dropped. It does require a plea of guilty. If you cannot afford an attorney you may be able to speak with the prosecutor at the first pare-trial to see about a diversion program. At the completion of the diversion program the record can be is expunged so it will not plague him later.
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florida has a juvenille age status offense since he is over 18 but under 21 does it apply
I was hoping to have a bit more information before proceeding. However, it has grown late and I intend to sign off very soon. So, I'll respond with the information I have thus far. If anything requires clarification, please let me know. Regardless...
As to probable cause, this is actual a very low standard, much lower than the "beyond a reasonable doubt" that we see on tv and in movies all the time. Essentially, this just means that the officer must have some modest amount of evidence to support the arrest. If he observed a person that he believed to be under 21 and he suspected the person had consumed alcohol, he likely met his burden of probable cause.
As to the lack of a breath test, can tell you that this is not unusual in Florida. I have worked as both a prosecuting attorney and a defense attorney in Florida for over 15 years. In that time, I have handled several hundred underage drinking cases. Of those, probably around 10% had a defendant that was given a breath test or field sobriety exercises. These items are routinely involved in DUI cases, not so much for underage drinking cases.
As to his plea, while probable cause was likely present, beyond a reasonable doubt may be a tough burden for a prosecutor. Meaning, based on what you have stated thus far, it is possible that the charge could not be sustained in court. Additionally, Florida has a pre-trial intervention (PTI) program for misdemeanor offenses. PTI is offered to defendants with relatively innocuous offenses and with little to no criminal history. PTI is much like probation in that it involves classes and community service but it is hugely different from probation in that it leads to the charges being dismissed.
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