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Brandon M.
Brandon M., Counselor at Law
Category: Criminal Law
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Experience:  Attorney
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I was arrested while walking to the local grocery store at

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I was arrested while walking to the local grocery store at 2:00am. The officer came over to my two friends and I and asked "Have you been drinking tonight?" I responded "I'd rather not answer any questions." This made him mad, and he said "I'm going to make an example out of you!" and promptly handcuffed me and put me in his cop car. As soon as I was in the car, I got my phone out and turned on the audio recorder. On paperwork, I was arrested for MIP, but I have him on tape saying minor in consumption of alcohol, as well as him forgetting to read my Miranda rights. I was never breathalyzed. They never did any sobriety tests. I had no alcohol or other illegal substances on me. My two friends were not arrested, although one of them had a backpack with several cans of beer in it. I feel like I was punished for trying to exercise my rights by not answering questions... Can I expect this case to be dropped without a problem?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Brandon M. replied 1 year ago.
Hello there:

Thank you for your question. Having only one piece of one half of the story, I can't responsibly estimate whether you will have your case dropped, so I should start by saying that because the nuances of every case are different, this information should not be relied upon as complete or advice without consulting in person with counsel. But that said, please allow me to discuss the law and perhaps that will shed some light on your situation.

1. A police officer only needs probable cause to believe that someone has committed a crime in his/her presence to effectuate an arrest, so an arrest with probable cause might be an abuse of discretion, but it wouldn't be illegal as long as there was probable cause. Allow me to emphatically state that you made the right decision to not answer his question. But yes, this officer is a jerk. Personally, I would complain to his supervising Lieutenant.

2. There is some overlap between MIP and MIC charges. I can't say whether an officer's oral misstatement would affect the outcome of any given case, but it normally would have no impact whatsoever. It would be similar to calling it "drunk driving" instead of "driving under the influence"--what ultimately matters is what goes on paper.

3. Miranda rights do not have to be administered in most arrests. The function of Miranda is to protect individuals from having their statements used against them while in police custody and while being interrogated. Miranda is only relevant if a suspect makes a statement while in police custody, while being interrogated, and the prosecution wants to use that statement against the suspect in court. If all of those elements are not met, the failure to administer a Miranda warning would have no legal consequence.

All of that said, there can be no conviction without proof of guilt beyond a reasonable doubt, and the failure to answer a police officer's questions generally cannot be admitted into evidence in court. So you're walking down the street and you are charged with MIP because your friend has beer in his backpack. Possession generally means that the defendant can exercise dominion over the paraphernalia and knowledge that it is there. What evidence is there that you consumed, acquired, or possessed liquor? May I safely assume that the backpack was closed? How do you prove beyond a reasonable doubt that you knew your friend even had beer in his backpack?

I don't know the strength of the prosecution's case in your specific matter for reasons previously discussed, but it's certainly possible that the case will be dropped when you appear in court, if not dismissed thereafter.
Customer: replied 1 year ago.

Thanks for the speedy reply. My friend opened the backpack and I watched the officer find the beer while I was in the cop car. I think he just made them pour it out.


 


If it is possession that they arrested me for, I certainly did not have any alcohol on my person. And without a breathalyzer test or any sobriety tests, it seems like they have no evidence of me committing any crime.



Lastly, on audio tape I asked "What makes you say that?" when he said I was being arrested for "basically MIP." He cited my balance and slurring, but I have 35 minutes of me talking perfectly fine and I was in the cop car within 60 seconds of meeting the officer, so there was almost no time for me to have balance problems, which I didn't. It felt like he memorized a list of vague reasons to arrest kids.


 


I guess what I really want to know is what constitutes sufficient evidence of MIP?

Expert:  Brandon M. replied 1 year ago.
Sufficient evidence is evidence of guilt beyond a reasonable doubt. If the evidence is presented and a reasonable person could doubt guilt, the defendant must be acquitted.
Customer: replied 1 year ago.

But specifically what constitutes reasonable evidence for MIP? If there was no breathalyzer test or sobriety tests, is it possible to be convicted?

Expert:  Brandon M. replied 1 year ago.
Hi again. Things are proven in court much like they are proven in life. How would you prove that you went to the grocery store today? You might show a receipt of purchase. You may have a credit card record. Perhaps you ran into someone at the store that recognized you and would remember your being there. Maybe you were issued a traffic citation outside the store's parking lot. You would also have groceries from the store in your home. The prosecution would have the opportunity to offer any competent evidence that they have and the defendant would have the opportunity to counter. The trier of fact--a person just like you or me--would consider the evidence and find guilt only if they believe a reasonable person could not doubt guilt.

Guilt can hypothetically be proven beyond a reasonable doubt without a breathalyzer or sobriety test. If you've ever seen someone stumbling over drunk, for example, you can know that they are drunk without a breathalyzer or sobriety test--their speech might be slurred, they would be unsteady on their feet, they would probably reek of alcohol, and you would likely have no doubt that they were very intoxicated by alcohol. But obviously, a case is easier to prove with breathalyzer results and a formal sobriety test.
Customer: replied 1 year ago.

Thank you. I promise I will accept your answer, but I may have another question or two. Say my two friends said I had been drinking, should I be worried? They weren't arrested or read their Miranda rights. The officer said I smelled like alcohol, but I could blame that on my two un-arrested friends who possessed beer. Let's say I was their sober escort and he smelled alcohol on them and assumed the smell was on all of us. That is a very reasonable argument, is it not?


 


If I let him spew some exaggerations/lies in court and then spring my audio recording on him to contradict what he said, would that be reason to drop the case? Say he cited me slurring, and I played the tape, on which he tripped over his own words several times when I asked why I was being arrested, while I hardly stuttered, if at all. Is that not evidence that he may have been intoxicated, based on his own logic? Or at least evidence that he is a liar?


 


Should I be worried about being convicted? Is there any way I could counter sue the state? I'm pretty upset about this whole situation.

Expert:  Brandon M. replied 1 year ago.
1. "Say my two friends said I had been drinking, should I be worried? They weren't arrested or read their Miranda rights. The officer said I smelled like alcohol, but I could blame that on my two un-arrested friends who possessed beer. Let's say I was their sober escort and he smelled alcohol on them and assumed the smell was on all of us. That is a very reasonable argument, is it not?... If I let him spew some exaggerations/lies in court and then spring my audio recording on him to contradict what he said, would that be reason to drop the case? Say he cited me slurring, and I played the tape, on which he tripped over his own words several times when I asked why I was being arrested, while I hardly stuttered, if at all. Is that not evidence that he may have been intoxicated, based on his own logic? Or at least evidence that he is a liar? "

A. I understand wondering what the outcome of your case might be, but there is really no end to the scenarios that could be imagined. It is important to your sanity to recognize the limitations on what information you have at this time and to be content knowing that you will have more information later. You haven't even made your first court appearance yet, or even seen the police report. Take it one step at a time. Get to the first court date and see if the prosecution is even interested in pursuing this matter when you get there.

 

2. "Should I be worried about being convicted?"

 

A. We don't have enough information to estimate your chances of being convicted. It's too early in the process. For all we know, this will get thrown out at your first court appearance.

 

3. "Is there any way I could counter sue the state?"

 

A. Possibly, but a malicious prosecution lawsuit generally can't be considered until after there has been an outcome in the defendant's favor.

Brandon M., Counselor at Law
Category: Criminal Law
Satisfied Customers: 12237
Experience: Attorney
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