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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16323
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My son is 19 years old and was at a party in which everyone

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My son is 19 years old and was at a party in which everyone under 21 got arrested and charged with possession and consumption . No breatherlyzer was given or phone call . I realize it is Ga law now . My son along with several others were not drinking and still got charged . My son is In college out of state and has to go to probate court . We really can't afford a lawyer but we may have to . I need to know what I'm up against and is there a way out. Of this mess . If anyone has lots of experience in this area please help . My son has learned a lesson that I hope last him a lifetime .
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.
Hi Jacustomer,

Your son was charged under a legal fiction called "constructive possession." That is, if he underage and at a party where alcohol was very available and he was situated so as to have access to it just like any of the other drinkers, there's a presumption that he was drinking too. It's not necessary that he be breathalyzed. It's enough that he's attending the event.

The presumption can fall depending on what the evidence shows, if he wants to fight the case, and it's tougher for the state to win without concrete evidence that he had been drinking or that he had, say, a can of beer in his hand at tthe time of the arrest.

Legislators know that most teenagers sooner or later experiment a bit with alcohol, and while they want to discourage it, they don't want to ruin a kid's life.

If your son has not been in legal difficulty before, he's going to be eligible for a diversion program that Georgia offers. That's a special kind of supervision where the accused would plead guilty and agree to perform some community service, pay a fine, attend an alcohol awareness class during a period of supervision. Following this, if he did what he was required to during his supervisory period and had no further difficulty with the law, the charges against him would be dismissed so that he wouldn't have to carry around a criminal conviction for the rest of his life. It's a pretty good deal and while it's not automatic, if your son has no criminal record, he's going to be eligible for it.

Here's the statute under which he was charged. As you see, it's a misdemeanor He can ask the court for a public defender if he is without funds. The lawyer can negotiate the diversion program if he's interested, or he can help your son to fight the case.




probation, a fine, completing an alcohol awareness class, performing community service and other terms and conditions. - See more at: http://www.gainesvillegalawyer.com/under-21-alcohol-possession-under-age-consumption-of-alcohol-minor-in-possession-of-alcohol/#sthash.8tHHwyWh.dpuf
probation, a fine, completing an alcohol awareness class, performing community service and other terms and conditions. - See more at: http://www.gainesvillegalawyer.com/under-21-alcohol-possession-under-age-consumption-of-alcohol-minor-in-possession-of-alcohol/#sthash.8tHHwyWh.dpuf
Customer: replied 1 year ago.
Would it benefit him to start a alcohol awareness program now and community service . He is out of state at college in which he is on the baseball team . He has been doing community service
Expert:  Zoey_ JD replied 1 year ago.
Hi George,

It certainly can't hurt, as it will show the court that he has accepted responsibility for his actions and is looking to change. However, whether the court would be willing to accept that is another matter. In other words, if they give him diversion, they may still require that he take their class and perform community service with their contacts, because their programs report to the court and there's no possibility of faking attendance.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16323
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 11 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.
I was curious if my son represents hisself and pleads guilty and also is the first offender a. Better option
Expert:  Zoey_ JD replied 1 year ago.
Hello George,

A defendant who pleads guilty without knowing in advance what he's getting for his plea, gets a conviction to have on his record. You don't want your son to have a misdemeanor conviction if he can avoid it, because Texas will not expunge convictions, unless they involve diversion agreements.

He should plead not guilty and work something out with the prosecutor IF the prosecutor will negotiate with him. Many times DAs will not deal with unrepresented defendants because doing so can backfire on them

So if the DA is willing to give him a diversion opportunity which would get the charge dismissed at the end of some community supervision, that's great. Then if he wants to get rid of the case, he knows he won't hurt himself. But if the DA won't speak to him or if he will speak to him but won't give him a diversion opportunity, then he should plead not guilty and ask to come back with a lawyer.

Since his possession is only constructive, this may be a case he wants to fight or a case where a lawyer can get him an outright dismissal. He's giving up those possibilities by representing himself.
Customer: replied 1 year ago.
I'm sorry but this is in Ga . Is it the same answer
Customer: replied 1 year ago.
The first court date is Sept 3 and it will be probate court
Expert:  Zoey_ JD replied 1 year ago.
Hi,

I'm very sorry. I just answered several follow ups from someone in Texas whose son got arrested for the same thing and I thought that this was another of his follow ups.

Yes, though, it's still basically the same. Georgia has a diversion option for minors caught with this. And while he could likely just get first offender treatment, if he is ever arrested for anything else ever again, he might wish he didn't opt for it for something that could be dismissed anyway with a diversion dispostion.

Hopefully he won't get arrested a second time for anything, but as there's no guarantee, he may be better off with the diversion now. These kinds of subtleties is why a lawyer is always a good idea.
Customer: replied 1 year ago.
Is this first court date at probate court just to let you know the charges against you are can everything be settled that day.
Expert:  Zoey_ JD replied 1 year ago.
Hello,

There's no way I can predict the future, but in general a case like this can be wrapped up on the first day -- at least in terms of getting an offer and accepting it. That's assuming that the state has its paperwork ready in the court which is usually, but not always, the case.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16323
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 11 other Criminal Law Specialists are ready to help you

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