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Hi Elmora,Sorry for the delay. I had to walk my dog.I'm assuming that you were ticketed by an MTA officer for a violation of the City's MTA regulations. The one that applies here is section 1057(g) of the Rules of Conduct. This is the "disorderly conduct" statute. It reads as follows:"No person on or in any facility or conveyance shall:(g) drink any alcoholic beverage or possess any opened or unsealed container of alcoholic beverage, except on premises duly licensed for the sale of alcoholic beverages, such as bars and restaurants"This is an infraction rather than a crime. That is to say, it is less than a misdemeanor and a plea of guilty will not give you a criminal record. In fact, it would seal automatically by operation of law if you stayed out fo trouble for a year. I'm not suggesting that you plead guilty. I'm telling you that you can't get hurt too badly if you wanted to fight this case. It will seal win or lose and your maximum risk is $25 and/or 10 days in jail. Either way you could say that you have never been convicted of a crime.Generally, with an offense like this, you could ask the judge for an adjournment in contemplation of dismissal for something like this. An ACD does not require a guilty plea. It is a conditional dismissal. If the judge agrees to let you have one, all you have to do is stay out of trouble for 6 months and it seals by operation of law. With an ACD, you can honestly say that you have no criminal record.If you wanted to fight it, the best way would be with a lawyer, but if the police officer took the can and confiscated it without marking it as evidence, bagging it, and protecting the chain of custody, you have a good case.You don't have to be intoxicated, as you can see, to be charged with this offense, so a breathalyzer isn't necessary. But it is incumbent upon the state to be able to prove that you had an open can of an alcoholic beverage in order to convict you. So if he didn't save the can, they are not going to be able to meet their burden of proof beyond a reasonable doubt. And of course, if they do produce the can, it ought to say it's a non-alcoholic substance.
If you just ask the judge if you can have an ACD, you may very well be able to get that without a lawyer. If not, you could choose between trying the case without an attorney or just pleading guilty to the violation and paying the $25. With an offense of this type, lots of folks don't bother with a lawyer, so you should be taken seriously. However, there may even be a public defender in the courtroom to stand up with you and help you along.
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