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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17343
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was drinking a can of non-alcoholic ale on the subway and

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I was drinking a can of non-alcoholic ale on the subway and a cope gave me a fine without using a breathalizer, just because I was too stupid to stand up for myself and let him threaten me and violate me all the way into a ticket. I pleaded not guilty. Court is on 11/22. Can I win it based upon that he didnt use a breathalizer to test me or the drink or will de devil win again?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.
Hello and thank you for requesting me.

What was the section of the law with which you were charged? Were you alone on the subway, or did you have witnesses? What happened to the can?

Please use the reply tab below to respond.

Thanks.
Customer: replied 1 year ago.
Section of the law? Hmmm.. The ticket just said open alcholic beverage container. The fine was $25. No witnesses I was alone. The can was thrown into the garbage by the cop and the can was never to be seen again, then I went on my way. I lost the ticket all I know is that the court date has been set for the 22 of november because I went to the online criminal court webpage system and looked up my name and found it. I have never had any trouble with the law in my life (Im 30) and this is pretty silly. My record is crisp clean and I want to keep it that way. He didnt use a breathilizer and I did not consent to any searches.

Please help, Im afraid they will try to intimidate me in court out of my ignorance of the law. Thanks.
Expert:  Zoey_ JD replied 1 year ago.

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.

Customer: replied 1 year ago.
Wow, Fran, you are AMAZING. But I can't afford a lawyer, is there any way the judge will take me seriously if instead I just use everything you told me to my benefit, and present it to the judge, I don't mind just being extra careful(like not spitting in public!) for 6 months or even forever(I'm not used to breaking laws, I just thought it was a "free" country sometimes.)

I'll be more careful with my liberties in the future and how to exercise my freedom as to avoid this kind of silliness. Thank you Fran, I will definitely rate you 100%.
Expert:  Zoey_ JD replied 1 year ago.

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.

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17343
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.