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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23593
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My 19 year old daughter, going to College in Portland was

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My 19 year old daughter, going to College in Portland was sitting with her friend waiting for the Uber to pick them up at 2am on a Sat. A police officer pulled up and began yelling at them about being part of a party, they were evidently called about. The 2 girls were sitting a block and a half away quietly on the curb. The girls said they were just waiting for their Uber and they got up and began to walk away from the direction of the party. (they never said they were at the party or drinking) The cop chased after them yelling that they needed to walk the police up the street toward the party. He was calling them stupid little teen girls and demanding they turn around. The girls were scared to death and had always been taught to comply with law enforcement. Frightened, the girls complied and walked the way the police wanted them to. When they got to the door of the party, the policeman told them to take A breathalyzer test. When the test came back for Natasha .04 alcohol level they gave her a minor in possession ticket.
These girls come from a small town where we teach our kids to respect law enforcement. They are both honor role students. They had no idea they didn’t have to say anything or even do what the officer was yelling at them to do. If the girls had not complied with the officer and would've continue to walk away the other direction the cops would not have had the right to insist on a breathalyzer test. In my opinion they clearly abused their power. Is there anything in the law that protects them? Can we fight this at all? Even though, they admit to having a drink.

Hi,

I'm Zoey and I'll be assisting you. I'm reviewing your question now. Please be patient while I research and compose a reply for you.

Police in college towns have their own ways of learning about the locations of parties where underaged drinking is likely to occur. It's not unusual for them to lay in wait for minors who straggle from the party.

A police officer has the right to stop people walking on the street and to ask questions or to ask to search them. Your daughter could not have just ignored the officer altogether. That said, she did not have to admit to any drinking, nor did she have to agree to follow the officer back to where the party was. She could have asked if she was free to leave, and if he said yes, to have gone at that point.

Underaged possession or consumption of alcohol is a strict liability offense. That is, they don't have to be drunk in order to be charged with a crime. They don't even need to have been drinking at all, if they are found at a party where they could have had alcohol. If they're found elsewhere, any amount of alcohol in their system can get them charged.

Can your daughter plead not guilty despite having admitted to drinking? Yes. She has the right to go to trial if she wants to take the case that far, and to do that she must plead not guilty, which is an option available to all criminal defendants, whether or not they actually committed a crime. Our constitution allows every criminal defendant who wants to to put the state to its proof and try to prove guilt beyond a reasonable doubt.

If your daughter does this, her attorney (she should have one if she expects to win a criminal trial) can ask for a hearing to challenge the stop and her statement. If she wins the hearing, the case can be dismissed. If she doesn't, she will likely end up with a criminal conviction on her record, because the breathalyzer results and her statement will come in and that doesn't give her a great chance of success at trial.

Typically, however, this case won't get to trial. On a first arrest of this sort for a minor defendant, your daughter will likely be steered into a diversion program. That's where she'd spend a period of time on supervision during which she'd have to stay out of further trouble with the law, refrain from drinking and drug use, perform some community service, pay some fines and take anti-alcohol classes. Upon completion of all of her conditions, all charges would be dismissed so that she could walk away without a criminal conviction.

Customer: replied 1 month ago.
Thank You. To clarify she never admitted to anything. (drinking or being at the party).
Question: so if she wanted to do the diversion program would she plead "No Contest"?
What's the difference between No Contest and Guilty?
In Oregon I have heard a 19 yr old MIP 1st time automatic drivers License revoked (taken away for a year) is this true??

A plea of no contest has the same consequences as a plea of guilty. That is, it results in a conviction for the crime. The only advantage is that a no contest plea, cannot be used in civil court as an admission of guilt while a guilty plea can. As your daughter is not going to be sued and end up in civil court for this offense, there is no real advantage to a no-contest plea over a plea of guilty, except she may feel better if she doesn't have to admit guilt on the record.

Yes, the judge can require a year's suspension of her driver's license. But her lawyer can petition to withdraw that suspension or help her to get a hardship license that would allow her limited driving privileges during the year of the suspension.

If you require additional information, please post your follow up here on this question thread, and I’ll be happy to provide it.

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