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Brandon M.
Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12237
Experience:  Attorney experienced in numerous areas of law.
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My son was caught drinking at a party. He is 18. The party

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My son was caught drinking at a party. He is 18. The party was in the country and the city cops busted the party. They made the kids blow and give them their names and phone number. My son didn't have to sign anything and never received a ticket the night of the event. Now a week later the sheriff came to deliver paperwork for a minor. Is this legal? Could anyone have given my son's name to the cops, like hear-say ?
Submitted: 1 year ago.
Category: Legal
Expert:  Brandon M. replied 1 year ago.

Brandon M. :

Hello there.

Customer: hello
Brandon M. :

Hello, thank you for your question.

Brandon M. :

In which state did this occur?

Customer: South Dakota
Brandon M. :

Thank you for that information.

Brandon M. :

Has your son been given a court date?

Customer: I suppose it is on the paperwork but he hasn't picked it up yet. My son was working when the sheriff came to give it to him and he wouldn't leave it with me since he is 18.
Customer: So I don't know
Brandon M. :

That's ok. I was just asking to allow for me to provide to you the most complete answer possible.

Customer: Ok
Brandon M. :

You mentioned that the party was in the country, so I would presume that you mean it was outside the city limits of the cops who "busted" the party. May I assume that the city cops were from a South Dakota city?

Customer: Yes the is correct.
Brandon M. :

Thank you. There are several components to your question. I will try to address them all.

Customer: Are you still there
Brandon M. :

I should start by saying that because the nuances of every case are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, the first question is basically whether local law enforcement officers have the power to issue citations or otherwise enforce the law in their official capacity when outside their jurisdiction.

Brandon M. :

Yes, I am still here. Can you see this?

Customer: My screen went back to the beginning.
Brandon M. :

I'm sorry that you experienced that. Has the problem been corrected?

Brandon M. :

Since it appears that you have experienced some technical problems, I will wait around 1 more minute for confirmation that you can see this. If I do not hear from you in that time frame, I will switch formats. The new format will resolve the problems, but it will cause the exchange to be slightly slower. Thank you for your patience.

Customer: I'm back
Customer: Are you there?
Brandon M. :

Great. I'm very glad.

Brandon M. :

Yes. I'm sorry that you experienced that technical problem. Can you see this?

Customer: Yes
Brandon M. :

Great. I just started to answer your questions before you experienced your problem. To ensure that you receive the entire message, I am going to repeat some of what I had written.

Customer: That would be good as I didn't see anything prior.
Brandon M. :

There are several components to your question. I will try to address them all. I should start by saying that because the nuances of every case are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, the first question is basically whether local law enforcement officers have the power to issue citations or otherwise enforce the law in their official capacity when outside their jurisdiction. Within the state ,the answer is generally "yes". It is pretty common for local governments to contract with the law enforcement agencies to provide services, especially in rural areas, and the law enforcement agencies are additionally able to enforce the state's law anywhere in the state. Cops will usually stay within their jurisdiction simply because their community is not paying them to enforce the law elsewhere, but it is pretty common to see them venture elsewhere for calls in rural communities because there is a contract for them to do so.

Brandon M. :

The contracts help the local agencies afford more full-time staff, and the rural communities get the benefit of a police force without having to pay for the creation or maintenance that goes along with it.

Brandon M. :

So, in short, it typically wouldn't alarm me at all if a city police officer responded to a call outside his/her city, as long as it was within the same state.

Brandon M. :

Except for serious felonies, the statute of limitations for prosecution in South Dakota is generally 7 years from the commission of the crime. Law enforcement never has to effectuate an arrest or issue a citation on the date of the crime. It can done up to 7 years after the occurrence. Law enforcement will usually not wait 7 years because evidence fades, witnesses retire or die, and also because it usually doesn't promote justice to cause extreme delays. But one week after the fact is very common for minor offenses.

Brandon M. :

You mentioned that anyone could have given your son's name to the cops. You are absolutely right, but that is actually not your son's problem---it is law enforcement's problem. Unless guilt can be proven beyond a reasonable doubt, your son can't be convicted.

Customer: So should he fight this ticket?
Customer: He didn't even provide an ID
Brandon M. :

Law enforcement only needs probable cause to believe that a crime was committed in order to prosecute a case, but actual guilt is decided by the court, and the court will not find guilt unless it is proven beyond a reasonable doubt.

Customer: So what would you r
Brandon M. :

Nobody can answer that question without seeing the evidence. Right now, your son hasn't even been summoned to court. If he is charged criminally, he has a right to plead not guilty and to examine the evidence against him. If it appears that there is enough to prove his guilt beyond a reasonable doubt, he has the option to change his plea to "guilty" at any time. Of course, even if the evidence appears to be overwhelmingly against him, he is free to hold the prosecution to their obligation of proving his guilt before the court.

Brandon M. :

What I would do is wait to get summoned to court. On the first day of court, I would typically plead "not guilty" and have the evidence examined by an attorney (if I wasn't an attorney myself).

Customer: Be he were to plea guilty or not guilt would he get a chance to see the evidence?
Brandon M. :

I do apologize, but I'm not sure that I understood the question. Could you rephrase? I do apologize.

Customer: Once he gets his ticket, is there time for him to see the evidence and review it with an lawyer before he were to plead guilty or not guilty? Or does he need to plead one way or the other before he sees the evidence ?
Brandon M. :

The evidence against a defendant cannot be viewed until after the defendant has entered a plea. A plea is entered at the first court appearance. If the defendant pleads "guilty", that effectively ends his case, so there is generally no right to view the evidence (and doing so would be pointless anyway) if a guilty plea is entered at the first hearing.

Brandon M. :

So if a defendant wants to view the evidence against him, that typically means pleading "not guilty" at the first court appearance.

Brandon M. :

After pleading "not guilty", a new court date is set so the defendant can have time to consult with counsel and review the evidence.

Brandon M. :

In fact, the only thing that typically happens at the first court appearance is that the defendant enters a plea.

Brandon M. :

Does that make sense?

Customer: Yes I understand. Then once he reviews the evidence with a lawyer then he could plead guilty, if the evidence were to support his not guilty plea. So, if there a penalty or unfavorable things held against him if he first plead not guilty and then plead guilty?
Brandon M. :

Is this your son's first offense?

Customer: Yes
Brandon M. :

It's not that the prosecution can't ask for a harsher punishment if the defendant doesn't plead guilty right away, but that almost never happens. The prosecution tends to react if the defendant is wasting their time or resources, but pleading not guilty to review the evidence is very normal.

Brandon M. :

If your son filed a bunch of meritless motions, the penalty might stiffen, but just pleading not guilty to review the evidence typically wouldn't even raise an eyebrow.

Customer: Okay. Well you gave us some things ton think about. I would also like to ask if the officers knows the kids and it ends up being his word against my son's; is this a battle that a judge rules on or does it go to a jury?
Customer: Are you still there?
Brandon M. :

It actually depends. In South Dakota, a charge of Minor in Possession (MIP) is a class 2 misdemeanor. There is a right to a jury trial for class 2 misdemeanors in South Dakota unless the judge tells you in advance that you will not receive jail time.

Brandon M. :

You can also waive a jury trial in favor of a bench trial (a judge decides).

Brandon M. :

For a first time offense, you would typically not be in danger of jail time for a MIP, so it's quite possible that there would be no jury if it went to trial.

Brandon M. :

Before we move on to the next question, I would just like to verify that everything I have been able to answer everything to your satisfaction up until now. Has all of this information been helpful?

Customer: Yes it has, Thank you!
Brandon M. :

Great. Did you have any other question?

Customer: I think I just have one more question.
Customer: If it is a bench trial, a policeman's word against a 18 year olds; it would be likely that the judge would rule in the police favor? In your past experiences.
Brandon M. :

Well, it's case specific. There are really only two reasons that the word of the police and the defendant would vary. Either (1) someone is lying, or (2) there is a difference in perception.

Brandon M. :

If it is a question of honesty, the court will usually believe the police officer over the defendant.

Brandon M. :

If it is a question of perception, that's easier to attack.

Brandon M. :

For example, if it can be shown that the police officer does not remember the events clearly, that usually makes it easier to undermine the state's case than just saying that the officer's information is false.

Customer: Okay I think I'm out of questions.
Customer: Thank you very much for your consult.
Brandon M. :

It was my pleasure. I wish you the best.

Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12237
Experience: Attorney experienced in numerous areas of law.
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