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Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
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Experience:  Lawyer
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Hello! Background: (My record consists of several speeding

Resolved Question:

Hello! Background: (My record consists of several speeding tickets over the years (very few points on my record now) and a owi around 6 years ago)
I am going to court tomorrow (its the pretrail conference at 36th judicial district ,XXXXX detroit Mi) for a open intox ticket and need some legal questions answered. Here is the situation: Myself and another person were walking down a street (we just left a bar and were about 100 ft from it) in downtown detroit with two plastic cups of liquid in our hands on st patricks day. A policeman pulled up to us, asked us a few questions ( where were we coming from, is there alcohol in our cups) without getting out of his car. I answered that the cup contained no alcohol and we just came from the bar down the street. He didn't believe us and issued the open intox tickets. He told us to pour out the liquid, did not check the cups for the type of liquid and we kept our cups and threw them out. So I have several questions:
1. My defense is that he did not do a proper verification of the contents in the cup and a improper investigation of the situation ( he didn't even get out of his car). Is there a law in Michigan or some stat chute that states that he has to verify what liquid is in the cup? Did he do a proper investigation?
2. When issuing a open intox ticket, what is the exact stat chute number that this ties to so I can look it up and tie an argument to it
3. They offered me a plea deal that consisted of pleading guilty. I would be on probation for 1 year and then they said it would be dismissed, however when I asked the judge when the ticket is dismissed a year later if it is removed from the state and federal databases she said no It cannot be and they do not have the power to do that. I refused the plea deal as I do not want this showing on my record. Is there a lesser charge plea deal I could ask for that is non alcohol related to where they can still get their money? I would rather not take this to trial if I can avoid it (I was found guilty of a drinking and driving offense (owi) about 6 years ago and did not want another alcohol related offense tied to my record)
4. Also, What "verbiage" do I say to the judge to ask for a dismissal of the case due to the witness not showing? I'm going into the pretrial and I'm hoping that the police officer that issued the ticket does not show. The judge may not allow it because this is just the pretrial I'm guessing but as I go on to the main trial he may not show and I want to ask for the case dismissal properly.
5. If the witness does show, what questions should I ask him?
6. Any other advise or is there a better argument/ approach I could use?

Thanks so much!!!
Eric
Submitted: 10 months ago.
Category: Legal
Expert:  Lucy, Esq. replied 10 months ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today.

1. If he's going to charge someone for carrying an alcoholic beverage down the street, then he should at least smell or look at the contents of the beverage yes. He clearly didn't have it tested for alcoholic content - it could be very difficult to prove beyond a reasonable doubt that you were carrying alcohol in an open container if you and your friend can establish that he didn't take any steps to determine what was in the cup.

2. There are different statutes that you could be charged with - the ticket should state which one it is, or you could call the clerk of the court to ask what the court records say. Detroit Municipal Code, Section 38-5-1 defines disorderly conduct to include consuming alcohol in public, so that could be it. The general open container law refers to open containers in motor vehicles, so that shouldn't be it.

3. Any violation of the Detroit Municipal Code is a misdemeanor, so there wouldn't be a lesser included offense with that. You'd have to find out which statute they charged you with to be sure.

4. There isn't a specific phrase that has to be used. All you would have to say is that you'd like to move to dismiss the charges, because the prosecution cannot prove the case without a witness. If they try to introduce the ticket, you can object because that's hearsay.

5. Primarily, you would question on whether he smelled the beverage or tested it. Ask why he didn't confiscate it to determine what it was. If he says that he could smell it from a distance, ask if he can ordinarily detect alcohol from a couple of feet away. It's possible that he smelled alcohol on the two of you since you'd just left a bar, and assumed that there was alcohol in the cup. If you can determine that there was some other reason for the smell or that he didn't make any effort to verify the liquid in the cup, that may be enough to establish reasonable doubt. If you were only carrying the cup and not drinking it, that might also be something you can ask about. You could also ask about general procedures for verifying whether a beverage is alcohol and inquire why those weren't followed.

6. Two witnesses are better than one. It may help to get the other person to testify that the officer didn't check to see what was in the cup. But, essentially, the way to win is to establish that the officer had no idea what was actually in the cup and he just assumed it was alcohol.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 19651
Experience: Lawyer
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