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Lissa M
Lissa M, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 98
Experience:  23+ years as trial lawyer, supervisor, mentor, lecturer
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my son got an underage drinking ticket his second, he is 20,

Customer Question

my son got an underage drinking ticket his second, he is 20, he blew .01 on breathalyzer,what should we do?
Submitted: 8 years ago.
Category: Criminal Law
Expert:  Lissa M replied 8 years ago.
Hi, I am an experienced criminal practitioner and may be able to provide some helpful information. What state are you in?
Lissa M and other Criminal Law Specialists are ready to help you
Customer: replied 8 years ago.
can't get an answer
Customer: replied 8 years ago.
what answer??? what a rip off!!!
Expert:  Lissa M replied 8 years ago.
Oh, I am so sorry, i meant to send that as an INFO request, not as an answer. clicked the wrong button. I'll send that Q back for answer. You might have waitd a bit before assuming the worst, we are real lawyers trying to help out with information at very reasonable rates, and everyone makes a mistake here or there.

The state would be important to know for this answr.
Expert:  Lissa M replied 8 years ago.
Hi, thank you for using JA. I am an experienced criminal defense practitioner and can offer some information. I apologize if I clicked the wrong button earlier, and will endeavor to get you the information you need.

No matter what state, a 2d offense right on the heels of the 1st is never a good situation. It demonstrates the the person isn't capable of following directions/court instructions; may have a larger drinking problem than expected; isn;t responsible/shows lack of judgment; and poses a risk to society by the behavior. The first offense was probably dismissed with a fine, but the 2d offense is more serious. As I understand it, it is an ";operation of a motor vehicle while under the influence of alcohol" ticket, 2d offense? If its not, it probably will be when it comes up in court, if the prior was also operating a motor vehicle while under the influence.

The campus action likely addressed the terms in which he could remain on campus and attend school, and perhaps some school-related punishment. The referral to the town court is likely for the criminal prosecution of this matter, and that said, your question has some overlap with student's rights and educational jurisdiction as well. It is possible that the University will forward the signed OWI to the criminal court for their use in the prosecution of your son for 2d offense operating under the influence. They may only intend to use it for campus related matter, but on a large campus and in a college community the campus security police will often work along with the local police. Students educated in private facilities often are not aware that they lose some of their rights if the live on campus's etc. This information would be with in any college handbooks or forms and waivers signed when your son enrolled. <br /> <br />

I would be concerned [If I am correct] that the campus police availed themselves of the opportunity to interview your son, acquire damaging information/statements; question him about the matter etc., without affording him any rights he may have been entitled to. I am not an educational law expert, but have seen many instances where private security police skirt the requirements of the 4th/5th amendment by doing things the city police may no be allowed. There may be a claim to be made that the campus police are agents of the local police for 4th/5th amendment purposes and subject to the same rules. Much will depend on whether you battle this out or plea bargain this for the best possible sentence.

With summer coming and school getting done, it might be a good step in the right direction to look into getting your son some serious help for the drinking. It will also preserve the investment you have made if you are financing his education . If you have health insurance and can arrange this do it. It may help him when it comes time for sentencing and will be one more thing for the lawyer arguing to keep your son on the street and in school. ALso, if there is anything unusual/aberrational about his recent drinking like, death in the family he took badly; girlfriend breakup, grades etc. be sure to let his lawyer know of it. If there is any history of ADHD, depression, medicine etc., let the lawyer know--the point is to arm them with anything that might be helpful in defense of your son or in pitching a plea to his benefit.

You will obtain a great deal more comfort/assurance in this if you talk to a local attorney asap. I have printed the statute below, but essentially, since he blew greater than .08 there is a minimum license suspension of 30 days. What is more concerning is that for a 2d offense, there is a minimum 5 days in jail, 6 mos-2 yr license loss, substance abuse treatment etc, and that's for starters.&nbsp;&nbsp;&nbsp;<br />

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IC 9-30-5-3 >Class D felony; previous convictions; passenger less than 18 years of age ;Sec. 3. (a) Except as provided in subsection (b), a person who violates section 1 or 2 of this chapter commits a Class D felony if: ;(1) the person has previous conviction of operating while intoxicated that occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of ;this chapter; or (2) the person: (A) is at least twenty-one (21) years of age; <br ;(B) violates section 1(b) or 2(b) of this chapter; and <br/>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(C) operated a vehicle in which at least one (1) passenger&nbsp;&nbsp;&nbsp;(c)

Notwithstanding IC 35-50-2-2 and IC 35-50-3-1, a sentence imposed under this section may not be suspended. The court may require&nbsp;&nbsp;&nbsp;that&nbsp;&nbsp;&nbsp;the&nbsp;&nbsp;&nbsp;person&nbsp;&nbsp;&nbsp;serve&nbsp;&nbsp;&nbsp;the term&nbsp;&nbsp;&nbsp;&nbsp;of imprisonment&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;in&nbsp;&nbsp;&nbsp;an appropriate&nbsp;&nbsp;&nbsp;facility at&nbsp;&nbsp;&nbsp;whatever&nbsp;&nbsp;&nbsp;time&nbsp;&nbsp;&nbsp;or intervals&nbsp;&nbsp;&nbsp;(consecutive&nbsp;&nbsp;&nbsp;or intermittent) determined appropriate by the court.

However:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (1) at least forty-eight (48) hours of the sentence must be served&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; consecutively; and&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (2) the entire sentence must be served within six (6) months&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; after the date of sentencing.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(d) Notwithstanding IC 35-50-6, a person does not earn credit time while serving a sentence imposed under this section. As added by P.L.2-1991,SEC.18.Amended byP.L.266-1999, SEC.3; P.L.32-2000, SEC.2; P.L.85-2004, SEC.48.
Expert:  Lissa M replied 8 years ago.
Sorry, I can't seem to get the statute to print without the coding, but hope this all helps.

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