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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27479
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Can i Get out of this MIP

Resolved Question:

Can i Get out of this MIP
I was on my way to college and got pulled over. The cop told me to go to the front of my car and then started going threw my car looking for "something" without asking me or anything. He dug long enough to find a bottle of hard alc. in back seat that was not full. He then gave me a ticket for open container and MIP. my BAC was .000%
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 6 years ago.

You don't have to drink any of the alcohol to be convicted of an underaged drinking offense. The mere possession of it is enough as you can see from SD Codified Laws:

35-9-2. Purchase, possession, or consumption of beverage by person under twenty-one years prohibited--Exception--Misrepresentation of age--Violation as misdemeanor.

It is a Class 2 misdemeanor for any person under the age of twenty-one years to purchase, attempt to purchase, or possess or consume alcoholic beverages except pursuant to § 35-9-1.1 or when consumed in a religious ceremony and given to the person by an authorized person, or to misrepresent his or her age with the use of any document for the purpose of purchasing or attempting to purchase alcoholic beverages from any licensee licensed under this title.

A class 2 misdemeanor in South Dakota carries a penalty of up to 30 days in jail and /or a $500 fine. That would be your maximum risk if you took this case all the way to trial and lost.

Additionally, for a first offense under the above statute , your license can also be suspended for up to a year, thouth there would be a hardship license available to you. See 35-9-7
In answer to your original question, the particular charge is a strict liability offense -- a zero tolerance crime. If you're under 21 and you've got alcohol in your possession you can be convicted of this crime.

The state does have diversion programs for underaged drinkers which vary slightly from state to state but basically involve fines, community service, anti-alcohol awareness classes and a brief period of supervised or unsupervised probation. At the end of this, if there have been no further problems with the law, the case gets dismissed and would then not give you a criminal record. In order to take advantage of a diversion program, you would have to agree to this almost immediately. Once you turn it down and start appearing before the judge, it is no longer an option. Other non-jail offers would be, but they won't necessarily seal your record.

You do have a potential search and seizure issue. It is not clear why the police stopped you or if he had the authority to search your car. You could challenge the stop and the search, but you would have to choose to try the case and turn down a diversion (and any other) offer. Because the way to challenge the constitutionality of a search is to move for a pre-trial suppression hearing.

The US Supreme Court has said that to determine whether someone's rights are violated, a hearing must be held, as what's proper or not has to be decided on a case-by-case basis according to what a reasonable police officer would do under all the circumstances. These hearings are hard to win, but essentially, the prosecutor would call the police to the stand and get him to explain the stop and the search with a view towards showing that everything the police officer did under the circumstances was reasonable. Then your lawyer (you are a criminal defendant and should have one) would get the opportunity to cross-examine the officer to show just how unreasonable his actions were. The judge would then decide whether your rights were violated.

If the judge determined that the police behavior was unreasonable and in violation of your constitutional rights, the alcohol could not be used against you, and the case would have to be dismissed. If the judge determined that the police behavior was reasonable under all the circumstances, the evidence comes in at your trial, and you'd have no defense to the charge and you'd have already turned down the best deal you were going to get.

As indicated before, you should have a lawyer. He can probably negotiate a disposition where you come out of this without a record. Or, once he hears everything from you in detail, he may think you can win a suppression hearing. Again however, if you lose the hearing you will almost certainly lose the trial. If you lose the trial, you do risk some jail time.


Edited by FranL on 11/2/2010 at 1:00 AM EST
Customer: replied 6 years ago.
I was stopped for speeding? The officer told me that i was driving 40 in a 30 which is wrong it was 35mph speed zone. When i got into the car his radar showed no evidence of me going 40mph and the ticket showed no actual speed. I was wrote a warning for speeding.
Expert:  Zoey_ JD replied 6 years ago.

Sorry for the delay. I had to take my dog out. If the officer claims that you were speeding, that would give him a legitimate basis to stop your car. From there, he'd be allowed to ask for your identification and detain you briefly. Depending upon what may have happened during the time he was speaking to you, he may have acquired a basis to conduct a further inspection of the vehicle which, in turn led to his turning up the alcohol. Or, apart from the stop itself, the officer may have been way out of line. It comes down to the same thing. You'd need to have a hearing to find out.

Every defendant has two choices when charged with a criminal offense. He can take a plea offer or he can fight the case all the way to trial. What a lawyer would be able to do would be to inform you of all of your rights and choices so that you make an intelligent decision. The alternatives you're going to have will exclude each other. That is, the best deal you're going to get would be a diversion opportunity, and if you take that, you can't challenge the evidence. If you challenge the evidence you may or may not get it suppressed. There's no such thing as a defense slam dunk when it comes to a suppression hearing. If you win, your case gets pitched. If you lose you can't get diversion. You will likely get some jail.

You will need a lawyer to look at the court papers and any discovery material he can get and to confer with the prosecutor so that you can weigh your choices correctly and know what to do. You may have a defense to the speeding but that's not your big problem here. Speeding infractions do not go on your criminal record. The MIP can.

Edited by FranL on 11/2/2010 at 2:34 AM EST
Customer: replied 6 years ago.

Do you think it is worth trying to fight it? If i could prove that he didnt have a good enough reason to search my car could i get out of the MIP. Car never smelled like alc. I never smelled like alc.

Expert:  Zoey_ JD replied 6 years ago.
If you can win a suppression hearing -- demonstrate that the police didn't have the right to search your car without probable cause and/or a warrant -- you can get the case tossed. But like I said initially, if you lose the hearing you're stuck with a strict liability charge. You have no defense to having alcohol in the car if the search is upheld.

If you were offered a guarantee that you could walk away from this case without a criminal conviction, versus a "maybe" you could win a hearing, on a case like this, I'd probably recommend the guarantee (unless you could agree to get the prosecutor to keep that deal open until after the hearing).

But please remember, I'm just going with the odds. I am not privy to any of the information I'd have if I were actually representing you on your case.

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