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Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4500
Experience:  Almost 12 years of legal experience, primarily in criminal law
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we have a 16 yr. old grandson who was given a citation, for

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we have a 16 yr. old grandson who was given a citation, for underage smoking but he was not the one smoking. and we just cleared his recorded of previous smoking charges, how does a cop test for this? Is there a thing called invisible birthday candle test ? although the smell was on his clothes it was not on his breath due to a tounge piercing the same day. This is our only question.


So that I can best help you, was he cited with underage smoking or with possession of tobacco?
Customer: replied 4 years ago.

according to the citation it says as follows tobacco, or electronic cigarettes - unlawful for minor to use, posses, purchase or distribute

Customer: replied 4 years ago.
Relist: Other.
never got an answer yet
Customer: replied 4 years ago.

how much longer

Customer: replied 4 years ago.
Relist: Other.
just e-mail me my answer [email protected] because its 12:20 a.m. & I am going to bed now. g
Got tired of waiting for your answer so please just e-mail me. sincerely XXXXX XXXXX
I apologize. Your reply did not come through until after I had signed off for the evening.

Thank you for clarifying the charge. Because of the nature of the charge, the prosecution doesn't have to prove that he smoked a cigarette, merely that he was in possession of it. Possession does not just include what is in your hands, but also what is in your "area of control," essentially meaning anything that you have access to to grab. For example, if a woman is sitting in a chair and her purse is on the floor next to her, it is still legally in her possession even though she is not holding it. So if he or his friends had tobacco in their possession and they were together in a group, the police officer can technically charge all of them if the tobacco was in an area accessible by all.

However, it is defensible if the officer never saw him with the tobacco and it was not in a common area where he had legitimate, easy access. If they were sitting at a table and the cigarettes were in the middle of the table, his defense is harder than if say, the cigarettes were in another of his friend's pocket. The fact that he smelled like cigarettes doesn't prove he possessed or used tobacco, particularly if his friends were smoking in his presence. There is also the possibility that if the friends who actually were using/possessing the tobacco take responsibility for it, they might dismiss the citation against your grandson.
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