hlep_is_needed said:
I am a 18 yr old college student. Saturday night before Halloween some friends of mine were leaving a party and I had a empty solo cup in my hand that had contained beer, as we were about to approach the police outside in an alleyway right outside of the party I told my friend there were cops so he told me to pass the cup to hide it, then there after the officer came over and started questioning me, I only responding to his questions with my own, so not to admit guilt, he asked for my ID and I gave him my Student ID, and he said he need my other ID, I the placed a ciggarette in my mouth and he told me I could not smoke it which I replied with "Why not" and as I was about to light it he slammed me on a car and called over an assiting officer, claiming, "We have a smart ass." They ended up slamming me three times against a car and wrenched my should which hurt for a few days with no direct evidence of bruising. He then took me to his car in cuffs and ticketed me under Virginia Code 4.1-305.
He never read my rights which doesn't bother me that much but then questioned me at his squad car. I never received and field soberiatiy(sp) test nor a breathalizer. He asked me in a exact quote, "Did you have like 2 beers or more like 6?" I answered 2. I was questioning this because he gave me an altimatum in choices of 2 or 6.Remember without my rights being read.
Then through research I found in 2002 Attorney Kilgore at the time stated that a police officer can only use internal injestion if the officer were to see it and it was in his Jurisdiction which where I had consumed my first beers of the night was not and I am not sure about the second place because this was campus PD and they were like 100 yds from the party watching but not stopping the party so i figure it was out of their jurisdiction. Which I will do further research to figure this out.
If anyone can help me out please do my court date is Dec. 14, 2005; right in the middle of exam week. YAYA!!
(1) Your best bet is to stop acting like a smart aleck. If you don't understand how you showed up the police officer by putting a cigarette in your month when he asked you for ID, then you should read Dale Carnegie's "How to Win Friends and Influence People." I'm sure you know what I'm talking about regarding why the officer might have been offended.
(2) A breathalyzer is not usually needed to measure the presence of alcohol but the amount of alcohol in the system. It is used for DUI or intoxication cases. With a minor, you are prohibited from having any alcohol, including possessing it.
(3) The answer to the police officer's question should have been "0" if you weren't drinking. He asked you a trick question and basically admitted that you had been drinking.
Virignia Code is below and I'll comment on your being a minor in possession or minor in consumption of alcohol in a second post:
§ 4.1-305. Purchasing or possessing alcoholic beverages unlawful in certain cases; venue; exceptions; penalty; forfeiture; deferred proceedings; treatment and education programs.
A. No person to whom an alcoholic beverage may not lawfully be sold under § 4.1-304 shall consume, purchase or possess, or attempt to consume, purchase or possess, any alcoholic beverage, except (i) pursuant to subdivisions 1 through 7 of § 4.1-200; (ii) where possession of the alcoholic beverages by a person less than 21 years of age is due to such person's making a delivery of alcoholic beverages in pursuance of his employment or an order of his parent; or (iii) by any state, federal, or local law-enforcement officer when possession of an alcoholic beverage is necessary in the performance of his duties. Such person may be prosecuted either in the county or city in which the alcohol was possessed or consumed, or in the county or city in which the person exhibits evidence of physical indicia of consumption of alcohol.
B. No person under the age of 21 years shall use or attempt to use any (i) altered, fictitious, facsimile or simulated license to operate a motor vehicle, (ii) altered, fictitious, facsimile or simulated document, including, but not limited to a birth certificate or student identification card, or (iii) motor vehicle operator's license, birth certificate or student identification card of another person in order to establish a false identification or false age for himself to consume, purchase or attempt to consume or purchase an alcoholic beverage.
C. Any person found guilty of a violation of this section shall be guilty of a Class 1 misdemeanor; and upon conviction, (i) such person shall be ordered to pay a mandatory minimum fine of $500 or ordered to perform a mandatory minimum of 50 hours of community service as a condition of probation supervision and (ii) such person's license to operate a motor vehicle in the Commonwealth may be suspended for a period of not more than one year. The court, in its discretion and upon a demonstration of hardship, may authorize any person convicted of a violation of this section the use of a restricted permit to operate a motor vehicle in accordance with the provisions of subsection D of § 16.1-278.9 or subsection E of § 18.2-271.1 or when referred to a local community-based probation program established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1. During the period of license suspension, the court may require a person issued a restricted permit under the provisions of this subsection to be (i) monitored by an alcohol safety action program, or (ii) supervised by a local community-based probation program established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1, if one has been established for the locality. The alcohol safety action program or local community-based probation program shall report to the court any violation of the terms of the restricted permit, the required alcohol safety action program monitoring or the local community-based probation and any condition related thereto or any failure to remain alcohol-free during the suspension period.
D. Any alcoholic beverage purchased or possessed in violation of this section shall be deemed contraband and forfeited to the Commonwealth in accordance with § 4.1-338.
E. Any retail licensee who in good faith promptly notifies the Board or any state or local law-enforcement agency of a violation or suspected violation of this section shall be accorded immunity from an administrative penalty for a violation of § 4.1-304.
F. When any person who has not previously been convicted of underaged consumption, purchase or possession of alcoholic beverages in Virginia or any other state or the United States is before the court, the court may, upon entry of a plea of guilty or not guilty, if the facts found by the court would justify a finding of guilt of a violation of subsection A, without entering a judgment of guilt and with the consent of the accused, defer further proceedings and place him on probation subject to appropriate conditions. Such conditions may include the imposition of the license suspension and restricted license provisions in subsection C. However, in all such deferred proceedings, the court shall require the accused to enter a treatment or education program or both, if available, that in the opinion of the court best suits the needs of the accused. If the accused is placed on local community-based probation, the program shall be located in any of the judicial districts served by the community-based probation program or in any judicial district ordered by the court when the placement is with an alcohol safety action program. The services shall be provided by (i) a program licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services, (ii) certified by the Commission on VASAP, or (iii) by a program made available through a community-based probation program established pursuant to § 9.1-174, if one has been established for the locality. When an offender is ordered to enter a local community-based probation program rather than the alcohol safety action program, the local community-based probation program shall be responsible for providing for services or referring the offender to education or treatment services as a condition of probation.
Upon violation of a condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the conditions, the court shall discharge the person and dismiss the proceedings against him without an adjudication of guilt. A discharge and dismissal hereunder shall be treated as a conviction for the purpose of applying this section in any subsequent proceedings.
