Underage Drinking Citation As a Passenger

[benFul]

My question involves criminal law for the state of: North Carolina

My friends and I were driving back from down town at about 1 am. We got pulled over because my friend driving had expirered tags. We are all 20. The officer came up to the car and asked for ID and registration. The driver handed him his ID and he couldn't find the new registration so he used last years. He asked where we were coming from and we said the club. He asked for all of our IDs and so we gave them. With that he said he smelled alcohol in the car and asked if any of us had anything to drink that night and we said no. So he asked us all if we'd take breathalyzer tests. We said we do not consent to anything. He then pulled the driver out of the car and made him do sobriety tests. The driver came back and said that he completed the test perfectly. Then about 3 minutes later, 4 officers showed up and took the driver out of the car again. They put him in the passenger seat of the patrol car and rolled up the windows. The officer said he smelled alcohol. The driver never consented to a breathalizer and has been charged with consuming alcohol and operating a vehicle underage.

Now here's what I don't understand. My other friend and I were in the car and we were charged with underage consumption. How were they allowed to give us that? We were spectators the entire time and we never consented to any breathalizer tests. The only evidence they couldve gathered is from their judgement of smell. (and we didnt smell like alcohol) I asked the officer today and he said that he smelled alcohol on our breath, but we were never really questioned or confronted. We were basically just handed the tickets at the end of the driver's ordeal.

Are they allowed to charge us with that? Was there enough evidence? And I'm going to be putting in a good amount of money for a lawyer. How do my chances look in court?

Extras: my friend will be 21 in about a week, me in 3 months. The driver, later.
They spelled my name wrong on the ticket.

[PTPD22]

Are they allowed to charge us with that?

Of course they are allowed to charge you with that. NC statute 18B-302(b) says that it is illegal for anyone under 21 to "purchase, attempt to purchase, or to possess" alcohol. If the cops have probable cause to believe you are in violation, they are going to cite you.

Was there enough evidence?

I know you say the driver felt that he performed the test "perfectly" and you "didn't smell like alcohol." Well, if you read the post here, you will soon see that everyone thinks they passed sobriety tests. The truth is that the cop almost certainly can truthfully articulate both the smell and visible symptoms of alcohol consumption from all of you. If they could smell the odor of alcohol, that is enough to establish probable cause. However, there may or may not be enough evidence to convict. The cops could have (should have) demanded breath samples from all of you. Without that or individual sobriety tests, your best argument is going to be to throw the driver under the bus and say that all the alcohol smell came from him.

And I'm going to be putting in a good amount of money for a lawyer. How do my chances look in court?

With a good lawyer, I would give your chances 50/50 (just my opinion). If you are convicted, you are likely facing a fine, probation, and a license suspension.

[jk]

(and we didnt smell like alcohol)

You are kidding yourself. Not only can it be smelled on your breath, it perfuses through your skin so they didn't have to necessarily smell your breath.




from PTPD22:

Without that or individual sobriety tests, your best argument is going to be to throw the driver under the bus and say that all the alcohol smell came from him.

sounds like a plan. He's going down for something anyway. Might as well pile as much as you can on him.

[benFul]

Of course they are allowed to charge you with that. NC statute 18B-302(b) says that it is illegal for anyone under 21 to "purchase, attempt to purchase, or to possess" alcohol. If the cops have probable cause to believe you are in violation, they are going to cite you.

With a good lawyer, I would give your chances 50/50 (just my opinion). If you are convicted, you are likely facing a fine, probation, and a license suspension.

none of us "purchased, attempted to purchase, or possessed alcohol."

The driver had 1 drink about 3 hours prior and the officers had told him that even if he blows double zeros it can still tell if you've had a sip of alcohol within the past 4 hours.

So my chances aren't looking too fantastic, but it would be my first convinced offense and I could go on first offenders and then get it expunged? One of the officers said that the judges usually drop most of the cases here anyway for how we got that charge.

If anyone else has any insights please jump in.

So my next question is: how does one go about finding the absolute top rated lawyers in the area to help with this situation in court? And could my friend and I both be represented by the same lawyer and split price?

[PTPD22]

none of us "purchased, attempted to purchase, or possessed alcohol."

If that were true, then how could your next statement also be true?

The driver had 1 drink about 3 hours prior and the officers had told him that even if he blows double zeros it can still tell if you've had a sip of alcohol within the past 4 hours.

How does the driver consume a drink if none of you possessed alcohol??? Evidence that you consumed it shows that you possessed it! You can't consume something that you don't have possession of.

So my chances aren't looking too fantastic, but it would be my first convinced offense and I could go on first offenders and then get it expunged? One of the officers said that the judges usually drop most of the cases here anyway for how we got that charge.

Well, you will be going to adult court, not juvi court. Nonetheless, if you have a clean record, for a relatively minor charge like this some sort of diversion or deferred prosecution is likely. That is not the same as having it "expunged." But, the usual deal is, if you successfully complete the conditions given, the regular sentence is suspended.

So my next question is: how does one go about finding the absolute top rated lawyers in the area to help with this situation in court?

I don't know of any organization that rates lawyers on their MIP defense ability. Even if someone wanted to, I have no idea what the rating criteria would be. Look in the phone book and find a few that look promising to you then talk to them and choose the one that you have the best feeling about.

And could my friend and I both be represented by the same lawyer and split price?

If you are all co-defendants in the same case, yes you could do that. However, if your defense is going to be to claim that only the driver is guilty, then it could well be a conflict of interest for the same lawyer to represent you both.

[DWI9]

Right now you're getting feedback from COPS who are obviously gonna lean heavily on one side of the law. To me, I'd show up in court and plead not guilty, and based on what you've said and the lack of evidence I think there's a very good chance of it getting reduced or dismissed. I think it's highly unlikely that the DA will want to take this to trial, they have much bigger cases to worry about, with much more evidence. Keep in mind that most of their jury trial dockets are extremely backed up and they don't want increase their backlog with a BS case like this.

Try avvo.com, you'll get good feedback from defense attorneys in your area.

Best of luck!!!

[jk]

DWI9;622930]Right now you're getting feedback from COPS who are obviously gonna lean heavily on one side of the law.

and you make this obviously ignorant statement based on what?

To me, I'd show up in court and plead not guilty, and based on what you've said and the lack of evidence I think there's a very good chance of it getting reduced or dismissed. I think it's highly unlikely that the DA will want to take this to trial, they have much bigger cases to worry about, with much more evidence. Keep in mind that most of their jury trial dockets are extremely backed up and they don't want increase their backlog with a BS case like this.

so, just where do they draw the line:

theft? violent assaults? murder? Just tell me, at what point does the DA decide that the crime is just too small to worry about?

Try avvo.com, you'll get good feedback from defense attorneys in your area.

Ah, so this is a spam posting. Figures. You start with posting erroneous statements followed by bs opinion and toss on some spam for flavor. Great.

[DWI9]

Don't like it, feel free to move on to the next post. It's pretty evident that most replies here come from COPS or DA's.

And no, not spam...just leading the OP to a place where he can get the advice he's not looking for, not all the doom and gloom you guys feed all the people who come here for criminal defense advice.

Carry on now...maybe someone else will post soon so you guys can tell them how screwed they are!!!

[jk]

Don't like it, feel free to move on to the next post. It's pretty evident that most replies here come from COPS or DA's.

And no, not spam...just leading the OP to a place where he can get the advice he's not looking for, not all the doom and gloom you guys feed all the people who come here for criminal defense advice.

Carry on now...maybe someone else will post soon so you guys can tell them how screwed they are!!!

did ya miss where the other poster tossed out a 50/50 shot at this? That is far from telling him he is screwed. I didn't give any odds and saw using the driver as a scapegoat to get out of this (yes, courts play a lot of games so get used to it)

so, please tell me where the gloom and doom is?

[DWI9]

did ya miss where the other poster tossed out a 50/50 shot at this? That is far from telling him he is screwed. I didn't give any odds and saw using the driver as a scapegoat to get out of this (yes, courts play a lot of games so get used to it)

so, please tell me where the gloom and doom is?

Feel free to browse many of the previous posts, plenty of it to be found. Bottom line, this forum, or at least this portion of it, isn't a good place for criminal defense advice from criminal defense attorneys, it overloaded with COPS and DA's who will tell you everything you did wrong, not the areas which may help your case, which I think most posters come here for.