MIP and Open Container in Oregon

My question involves criminal law for the state of: Oregon
(I originally posted this on the wrong thread)

My 19 yr old son was pulled over for having his fog lights on (we didn't even know that was illegal). When the officer questioned him if he had been drinking, he said no. He then asked him if that was Root beer on the passenger side floor. My son said what? and looked over and saw the mostly empty bottle on the floor that his friend had left earlier in the afternoon. He said no and then handed the officer the bottle. The bottle had about 1/2" in the bottom of it but it DID have beer in it. My son told the officer that it was his friend's (something I'm sure he has heard 100x before) and that he had not had anything at all to drink. (My son gets used as the DH with his friends all the time despite the fact that I warn him that they all are underaged ). He offered two times to take a breathalizer test knowing that he would blow 0.00. The officer gave him a field sobriety test which he passed but despite my son's insistance on getting a breath test, the officer said nothing and would not give him one. He was cited with an MIP and an open container.

Here is the deal. From what I have found a breathalizer is only used if you are being arrested because you have failed the field sobriety test OR is used to prove that a Minor has possession (consumption) by blowing 0.1 to 0.7. Since he passed the field sobriety test AND they had the bottle, there was no need for the officer to have him blow. So I know according to Oregon Law, he is guilty of both. BUT since he had not drank anything (and yes I do believe him) is there anything he can do to get lighter sentence/fine? I know he is guilty of being stupid, keeping a messy car, being oblivious to his friend leaving a beer, and for Oregon legal purposes, guilty of MIP and Open Container.

We have looked at Oregon newspapers and these legal sites and have found the fines and punishment ranging all over the place. I have read newspaper reports that show 10 people in court for MIP on a given date and only one losing his license for 6 months but all got fines. We hear from examples on these sites that he will not lose his license in Oregon. We also hear that in Oregon it is MANDATORY that he lose his license for a year and later reduced to 90 days if he is a good boy. He has friends that say they didn't lose their license. We read that others have.

I have talked to one lawyer who does not have time for his case (court date is 12 days after the ticket was issued) but he says that he sounds like it will be upheld. That is NOT my concern. I want my son to pay the fines for being so stupid and careless with friends who are drinking. However, I don't want him to lose his driving priveleges.

Is there a mandatory suspension of license or just possible?
Is there a diversion program that eliviates the suspension?
Should we get a lawyer even though, as you read the law and examples of how it is being applied, he is guilty?

This is the governing statute:

Quote:

---

Quoting ORS 471.430 Purchase or possession of alcoholic beverages by person under 21; entry of licensed premises by person under 21; community service and suspension of driving privileges; assessment and treatment.

---

(1) A person under the age of 21 years may not attempt to purchase, purchase or acquire alcoholic beverages. Except when such minor is in a private residence accompanied by the parent or guardian of the minor and with such parent’s or guardian’s consent, a person under the age of 21 years may not have personal possession of alcoholic beverages.

(2) For the purposes of this section, personal possession of alcoholic beverages includes the acceptance or consumption of a bottle of such beverages, or any portion thereof or a drink of such beverages. However, this section does not prohibit the acceptance or consumption by any person of sacramental wine as part of a religious rite or service.

(3) Except as authorized by rule or as necessitated in an emergency, a person under the age of 21 years may not enter or attempt to enter any portion of a licensed premises that is posted or otherwise identified as being prohibited to the use of minors.

(4)

(a) Except as provided in paragraph (b) of this subsection, a person who violates subsection (1) or (3) of this section commits a Class B violation.

(b) A person commits a Class A violation if the person violates subsection (1) of this section by reason of personal possession of alcoholic beverages while the person is operating a motor vehicle, as defined in ORS 801.360.

(5) In addition to and not in lieu of any other penalty established by law, a person under the age of 21 years who violates subsection (1) of this section through misrepresentation of age may be required to perform community service and the court shall order that the person’s driving privileges and right to apply for driving privileges be suspended for a period not to exceed one year. If a court has issued an order denying driving privileges under this section, the court, upon petition of the person, may withdraw the order at any time the court deems appropriate. The court notification to the Department of Transportation under this subsection may include a recommendation that the person be granted a hardship permit under ORS 807.240 if the person is otherwise eligible for the permit.

(6) In addition to and not in lieu of any penalty established by law, the court may order a person who violates this section to undergo assessment and treatment as provided in ORS 471.432. The court shall order a person to undergo assessment and treatment as provided in ORS 471.432 if the person has previously been found to have violated this section.

(7) The prohibitions of this section do not apply to a person under the age of 21 years who is acting under the direction of the Oregon Liquor Control Commission or under the direction of state or local law enforcement agencies for the purpose of investigating possible violations of laws prohibiting sales of alcoholic beverages to persons who are under the age of 21 years.

(8) The prohibitions of this section do not apply to a person under the age of 21 years who is acting under the direction of a licensee for the purpose of investigating possible violations by employees of the licensee of laws prohibiting sales of alcoholic beverages to persons who are under the age of 21 years.

---

I don't expect the court to be sympathetic to the argument that your son wasn't himself drinking or in possession of alcohol, but was "merely" driving around others who were drinking and who left some alcohol in his car.

What county was your son cited in? Also, was your son cited to appear in a specific courtroom?