Underage Possesion of Alcohol, Age 19

[dolphinman123]

My question involves criminal law for the state of: Virginia

I was arrested for Underage Possession of Alcohol : 4.1-305 (I have read the entire law dealing with it already as well as its consequences and probation route)

Here was the situation. Three friends and I were at a concert tailgating and were sitting in lawn chairs, we had just arrived (probably ten minutes total). Two of my friends had pre-mixed drinks. Both drinks were in bottles of Gatorade, remaining their true color due to the liquor being colorless. They whipped out the Gatorade bottles and each had a sip, then I was passed a bottle and also took a sip then set it down in between my friend and I. About 2 minutes later we were approached by a cop who asked my friend what he was drinking and he responded saying "Gatorade." The officier then asked him if he had consumed any alcohol and he admitted to having a sip of alcohol. The officier then asked him if he had any alcohol in his bottle and he responded "yes." He then put my friend in handcuffs without any further comments. I was next in line, He asked had I drank anything i said "yes sir" then he asked if the gatorade between me and my friend (A different one than the one being possessed by the friend already arrested) had any alcohol and I responded with "yes sir a little bit of vodka." I was then placed under arrest as well as my other two friends (one did not drink anything, the other had). I was not read any Miranda rights and at no point was asked if any of the alcohol was actually mine specifically. We were split up separately and were questioned by police about the alcohol. Meanwhile the initial cop searched the car (since we had already been arrested I assume he had 100% legality to do such an action from my understanding). I was asked heavily about whether or not I had weed (something that to me seemed irrelevent because during the questioning after the arrest I told him I had never even smoked weed). Anyways, the cops were out looking for weed on as as well as searching the car for alcohol. There were 4 handles found in the trunk of the closed car. No weed had ever been present and none was found (no residue, nothing, as none of us smoke weed). We were written tickets in the end for the charge stated above.

Sorry to explain so in depth, I just wanted to provide as much detail as possible. My questions are as follows:

1. Due to no Miranda rights being read would anything I said to the cop even be able to be used in court? (the way the Miranda rights looked from my point of view was that of course if you are arrested they should be read if the officier plans to interrogate you but also there was a detail about how if at anytime you are placed in an environment in which you do not believe you are free to leave, such as the initial two questions I was being asked)

2. If the officier infact was in the wrong for not reading my Miranda rights could this be cause for a dismissal?

3. Though alcohol was present at the scene and in the car (not my car), I was never actually seen possessing any nor admitted to at any point (just that I had drank and that yes there was alcohol in the bottle) could this be a valid arguement to try to plead "not guilty" for possesing alcohol?

4. Are there any other loop-holes from reading my situation that anyone can see as cause to fight the charge?

5. If all else fails and fighting the charge would just be out of the question would a lawyer really be needed for me or would a normal judge give me the probation/alcohol class route without one?

Thank you for your time, comments would be greatly appreciated. If you need any clarification or more details simply ask and I would be more than happy to provide them for you.

[PTPD22]

1. Due to no Miranda rights being read would anything I said to the cop even be able to be used in court? (the way the Miranda rights looked from my point of view was that of course if you are arrested they should be read if the officier plans to interrogate you but also there was a detail about how if at anytime you are placed in an environment in which you do not believe you are free to leave, such as the initial two questions I was being asked)

I applaud you for doing your own research and your reasonable, thought-out conclusions. You have the general gist of Miranda down. However, court decisions subsequent to the original Arizona v. Miranda case (even after 40+ years, Miranda is still a frequently debated issue) have made it more specific and not as easily interpreted as what you have gotten so far. The requirement for Miranda warnings are a little more than the " environment in which you do not believe you are free to leave." It is actually when a person is arrested or detained in a manner that is the functional equivalent of arrest. And, there has been a lot of case law examining just what the "functional equivalent" of arrest is. There is really no hard and fast rule, but has to consider the totality of the circumstances. Some of the things courts have said have to be considered is the mental age of the person being questioned, their prior experience with law enforcement or other authority figures, the location, the length of the questioning, the number of police officers present....etc. etc. etc. From what you have explained, it sounds to me like you were, in fact, detained when the officer asked his initial questions. However, I do not believe that the detention was of a nature to require Miranda warnings before questioning. Therefore, I believe that your admissions to having consumed alcohol and that alcohol was present in the container sitting next to you would be admissible in court.

2. If the officier infact was in the wrong for not reading my Miranda rights could this be cause for a dismissal?

Well, I don't think the lack of Miranda is relevant. However, even if your admissions were suppressed, I doubt it would lead to a dismissal. Something obviously aroused the officers suspicions before he even questioned you. Whatever he saw to arouse those suspicions was likely enough for him to detain and investigate. There was, in fact, alcohol in the containers and the circumstances are such that you were in constructive possession. So, no, I don't think it would be dismissed, even if.

3. Though alcohol was present at the scene and in the car (not my car), I was never actually seen possessing any nor admitted to at any point (just that I had drank and that yes there was alcohol in the bottle) could this be a valid arguement to try to plead "not guilty" for possesing alcohol?

Actually, you don't really know that you were not seen by the cop taking that drink from the bottle. But, even if you weren't, the circumstances still are pretty strong for a ruling of constructive possession. Your admission is icing on the cake for the prosecution, but not really needed.

4. Are there any other loop-holes from reading my situation that anyone can see as cause to fight the charge?

Not that I see. Getting your admissions thrown out isn't necessarily a lost cause...I just don't think it's likely and likely not enough to beat the rap even if you did.

5. If all else fails and fighting the charge would just be out of the question would a lawyer really be needed for me or would a normal judge give me the probation/alcohol class route without one?

An attorney probably is not absolutely needed...but an attorney would certainly be of benefit. You could likely negotiate the deferment with the prosecutor yourself, an attorney would probably get you through the process smoother and with less effort and stress. I would advise you to get an attorney to negotiate the best deal you can get. But, of course, the choice is yours.

[dolphinman123]

Thanks for all of your insights on the matter, they were very helpful. Would it be a bad idea for me to try to fight the district attorney in court in the sense that it may make the judge less willing to give me the minimal charge possible for possession of alcohol? (That being a alcohol class and perhaps some community service) Or should it not be any disadvantage for me to try?

[jk]

I'm missing on what basis you believe you have a chance of prevailing.

You admitted to the crime.

A cop walking up to you and asking a question where it is answered without hesitation does not describe a situation where one would believe they are being detained. As such, a lack of Miranda defense would not be applicable. Even if you want to argue it was applicable, if alcohol could be smelled on your breath, your consumption would have been discovered even without your confession.

was there some other reason you think you might prevail?

and just in case you want to argue the bottle wasn't yours, recall what the law states:

prev | next § 4.1-305. Purchasing or possessing alcoholic beverages unlawful in certain cases; venue; exceptions; penalty; forfeiture; deferred proceedings; treatment and education programs and services. 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, having drank it is the same as holding the bottle.

[dolphinman123]

Should I plead guilty, not guilty, or no contest? I can't afford a lawyer and I realize at this point that I most likely will be found guilty no matter what. My thoughts are will pleading not guilty make the judges decision worse or not? (If it should have no effect, i'd like to plead not guilty in order to listen to what the officier has to say about the situation and see if he doesn't really have details about me. He shouldn't afterall, there were lots of cops there, I was only with him for about 2 minutes total.)

[LawResearcherMissy]

Plead Not Guilty, and ask for a Public Defender.

Bear in mind, a PD is not free, but will be considerably less expensive than private counsel. Representation in court can help you get a diversion program, which may then leave you with a clean record.