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  1. #1
    Join Date
    Aug 2015
    Posts
    2

    Default Can a Passenger in a Car Be Charged with MIP and Open Container Without Drinking

    My question involves a traffic ticket from the state of: Oregon
    My son is 18 and was riding with a 17yr old driver. The driver was pulled over for driving too slow on a rural road at 11:00pm. The driver had opened a can of beer and had a few sips. The can was in the cup holder when the officer came to the vehicle. The driver was given a field sobriety and breathalyzer test. Passed both. The 17 yr old driver was cited for MIP while driving a vehicle and open container. My 18 yr old son was cited for MIP (and the officer crossed out the "while driving a motor vehicle) and open container. This is my son's first encounter with law enforcement.

    My questions are as follows:
    It seems odd that both boys received the same citations. My son was not drinking. The officer even told the driver that he "threw his friend under the bus since he wasn't drinking and he was 18."
    Will the MIP and open container citation go against his driving record for insurance since he was not driving? Would it be the same as if he was at a party and not driving? Or does it matter where it happens?
    How does he approach the judge...shall he plead guilty with explanation or no contest with explanation. He would like a diversion program, community service or some other option. How does he go about requesting this?

    By the way, it was a good lesson in guilty by association which I have been talking about with him for years.

    Thanks!

  2. #2
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: MIP and Open Container

    Drinking is not required. Possession is all that is necessary. If he could get to the alcohol, he had possession of it. You don't need to have been in the car, with small exception for religious ceremonies or with your parents in a private home, a minor may not have possession of alcohol. It will not affect his driving record. If he didn't misrepresent his age to get the alcohol, then it won't result in a suspension.

    Never plead guilty or no contest without legal counsel as to the implications of doing so. Unless there is a clear offer in advance for some sort of diversion, I would recommend he talk to an attorney.

  3. #3
    Join Date
    Jul 2014
    Posts
    441

    Default Re: MIP and Open Container

    To add to what flyingiron said, your son can simply ask the court about diversion programs and if he would qualify. It's not a closely guarded secret. The court clerk or judge will give a straight forward answer such as "That's up to the prosecutor," or "Yes, this case would qualify if he wants to plead guilty and be placed in diversion," or "We don't do diversion here." That will give you a hint on where to go next.

    I personally wouldn't spend $500 on a lawyer to get something you could get without one, but that's the key; it varies by court on whether you need a lawyer to get that or not. Some lawyers do free consultations though. But when he appears, if they say "We don't know about diversion," or "We don't do it," he can ALWAYS just plead "not guilty" at that time. That buys him time to get a lawyer, or figure out how to get diversion, or whatever. Best case scenario is (and some courts here do this,) they send him immediately to another room to discuss diversion with a prosecutor that day and allow him to get it, wrap his case up right then and there, and avoid a criminal record if he meets certain conditions.

  4. #4
    Join Date
    Aug 2015
    Posts
    2

    Default Re: MIP and Open Container

    Thank you for the response. Can he go to the court clerk prior to his court date to request diversion or does he have to wait until court day. His time of court is 9:00am, so not much time to do this the morning of the court appearance.

  5. #5
    Join Date
    Jul 2014
    Posts
    441

    Default Re: MIP and Open Container

    I would wait until called and ask the judge or magistrate. When the judge or magistrate says "How do you wish to plead," he can say "I'd like to plead not guilty, but I'm interested in a diversion program. I understand that I would need to change my plea to be accepted. To whom do I need to speak about that?" The judge will then give him an answer. The judge isn't just there to hammer people. He or she is there to help guide people through the system and make sure they know their rights (without giving actual legal advice of course.)

    Your son can also call the prosecutor's office and ask. They might say "We don't talk to you without a lawyer," or they might say "You wait until you go to court and you ask the judge."

    Either way, asking will give him the answers on how to best proceed.

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