Bp 25620

[hcooper11]

California
I was recently cited for violating BP 25620 .
It was a big festival on UC San Diego's campus, where nearly everyone is intoxicated for the day. I had just woken up from a nap in the dorms and was walking to the bathroom with a small bottle of Orange juice. I was stopped by an undercover officer who asked for my drink and I.D. I am 21 years old and had been drinking hours earlier and could have smelt of alcohol, although at the time I was not currently intoxicated. The officer asked what I was drinking and I said O.J. He said and what alcohol? I said no it is just o.j. He proceeded to write my the citation and placed the bottle on the ground. I asked why do you think there is alcohol in there? He says, because it's my job. He never tasted or tested my o.j to see if there was indeed alcohol in it. I believe he assumed there was because of my surroundings and therefore I was falsely accused.
A. Is there any way the court will find me not guilty if I go to court? What are my options?

 

[I_Got_Banned]

25620.

(a) Any person possessing any can, bottle, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed, in any city, county, or city and county owned park or other city, county, or city and county owned public place, or any recreation and park district, or any regional park or open-space district shall be guilty of an infraction if the city, county, or city and county has enacted an ordinance that prohibits the possession of those containers in those areas or the consumption of alcoholic beverages in those areas.
(b) This section does not apply where the possession is within premises located in a park or other public place for which a license has been issued pursuant to this division.
(c) This section does not apply when an individual is in possession of an alcoholic beverage container for the purpose of recycling or other related activity.​

​

Two general questions... Rhetorical ones, actually...

1. Do you always take your "orange juice" with you when you go to the bathroom?

And...

2. You smelled of alcohol but you were not intoxicated?

 

[Jim_bo]

25620.

(a) Any person possessing any can, bottle, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed, in any city, county, or city and county owned park or other city, county, or city and county owned public place, or any recreation and park district, or any regional park or open-space district shall be guilty of an infraction if the city, county, or city and county has enacted an ordinance that prohibits the possession of those containers in those areas or the consumption of alcoholic beverages in those areas.
(b) This section does not apply where the possession is within premises located in a park or other public place for which a license has been issued pursuant to this division.
(c) This section does not apply when an individual is in possession of an alcoholic beverage container for the purpose of recycling or other related activity.​

​

Two general questions... Rhetorical ones, actually...

1. Do you always take your "orange juice" with you when you go to the bathroom?

And...

2. You smelled of alcohol but you were not intoxicated?

It's not that your questions are rhetorical... it is that they are irrelevant. The OP was not cited for having an open container of OJ. So, this "over-zealous public servant" has issues that likely relate to very small parts of his body.

OP, of course you should go to court to argue. The cop has ZERO evidence against you (unless he intends to lie through his teeth). Just go to court and tell the same story you told here. You should be fine.

 

[hcooper11]

question 1: no i normally do not carry oj with me but i wanted something to drink other than alcohol before going to the festival and oj was all i had

question 2: I had been drinking earlier so it was most likely in my blood stream but I was not impaired in any such way.


To Jim_bo- if officer shows and lies about it what is the likely hood the judge will believe me? and also if he doesn't show is the case dropped?

 

[I_Got_Banned]

It's not that your questions are rhetorical... it is that they are irrelevant. The OP was not cited for having an open container of OJ. So, this "over-zealous public servant" has issues that likely relate to very small parts of his body.

OP, of course you should go to court to argue. The cop has ZERO evidence against you (unless he intends to lie through his teeth). Just go to court and tell the same story you told here. You should be fine.

Actually, my questions are very relevant, Jim. Just because they fail to support your suggestion that the "overzealous public employee" has something to gain by citing the OP, does not make them irrelevant!

So unless you can offer any information that shows how the officer might benefit by "lying through his teeth" or some sort of proof that he's on some sort of bonus plan that is based on the number of citations writes, then YOUR comments are misplaced, unwarranted and they serve the exact opposite goal of why the OP signed on and posted!

 

[I_Got_Banned]

hcooper11,

Please don't misunderstand me... I wasn't there and I don't know what happened. All I'm saying is, the story that you posted here does not, in my opinion, at least, stack the odds in your favor. Others obviously disagree!

So you can ignore my posts if you choose to, or you can use them to try and get a sense of reality which might help you build a better case for yourself.

The choice is yours!

question 1: no i normally do not carry oj with me but i wanted something to drink other than alcohol before going to the festival and oj was all i had

Earlier you said you were going to the restroom, now you say you were going to the festival? Was the festival in the restroom or is the only restroom in your dorm at the festival?

question 2: I had been drinking earlier so it was most likely in my blood stream but I was not impaired in any such way.

Any which way?
Plus, if alcohol was still in your bloodstream, how can you claim that you were not intoxicated in any such way? Whichever that way might be?

I know the following questions were for Jim, but I will post my responses as well. Feel free to ignore them if you want...

To Jim_bo- if officer shows and lies about it what is the likely hood the judge will believe me?

If you tell the story like you told it here, especially the part about the bathroom, the festival, and about "nearly everyone is intoxicated for the day", the likelihood he will believe you about it being pure OJ in that bottle are pretty slim!

I would also assume that the officer's testimony will include something about the "festival" part, about how you smelled of alcohol, as well as the "nearly everyone was intoxicated for the day" part....

While none of that proves that you had anything else in addition to OJ in that bottle, it just puts you in a more defensive stance than where I'd want to be.

Additionally, the officer gains nothing if you lose and loses nothing if you win. While you might save a few bucks for more "OJ" if you happen to win.

If you were the Judge, who's story would you believe more? Yous or the officer's?

and also if he doesn't show is the case dropped?

I think the chances of him not showing up, and considering the fact that he may have written quite a few citations that day, are even slimmer than that of the judge believing your story more than his!

However, if you are lucky, he won't show and, yes, your case should be dropped.

 

[CdwJava]

And, of course, if the officer testifies that he smelled the odor of alcohol emanating from the glass of OJ (maybe in conjunction with it emanating from your person) that this could also be sufficient. Frequently, it IS sufficient.

- Carl

 

[Jim_bo]

And, of course, if the officer testifies that he smelled the odor of alcohol emanating from the glass of OJ (maybe in conjunction with it emanating from your person) that this could also be sufficient. Frequently, it IS sufficient.

- Carl

However, it is the OP's position that the cop never "tasted or tested" the OJ. The typical alcholic beverage to accompany OJ is vodka. Vodka is hard to smell without putting your nose very close to the drink. So, the cop obviously just ASSUMED the OP had alcohol instead of verifying.

I'd offer that you could cross examine the cop and ask how he determined that you had alcohol in the OJ. If he says "by smell", ask how close he was. At that time, you could introduce a simple test. You could bring in four glasses of OJ and a small (airplane type) bottle of vodka. Introduce the vodka into one of the cups of OJ and then ask the cop to identify which one had alcohol from the same distance.

If the OP is accurate in how the determination was made (and I have no reason to believe the OP is not accuarate), then this cop had no foundation to cite the OP. Furthermore, the OP states that there was no alcohol. So, I don't understand why the OP is assumed to be lying. Whatever happened to the presumption of innocence?

I know you seem to ALWAYS want to bend over backwards to give benefit of the doubt to a cop... but that's simply not the standard of our judicial system. In fact, it is that kind of willingness to accept whatever the cop says that sets a very low standard for the cops. I would offer that the "blind trust" you seem to give to these cops does them a disservice as it trains them to be less proffessional than what should be expected from a public servant.

 

[reactive]

I like Jim_bo's comments. Some advice from me: don't argue that you had been drinking but weren't impaired; that's an instant loss of credibility. Dress respectably for the court appearance.

A few questions of mine, as much for my curiosity as anything else:
Did he confiscate the bottle of orange juice?
Smelling of alcohol in that situation wasn't technically public intoxication?
Do many college students drink orange juice with vodka? In bottles in dorms?
Is there any way of finding out if the officer has a history of issuing citations that have been dismissed?
Isn't there a more appropriate sub-forum for this thread?

 

[CdwJava]

These are common offenses and tend to be handled in traffic court in San Diego County.

Yes, Jim, the courts often WILL side with the officers when they assert that there was the odor of alcohol emanating from the cup. If it was vodka, and there was no odor, one would hope the officer will testify that he could not smell any and just made the assumption there was alcohol due to the environment or the kid's state of being (disheveled and likely smelling of alcohol). If the kid can make his case with a proper cross examination, the judge might dismiss. I've seen it go both ways when I was there. It's very likely that the officer will have little specific memory of the particular incident if he had been issuing cites most the day, so he'll likely have to admit he doesn't have an independent recollection. Unless something stands out, he may not recall it. I know from first hand experience that when you issue a dozen or more cites in short order, unless something about it sticks out in your mind, you really are not going to recall the details.

The judge will listen to the officer and then the OP and will render his decision as he or she sees fit. Nothing either of says will change that.

- Carl

 

[CdwJava]

Did he confiscate the bottle of orange juice?

The OP did not indicate such, and I would be amazed if he did. It is not tyoical to seize the containers in these situations.

Smelling of alcohol in that situation wasn't technically public intoxication?

Taken alone, emanating the odor of alcohol from your person is NOT sufficient for a public intoxication charge.

Do many college students drink orange juice with vodka?

They used to ... it's a Screwdriver.

Is there any way of finding out if the officer has a history of issuing citations that have been dismissed?

He could go fishing at the court house, but it might be a bear to find that out as this is not maintained as a specific record, so unless he gets a very bored and helpful court clerk, he'd not likely be able to discover this information.

Isn't there a more appropriate sub-forum for this thread?

Yep. Probably the Arrests thread under Criminal Law.

- Carl

 

[reactive]

"It is not tyoical to seize the containers in these situations." That ought to be changed, at least if the person being charged agrees to confiscation and the container isn't necessarily for alcohol. Anyway, thanks for the answers.

 

[Jim_bo]

Yes, Jim, the courts often WILL side with the officers when they assert that there was the odor of alcohol emanating from the cup.

If you know that the courts will simply side with the cop, I would think that you would take responsibility for setting a high standard for cops in such situations. Otherwise, there is not control at all in the situation where the court believes the cop and the cop acts capriciously. That is a recipe for violating the rights of the public.

If it was vodka, and there was no odor, one would hope the officer will testify that he could not smell any and just made the assumption there was alcohol due to the environment or the kid's state of being (disheveled and likely smelling of alcohol).

That's what will likely happen. I am amazed that the above doesn't offend you. The cop making (in effect) an arrest which you recognize will simply be accepted by a judge based on his ASSUMPTION!!! I just don't understand why you have such low standards for cops and high standards for the public.

 

[CdwJava]

If you know that the courts will simply side with the cop, I would think that you would take responsibility for setting a high standard for cops in such situations. Otherwise, there is not control at all in the situation where the court believes the cop and the cop acts capriciously. That is a recipe for violating the rights of the public.

I would hope that the officer testifies truthfully as to what he or she saw. If you expect them to call CSI or book, process, and test every cup and bottle they seize, you're not living in the real world.

If the defendant can offer sufficient reasonable doubt, then the court should find him not guilty. It happens.

That's what will likely happen. I am amazed that the above doesn't offend you. The cop making (in effect) an arrest which you recognize will simply be accepted by a judge based on his ASSUMPTION!!! I just don't understand why you have such low standards for cops and high standards for the public.

You are assuming that this is what the cop did and that the cop neither smelled alcohol in the cup nor had a reasonable belief there was alcohol in the cup. If the officer was slipshod, then he shouldn't have been. He's not here for me to scold or suggest other methods of detecting alcohol (many portable PBT devices are now capable of detecting the present of alcohol, so that could have been an option). All because I am not sitting her pounding my fist on the table doesn't mean I approve of him citing based upon an assumption. However, having been at such events where there i massive drinking and inebriation, I strongly suspect it was more than a random assumption. If it was, then bad cop, no donut.

If the kid points out that the officer never tested the cup nor smelled anything in it, and especially if the officer agrees, then there's reasonable doubt and the court is very likely to find him not guilty.

I've been in court on dozens of these from beach parties and house parties over the years and often times we cannot recall the details by the time it gets to court. When that happens, the judge generally dismisses.

- Carl

 

[reactive]

I thought about it more. A law-abiding witness to the earlier drinking could be a big help.