MIP and No Tolerance law

[legal12345]

What is the name of your state (only U.S. law)? California

Hello,

A few nights ago I was parked in my car in a shopping center. Police Officers came by because two kids that were parked next to us were cleaning out their trunk. The officer smelled alcohol and began questioning them. Then a lady officer came over to my car where my friend and I sat sharing a pizza. She began asking us if we had anything to drink etc. I lied and said no, but she began flashing her flashlight into the backseat of my car and she saw a bottle. She asked what it was a bottle of and I looked in the back and to my dismay it was a "tall boy" of alcohol. This alcohol was not mine however and it was left in the back of my truck by my dad when he used it to go to the liquor store and buy alcohol earlier that day. The can was closed.

I was asked to get out my car and I was breathalyzed and I blew a .015. This is because I had taken a few sips of one of the alcoholic beverages my dad bought earlier that day when he was not looking. I drank approx half of the tall boy which is about 1 beer. About 30 mins later I drove to pick up my friend and a pizza; we then parked in the shopping center and started eating, when all this happened. The officer that breathalyzed me asked in a weird way if I had bought the alcohol myself due to how old I look, and in fear of getting my dad in trouble I said yes.

My charges are as followed
23136 as an infraction
http://dmv.ca.gov/pubs/vctop/d11/vc23136.htm
and 25662 as a misdemeanor
http://dmv.ca.gov/pubs/vctop/appndxa/buspro/bpc25662.htm
My questions for the gurus on this board are;

If my dad is willing to testify that he accidentally left the beer in my car, will this charge (25662) be dropped?

Also, I have 10 days to fight the suspension of my license, will I be able to with this alibi? I had very little to drink, but it looks like I won't be able to get out of the infraction.. which means a 1 year suspension is inevitable correct?

Would an attorney be recommended?
Does anyone know what the fines are approximately for these charges?

Thank you very much in advance, I know there were a lot of questions buried in this big post, and I know it probably wasn't very well put together but I appreciate any help I can get.

EDIT: I forgot to mention that I tried to refuse the breathalyzer test and I requested a blood test, but the officer told me I HAD to do the breathalyzer, can I use this to my advantage?

 

[CdwJava]

She began asking us if we had anything to drink etc. I lied and said no, but she began flashing her flashlight into the backseat of my car and she saw a bottle.

So, you HAD been drinking. Then you try to argue that the alcohol in the car was not yours ... that doesn't look good.

I was asked to get out my car and I was breathalyzed and I blew a .015. This is because I had taken a few sips of one of the alcoholic beverages my dad bought earlier that day when he was not looking.

The .015 was enough to cement, set and seal the probable cause for the arrest.

The officer that breathalyzed me asked in a weird way if I had bought the alcohol myself due to how old I look, and in fear of getting my dad in trouble I said yes.

Okay ... soooo ... you have the odor of alcohol on you, you have a container of alcohol in the car, you test positive for alcohol, and you admit to buying or procuring the alcohol.

If my dad is willing to testify that he accidentally left the beer in my car, will this charge (25662) be dropped?

Probably not. But, you might get lucky.

Also, I have 10 days to fight the suspension of my license, will I be able to with this alibi? I had very little to drink, but it looks like I won't be able to get out of the infraction.. which means a 1 year suspension is inevitable correct?

You blew over .01. You are guilty. You can contest the suspension of your license, but by the time it goes to trial - unless you can beat it on other grounds (such as the state not demonstrating you drove the car) - you will suffer a license penalty.

Would an attorney be recommended?

An attorney is always recommended, but may be of limited influence.

Does anyone know what the fines are approximately for these charges?

About $331 for the 23136, and for the 25662(a) a one year license suspension and "a fine of two hundred fifty dollars ($250) or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed or is not attending school."

EDIT: I forgot to mention that I tried to refuse the breathalyzer test and I requested a blood test, but the officer told me I HAD to do the breathalyzer, can I use this to my advantage?

No. The law requires you to give a breath test for the zero tolerance enforcement.

 

[legal12345]

Thank you very much for the quick response!

So it would appear I am "screwed" for the lack of a better term...

No the officers didn't know if I drove the car under the influence or not, but I think I told them I did..

Another question if you don't mind, is this possible to expunge from my record? If so, do you know what the process is like? (as in staying out of trouble until I'm 21, community service, etc.)

Also, should I even bother asking my dad to testify for me or should I just take it because it looks so bad..? Will these two charges add up to a total of 2 years of my license being suspended?

Thanks again!

 

[CdwJava]

Thank you very much for the quick response!

So it would appear I am "screwed" for the lack of a better term...

There are options ... and with an attorney the 23136 MIGHT be able to be challenged. The state has to show driving ... if you were contacted while parked and no one at the scene saw you operating the motor vehicle, then the 23136 offense might be successfully challenged.

But, if you told them you drove the car, you may be done.

Another question if you don't mind, is this possible to expunge from my record? If so, do you know what the process is like? (as in staying out of trouble until I'm 21, community service, etc.)

It's too early to tell what will come of it. But, here is a link to the relevant info on expungements/dismissals:

http://www.courtinfo.ca.gov/selfhelp/other/crimlawclean.htm

Also, should I even bother asking my dad to testify for me or should I just take it because it looks so bad..? Will these two charges add up to a total of 2 years of my license being suspended?

It probably wouldn't hurt to have your dad testify, but, an attorney may see it differently. It would probably be in your best interest to run this whole matter past an attorney (many consultation are free) and see what they have to say. Sometimes local courts can be lenient, sometimes they can be rough. A local attorney might be able to give you an idea of what's up.

And, no, I do not believe you'd be looking at 2 years. It should only be the one.

 

[legal12345]

Thanks again for all the great answers. I think I will run by an attorney challenging both.. the alcohol in my car was left there by my dad, and NO cop saw me drive the vehicle so as far as they are concerned I drank the alcohol in my car parked in the shopping center.

I may also challenge the calibration of the breathalyzer because if that was off I should have blown a zero.

Does this all sound reasonable?

 

[xylene]

How did you drink half of an unopened beer?

 

[legal12345]

It was a different beer. Drank half and poured the rest out and put the bottle away.

 

[CdwJava]

Challenging the breath device is not likely to work, and would possibly require an expert to testify (a very expensive one).

Now, some counties still charge possession if someone underage has even consumed alcohol ... last I heard only 18 counties still did that, but i don't have a list of which ones do. Your attorney can probably tell you that.

I suspect you may be encouraged to cop a plea to one or the other of the charges ... maybe. But, the 25662 seems pretty good, so they may drop the 23136 in exchange for the 25662.

 

[legal12345]

Thank you again for all your help cdwjava!

I also would like to point out that my rights were not read to me at all that night. Does this make a difference?

I definitely plan to get the 23136 dropped because the cops have no proof I was driving. The 25662 however sounds like it will be more difficult but my attorney will hopefully convince the judge that my dad is telling the truth.

 

[CdwJava]

Thank you again for all your help cdwjava!

I also would like to point out that my rights were not read to me at all that night. Does this make a difference?

Nope. Miranda generally applies to interrogation conducted after an arrest.

I definitely plan to get the 23136 dropped because the cops have no proof I was driving. The 25662 however sounds like it will be more difficult but my attorney will hopefully convince the judge that my dad is telling the truth.

Maybe.

Think of this as an expensive lesson about drinking at HOME.

 

[legal12345]

So i spoke with an attorney and he guarenteed that he could get both charges dropped for me, but the license suspension would be more difficult because that is done through the dmv... basically he said the dmv had to prove I was driving, whereas the police can't even prove this; so my odds look pretty good.

cdwjava, thanks again for all your help. Yes you're right, this is a VERY expensive lesson as my attorney's fees will come out to $1500. Ouch.