Minor in possession of tobacco &Tobacco-free zone

[thekyle121]

So my son who is 15 got a minor in possession of tobacco when police found him holding a unlit cigarette and a lighter. Court date is in a month. He also got a citation for violation of a Tobacco-Free zone. But he wasn't even smoking it! Police department: Greenwood Village, CO. The code for the pos. of tobacco is: 8-28-070. And the code for the tobacco free zone violation is 09-12-200. How much is this going to be and what should I expect in court?

 

[FlyingRon]

Unless he "used" the tobacco product in the tobacco free zone, he is not guilty of that offense:

9.12.200 Drug and tobacco-free zones.

A. All property, including without limitation park lands, streets, sidewalks and other rights-of-way, owned or controlled by the city or county and located within one thousand feet of any public elementary school property, middle school property or high school property within the city is declared to be a drug and tobacco-free zone.
B. It is unlawful for any person under the age of twenty-one years to use any cigarette, tobacco products, as that term is defined by C.R.S. § 39-28.5-101(5), or controlled substance, as that term is defined by C.R.S. § 18-18-102(5), within any drug and tobacco-free zone.
C. Violations of this section shall be punishable by a mandatory minimum fine of two hundred dollars, together with a mandatory minimum sentence of twenty-four hours of useful community service provided, however, that the twenty-four hours of useful community service shall be reduced by two hours for every one hour spent in attendance at a city-approved drug or tobacco addiction or abuse program. (Ord. 2000-20 § 1)​

 

[thekyle121]

Unless he "used" the tobacco product in the tobacco free zone, he is not guilty of that offense:

9.12.200 Drug and tobacco-free zones.

A. All property, including without limitation park lands, streets, sidewalks and other rights-of-way, owned or controlled by the city or county and located within one thousand feet of any public elementary school property, middle school property or high school property within the city is declared to be a drug and tobacco-free zone.
B. It is unlawful for any person under the age of twenty-one years to use any cigarette, tobacco products, as that term is defined by C.R.S. § 39-28.5-101(5), or controlled substance, as that term is defined by C.R.S. § 18-18-102(5), within any drug and tobacco-free zone.
C. Violations of this section shall be punishable by a mandatory minimum fine of two hundred dollars, together with a mandatory minimum sentence of twenty-four hours of useful community service provided, however, that the twenty-four hours of useful community service shall be reduced by two hours for every one hour spent in attendance at a city-approved drug or tobacco addiction or abuse program. (Ord. 2000-20 § 1)​

So what should I do he said it wasn't even lighted it was in his mouth than. Should we just tell the courts this?

 

[mistoffolees]

So what should I do he said it wasn't even lighted it was in his mouth than. Should we just tell the courts this?

Why? The charge is for possession. If he possessed the tobacco, then it doesn't matter if it was lit.

Time to start teaching your child that actions have consequences - and let him pay the piper.

 

[FlyingRon]

Why? The charge is for possession. If he possessed the tobacco, then it doesn't matter if it was lit.

No, he was charged with two offenses: Possession and use of Tobacco in a Tobacco-Free zone. While he's guilty as hell of possession, walking around with an unlit cigarette in your mouth is not a violation of the latter.

 

[stealth2]

Unless he "used" the tobacco product in the tobacco free zone, he is not guilty of that offense:

9.12.200 Drug and tobacco-free zones.

A. All property, including without limitation park lands, streets, sidewalks and other rights-of-way, owned or controlled by the city or county and located within one thousand feet of any public elementary school property, middle school property or high school property within the city is declared to be a drug and tobacco-free zone.
B. It is unlawful for any person under the age of twenty-one years to use any cigarette, tobacco products, as that term is defined by C.R.S. § 39-28.5-101(5), or controlled substance, as that term is defined by C.R.S. § 18-18-102(5), within any drug and tobacco-free zone.
C. Violations of this section shall be punishable by a mandatory minimum fine of two hundred dollars, together with a mandatory minimum sentence of twenty-four hours of useful community service provided, however, that the twenty-four hours of useful community service shall be reduced by two hours for every one hour spent in attendance at a city-approved drug or tobacco addiction or abuse program. (Ord. 2000-20 § 1)​

I suspect that they will argue that sucking on an unlit cigarette constitutes "use".

In any event, OP sounds like just one more parent looking to get her precious baby boy off the hook for his misbehavior.

 

[thekyle121]

I suspect that they will argue that sucking on an unlit cigarette constitutes "use".

In any event, OP sounds like just one more parent looking to get her precious baby boy off the hook for his misbehavior.

EXCUSE ME?!? Thats not what I'm trying to do at all!! I have told him that he will have to pay for the fines and he is well aware of that I've never been in this situation before that is why I am asking this forum on what should I expect when I head into court with him next month. I don't need your own personal opinion about me if I did I'd be asking. Next time shut your mouth and just give me an answer.

 

[stealth2]

EXCUSE ME?!? Thats not what I'm trying to do at all!! I have told him that he will have to pay for the fines and he is well aware of that I've never been in this situation before that is why I am asking this forum on what should I expect when I head into court with him next month. I don't need your own personal opinion about me if I did I'd be asking. Next time shut your mouth and just give me an answer.

See... YOU are not in this situation. Your SON is. You don't get to make it all better for him, nor do YOU expect anything in court. This is HIS legal situation. Help him find a lawyer, but otherwise? Time to make him man up and deal with it himself.

So yeah - you're excused.

 

[thekyle121]

See... YOU are not in this situation. Your SON is. You don't get to make it all better for him, nor do YOU expect anything in court. This is HIS legal situation. Help him find a lawyer, but otherwise? Time to make him man up and deal with it himself.

So yeah - you're excused.

Do you have any kids yourself? By the way it sounds it seems like you don't. He's only 15! I'm not trying to make it "all better for him" I'm trying to help him! We were all teens once we all made stupid mistakes. He doesn't need to do this all "by himself" it was one cigarette big deal sure I did ground him he did get his phone taken away and he does have to pay this fine. He's not getting the easy way out of this nor is he getting pounced on for this. Pardon my language but your acting like a prick.

 

[stealth2]

Do you have any kids yourself? By the way it sounds it seems like you don't.

Sure do - 17 & 19. Funny... neither have been in trouble with the cops at this point.

He's only 15! I'm not trying to make it "all better for him" I'm trying to help him! We were all teens once we all made stupid mistakes. He doesn't need to do this all "by himself" it was one cigarette big deal sure I did ground him he did get his phone taken away and he does have to pay this fine. He's not getting the easy way out of this nor is he getting pounced on for this.

What you don't seem to understand is that YOU have no say in court. YOU don't tell the court anything. YOU get to sit quietly while he deals with it with his lawyer.

What would *I* do if it were one of my kids? They know that they are not to say anything to the cops, except ask for my presence and/or a lawyer. If it's me? Then the only thing *I* would do would be get them a lawyer and tell them to say nothing to anyone except their lawyer.

Pardon my language but your acting like a prick.

THAT is something I don't have. Sorry.

 

[mistoffolees]

No, he was charged with two offenses: Possession and use of Tobacco in a Tobacco-Free zone. While he's guilty as hell of possession, walking around with an unlit cigarette in your mouth is not a violation of the latter.

Says who? Where is your legal reference to establish that?

I did some searching and it's not easy to define whether an unlit cigarette in the mouth constitutes 'use', but several sites suggest that it does. I couldn't find any that specifically say it does not:

http://bot.fiu.edu/files/FIU 113 Smoke and Tobacco-Free Campus 11-17-10.pdf
Youth Media Risk
http://ndsba.org/policies/hebron/DADE.PDF

The kid is free to argue that an unlit cigarette does not constitute 'use' - and he might even win. But it seems to me that he would be better off using that money for a smoking cessation program rather than spending a fortune on legal fees to fight a battle that could be settled by simply paying a couple of hundred dollar (max) fine.

 

[thekyle121]

Says who? Where is your legal reference to establish that?

I did some searching and it's not easy to define whether an unlit cigarette in the mouth constitutes 'use', but several sites suggest that it does. I couldn't find any that specifically say it does not:

http://bot.fiu.edu/files/FIU 113 Smoke and Tobacco-Free Campus 11-17-10.pdf
Youth Media Risk
http://ndsba.org/policies/hebron/DADE.PDF

The kid is free to argue that an unlit cigarette does not constitute 'use' - and he might even win. But it seems to me that he would be better off using that money for a smoking cessation program rather than spending a fortune on legal fees to fight a battle that could be settled by simply paying a couple of hundred dollar (max) fine.

I truly appreciate your help in this , I don't feel the need to get a lawyer so I guess he's going to just go ahead and confess to the court, thank you.

 

[thekyle121]

Sure do - 17 & 19. Funny... neither have been in trouble with the cops at this point.



What you don't seem to understand is that YOU have no say in court. YOU don't tell the court anything. YOU get to sit quietly while he deals with it with his lawyer.

What would *I* do if it were one of my kids? They know that they are not to say anything to the cops, except ask for my presence and/or a lawyer. If it's me? Then the only thing *I* would do would be get them a lawyer and tell them to say nothing to anyone except their lawyer.



THAT is something I don't have. Sorry.

I know that I have no say in court, I'm saying why should I just leave him alone all the way through this. He doesn't need a lawyer for this, as the other members said it'll probably cost more money to hire one than for the actual fines. The maximum total fine looks to be $300 with 24 hours community service OR a tobacco addiction class. He will most likely just take the community service. So I do appreciate your help, but the first comment you made about "keeping my precious son out of trouble" was unnecessary.

 

[Handcoc]

If the court finds that he was not suing the tobacco that he was carrying then he should be found not guilty of the tobacco-free silly law.

He should ask for a summary judgment on that count when the state rests as they have not proved the elements of the offense.

If the law is vague on the word "use" then this vagueness favors the defendant, no the state.

It is clear the use of a cigarette - to provide smoke to inhale. No smoke, no use.

 

[mistoffolees]

If the court finds that he was not suing the tobacco that he was carrying then he should be found not guilty of the tobacco-free silly law.

He should ask for a summary judgment on that count when the state rests as they have not proved the elements of the offense.

If the law is vague on the word "use" then this vagueness favors the defendant, no the state.

It is clear the use of a cigarette - to provide smoke to inhale. No smoke, no use.

In your opinion. Not apparently in everyone's opinion - as shown above.

For example, one reference I came across made the argument that since teenagers partially used cigarettes to look 'cool', that having a cigarette tucked behind the ear constituted use. Another said that having a cigarette in the mouth fulfilled some of the purpose of smoking, so it constituted use.

I wouldn't necessarily buy those arguments, but your claim that walking around with an unlit cigarette in your mouth is NOT use isn't a slam dunk, either. It could go either way. In fact, I doubt very much that this kid was the first kid ever ticketed for that charge and the judge has probably already convicted some - so he'd be unlikely to rule otherwise.

Bottom line is that the kid messed up. He shouldn't have had the tobacco in the first place and shouldn't have had it in a tobacco free zone. Aside from the developmental principle that he should own up to his mistakes, from a practical standpoint it's likely to be less expensive and easier to simply admit it and tell the judge it wasn't lit and ask for mercy - rather than attacking the law in the first place.