Skip to comments.I need advice from a legal type for my son.
Posted on 10/20/2012 6:38:19 PM PDT by yankee turned redneck
My son got arrested and paid a fine for drunk in public. The police had no reason to subject him for a sobriety check. Isn't that like a unlawful search/seizure? Can he go back and change his plea and fight it to get it off his record?
Was he drunk in public?
Maybe kick your son in the butt....instead of trying to put some kind of fault on the cops.
If he plead guilty it is a done deal. He can probably get the record expunged.
He paid a fine? That admits guilt doesn’t it? Or, did he contest the charge and was found guilty, thus the fine?
He was walking home from a party in a college town and the “cops” just got done giving a sobriety check on a DUI and they saw him all by himself at 2 AM not stumbling or anything.
He shouldn't have pled guilty. He should have used his right to remain silent, and called a crim law attorney as soon as he was released from custody.
If he pled guilty, he's very likely screwed on legal procedural ground. He can look at expunging his record (depending on state/jurisdiction) at some point and I highly recommend he do so, even if this is a misdemeanor. If it was a civil infraction, then there is no criminal record.
more details. The cops don’t normally arrest drunks unless they are a problem. I would get the arrest report.
That said does he have a problem, that the issue. a ticket for walking while drunk, is less then a misdemeanor. The fight is likely is not worth it unless he want a law enforcement career.
That is what I told him. Just wondering if he can change his plea or appeal?
No chance of getting a conviction expunged. And typically in a plea deal, the defendant waives his rights to appeal or ask for a new trial.. He needs to get a good education and work his butt off and prepare himself for the real world. This petty plea deal will not kill him.
Well try Virginia instead of California in the search string. Google will adapt. If you are serious then go see or call an attorney familiar with VA law.
I was arrested for drinking in public in the aftermath of the Texas Arkansas game in 1965 together with my college roommate. Were we drinking in public? Duh. We appeared in court together in front of “Hanging Judge Ptaki”. We were well dressed and deferential. He inquired if we were students at the University? Yes, your honor. He inquired if we were attentive to our studies? Yes, your honor. He inquired if we attended church? Yes, your honor. Which church did we attend? My roommate reported that he attended the Church of Christ. I said that I attended the Episcopal Church. The Judge asked my roommate if the Church of Christ permitted drinking. Oh no Your Honor, my roommate responded. I knew that my goose was cooked and I was found guilty.
The records of this event were in my permanent military records and always a topic of conversation when I was up for promotion or for renewal of my security clearance. Always got a laugh.
If he was showing any signs of impairment (staggering, stumbling etc), the police had the right to subject him to a sobriety check for his safety and for the safety of the general public.
Drunk (intoxicated) in public is a generic public peace disturbance infraction.
Most courts assess a fine and place Defendant on probation for what is normally a misdemeanor.
Because it is not a Felony, none of his rights to vote/bear arms are removed.
Once you plead guilty, it’s kinda hard to change a plea to not-guilty, or appeal, without a basis in law or fact. Most Judges, in accepting the guilty / plea agreement, advise the Defendant of their rights to a jury / bench trial, where witnesses can be called, etc.
He’s stuck with the drunk in public thing. And no, there’s no requirement to have a person do a breathalyzer to arrest for intoxication under these circumstances. His plea of guilty just means he gave up his right to a trial and that of cross-examination.
Thanks for the replies, I am going to tell him to go to a lawyer/court. Thanks again.
wait did he pay the cop direct? If so, that is graft and corruption. however, he may not have a record if that was the deal.
So If I get drunk at a bar and wisely chose to walk home, I may subject to arrest?
Did he pass the sobriety test?
Sounds like a done deal to me.
First, how old is he?? 2nd....wake up....it was 2 o'clock in the morning !!!
“...if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement.”
Yeah, he should see a lawyer.
I’m not a lawyer... so
Did the cop see him with a beer in hand? Was he lolling back and forth? Did he just projectile vomit against a restaurant window? Did he just urinate on a hydrant? Did he yell over to friends that he couldn’t believe he was standing after 7 Jack and Cokes?
Get a lawyer and enough money together and you can get nearly anything erased. A simple PD is no big deal. Save your money and let the kid grow up and don’t do it again
Thank you that is what I was looking for.
Well, you've come to the right place.
Let me go get some popcorn popping first, though. Don't start without me.
I believe that is just for arrests, NOT convictions.
But he should see a lawyer, which I am not.
Shouldn’t be but $50 or so to find out.
So If I get drunk at a bar and wisely chose to walk home, I may subject to arrest?
Yes. Drunk people have been known to stagger into traffic and get themselves killed and cause other mayhem. LEO judgment involved of course. Of course, the economy is bad, and revenue is short. So, be careful out there.
Not going to happen in Virginia, sorry. The Virginia law cited by an earlier poster only applies if the defendant was acquitted or nolled. Virginia is very strict about expungements, and generally speaking once a plea has been taken it’s highly unlikely to be undone. His only realistic option is to wait five years, not get into any trouble and pay his taxes, and then apply to the governor for a pardon. This will not erase his record, but whenever he has to reveal the conviction he can then immediately show them a gubernatorial pardon to lighten the blow.
He did nothing to be subject for a check.
That’s why I said to him why pay the fine an not get a PD to give a fight. Thanks
Let me go get some popcorn popping first, though. Don’t start without me
LOL...... I just finished a bag. A couple of minutes in the microwave and I enjoyed it while following this thread. Saturday night, this thread and a bag of popcorn thus it doesn’t take much for entertainment. LOL.
P.S. He is 22 and was walking in Harrisonburgh, VA
You night get more usable advice here if you discussed WHY the matter has come up.
An employment, military, or school complication?
After all, if he stays out of trouble for a while this won’t be significant to anyone. It’s just one of the stupid things kids do.
I don’t suppose the kid’s alias is Tater Salad?
My advice to my son would go like this, if I were in your place:
“You were walking around drunk, you got arrested, and you now want my help to get you out of it somehow? No, I’m not going to do that. You’re a grown man now, and you will bear the consequences of your actions yourself. You reap what you sow- and right now, you’ve planted kudzu.”
Well, since you were there and saw it....
I was going to tell you $10,000 to a good lawyer might get the problem solved. But I see that you are in California, so better make that $20K for a good lawyer.
Or save your money and tell your son to quit stumbling around drunk after midnight. At least he wasn't driving - that would have put him in a world of hurt these days.
If there was no evidence of your son being drunk under the legal definition of the term in Virginia, then there was no basis for the charge.
However, if your son has pled guilty, and by paying the fine he admitted guilt, then there really isn't a great deal that can be done to my knowledge. Virginia can be sort of hardassed about certain things. I know hiring a lawyer to get a speeding ticket reduced is far more difficult, as is getting something expunged.
Like I asked isn’t this like unlawful search and seizure?? He did nothing wrong other than having drinks and walking home.
The best place to get advice of this nature is a bar. If you have a pub in your neighborhood go in in the evening and there should be several experts present
He’s over 18, isn’t he? He’s an adult, not a child. Why don’t you let him deal with it? He made the adult decision to get drunk, the adult decision to be out in public drunk, the adult decision to plead guilty. The horse has left the barn—and your son, a grown man, has left the house. Let him conduct his own life and solve his own problems instead of looking for some way to get him off the hook for something he really did.
What more could a guy ask for.
Pay for a good attorney and fight it.
“So If I get drunk at a bar and wisely chose to walk home, I may subject to arrest?”
I know of a case where this exact situation occurred in Auburn, Al. A guy went to a bar about a half mile from his house for last stop of the night. Decided to walk home instead of drive; got arrested for public intoxication. Even the cops in the neighboring town of Opelika thought it was the stupidest thing they had ever heard of. The Auburn cops could have given him a ride if they were worried about his safety.
On the off chance you don't know how things work in small town America -
From what you have indicated, there were two cops and one arrestee. If he drags it into court, I'll guarantee that the cops will have their story straight and will testify as to plenty of probable cause. And if he disputes it, it will just be more evidence that he was too drunk to realize how drunk he was.
Then, unless the judge dislikes the cops for some reason, he's going to find your son guilty to protect the cops and the taxpayers.
And finally, since he put everyone to the trouble of a trial, he may well get jail time instead of just a fine.
But if you and your son want a full education, send him the $10K I mentioned above (since this wasn't in California, DC, or the urban northeast) and the right lawyer might be able to fix things.
Glad you are not my dad, no offense. You go to the wall for your kids in my book. Mess with one of my kids and you have trouble on your hands.
In Texas .08 is a formality. Police can charge DWI after one beer IF the officer says your driving was impaired. It happens all the time.
Sounds arbitrary and capricious. I’m surprised such a subjective assessment with such costly, dire consequences has been allowed to stand in Texas.
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