Alcohol & Drugs: MIP, MIC, Intoxication Mrs.

[sjones1972]

My 16 yr old son was riding around with 3 other boys and they pulled up to a convinient store to use restroom and get a coke and a cop pulled up to store and start telling them they had been seen out on dirt roads drinking. My son was written an MIC ticket when he told the officers he had not been drinking. The other boy in the front seat was given a ticket as well.(he admitted to drinking earlier that day) The two boys in the back seat were not given any tickets and they were given an eye pen test and no breathalizer. My son was not given any test. He did refuse the breathalizer and told the officers to just take him to jail and call his parents because he had not been drinking (which is what we told him to do in this case) the officer called my husband while he had them pulled over and said there was a beer can lying beside the truck and said that he thought one of the boys threw it out. My son said he never saw anyone throw out a beer can. He let the officer search his truck and no alcohol was present. He told my husband he could not let him drive so he just let one of the other boys that did not recieve a ticket to drive my sons truck to a resident he was staying at.He also wrote on my sons ticket (admitted to drinking) when my son said he never admitted to this and while he was writing my son the ticket he kept telling him"you have been drinking you are lying huh?" I see this as harrasement! Is there a chance for us to plead not guilty and win this. I do not see how 2 of the boys can not get tickets but he can give my son a ticket. I do not want this on his record and he can not afford to lose his driver license. He is fixen toleave for college.. What to do?

 

[army judge]

My 16 yr old son was riding around with 3 other boys and they pulled up to a convinient store to use restroom and get a coke and a cop pulled up to store and start telling them they had been seen out on dirt roads drinking. My son was written an MIC ticket when he told the officers he had not been drinking. The other boy in the front seat was given a ticket as well.(he admitted to drinking earlier that day) The two boys in the back seat were not given any tickets and they were given an eye pen test and no breathalizer. My son was not given any test. He did refuse the breathalizer and told the officers to just take him to jail and call his parents because he had not been drinking (which is what we told him to do in this case) the officer called my husband while he had them pulled over and said there was a beer can lying beside the truck and said that he thought one of the boys threw it out. My son said he never saw anyone throw out a beer can. He let the officer search his truck and no alcohol was present. He told my husband he could not let him drive so he just let one of the other boys that did not recieve a ticket to drive my sons truck to a resident he was staying at.He also wrote on my sons ticket (admitted to drinking) when my son said he never admitted to this and while he was writing my son the ticket he kept telling him"you have been drinking you are lying huh?" I see this as harrasement! Is there a chance for us to plead not guilty and win this. I do not see how 2 of the boys can not get tickets but he can give my son a ticket. I do not want this on his record and he can not afford to lose his driver license. He is fixen toleave for college.. What to do?

Why would a parent instruct their child to ask the police to arrest them, if the child is stopped and queried about drinking alcohol?

Most parents KNOW that the police can't question their child UNLESS the parent is present.

The police know this, too.

Why not instruct your child to ask for his parent's, if the police ever questioned him for any reason?

Besides, 16 year old children are NOT taken to jail in Texas.

They would be carted off to the nearest juvenile detention facility.

You do know that 16 year old drivers in Texas are not allowed to carry passengers in their vehicles for a certain time AFTER they've been licensed.

How long had your boy been licensed?

I suggest you retain an attorney.

There are many "oddities" about this story.

 

[sjones1972]

mrs.sj

I am sorry I put 16 my son is 17 yrs old. When the police officer first approached him he was coming out of convinient store and automatically they begin to question him with have you been drinking and he told them no sir I have not. They asked him is that your beer can on the ground beside your truck and he told them no. They then asked him to take a breathalizer and that is when he told them that no not until his parents were notified. (which we told him to not do a thing until we were present) the cop did call us and say your son refused the breathalizer and I am writing him an MIC ticket. The cop told my husband that my son could not drive the truck off and what did we want to do. We were an hour away and my husband said you will haft to wait for us to get there and that is when the officer told my husband he would let one of the other boys drive the truck to where they were staying in that town. The thing I do not understand is why the other 2 boys did not recieve a ticket and they did not have a breathalizer so actually that cop really had no proof that any of them had been drinking and my son and the other 2 kept telling the cop they had not been drinking.My son also stated that the 2 boys who were not given tickets also asked the cop if they needed to take a breathalizer and he told them no and just gave them this eye pen test and the whole time he was giving this test to these 2 boys he kept saying (are you sure you boys arent drunk and been drinking) Just not sure the officers reasoning for giving my son a ticket when he was in the same position as the other 2 boys who did not get tickets. I am speaking with a lawyer on Tuesday of this week.

 

[sjones1972]

Oh and also we did not tell our son to tell the cop to take him to jail, we told him that if we were not present to tell the officer to take him to the jail house and when we arrived he could question him or do whatever. We would never say (just tell him to take you to jail)

 

[army judge]

I am sorry I put 16 my son is 17 yrs old. When the police officer first approached him he was coming out of convinient store and automatically they begin to question him with have you been drinking and he told them no sir I have not. They asked him is that your beer can on the ground beside your truck and he told them no. They then asked him to take a breathalizer and that is when he told them that no not until his parents were notified. (which we told him to not do a thing until we were present) the cop did call us and say your son refused the breathalizer and I am writing him an MIC ticket. The cop told my husband that my son could not drive the truck off and what did we want to do. We were an hour away and my husband said you will haft to wait for us to get there and that is when the officer told my husband he would let one of the other boys drive the truck to where they were staying in that town. The thing I do not understand is why the other 2 boys did not recieve a ticket and they did not have a breathalizer so actually that cop really had no proof that any of them had been drinking and my son and the other 2 kept telling the cop they had not been drinking.My son also stated that the 2 boys who were not given tickets also asked the cop if they needed to take a breathalizer and he told them no and just gave them this eye pen test and the whole time he was giving this test to these 2 boys he kept saying (are you sure you boys arent drunk and been drinking) Just not sure the officers reasoning for giving my son a ticket when he was in the same position as the other 2 boys who did not get tickets. I am speaking with a lawyer on Tuesday of this week.

Thanks for clearing up the age issue.
At 17 years old, your son isn't considered a juvenile.
He's what Texas cops call a keeper.
He won't go to "juvi".
He'll be taken to JAIL, adult JAIL.


Okay, Texas has a zero tolerance policy about under age drinking.
Texas tempers that policy with parental rights.
You, as a parent, can provide alcohol to YOUR child under your supervision.
That doesn't mean get the kid drunk, but it does allow a parent to give their child alcohol.
It can only be done in your presence and under your control.

A couple of examples:
You could allow your kid to drink from your beet stein in a restaurant in Texas.
You could allow your kid to help you carry your bags containing beer to your car.
An adult spouse (above the age of 21) can administer alcohol (in the same manner) to their underage spouse.
Not BF or GF, but legally, wedded spouse.

Texas' zero tolerance policy is a strict liability crime.
A minor can't legally pick up a discarded beer can in Texas.
(Unless you were there and he was under your direct control and supervision.)
If a minor is caught just HOLDING an empty beer can, it is presumptive that he has committed the crime of MINOR in POSSESSION.


I don't see why your boy was charged with MINOR IN CONSUMPTION.
That is an entirely different charge.
It is much harder to prove without some supporting proof.

You need a lawyer for your boy.
You can usually talk to one for free (for the first consult).
It seems he has been improperly charged, unless you don't have all the facts.
A lawyer can help you get them.
From what you describe, your boy should plead NOT GUILTY.
He appears to have certain affirmative defenses.

Here is some information about MIC vs. MIP and alcohol laws for minors in Texas.





http://www.gdcada.org/coalitions/aloud/law.htm

http://ezinearticles.com/?Minor-in-Possession-in-Texas&id=1309811

The Law - Minor in Consumption of Alcohol

§ 106.04. Consumption of Alcohol by a Minor (also referred to as ABC 106.04 or ABC 106.4)

(a) A minor commits an offense if he consumes an alcoholic beverage.

(b) It is an affirmative defense to prosecution under this section that the alcoholic beverage was consumed in the visible presence of the minor's adult parent, guardian, or spouse.

(c) An offense under this section is punishable as provided by Section 106.071.

(d) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition. For the purposes of this subsection:

(1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction of an offense under this section; and

(2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section.

http://www.underage-drinking-attorney.com/MIC-minor-in-consumption.html

Possession of an alcoholic beverage may also include situations in which there is "constructive possession." An example of constructive possession is when a minor is in an automobile where alcohol is readily accessible to any minor passenger in that vehicle. This situation extends to alcohol which is on the car seat, floor, or stored in the trunk of an automobile in which the driver is a minor and is in possession of the keys which unlock the trunk.

Constructive possession may also exist when:

1. you are at a table with several people who are drinking from a pitcher of beer with cups scattered about;
2. you pick up empty beer cans and cups;
3. you hold a friend's beer so that they can put on their jacket; or
4. you use a beer can for a spittoon.

Furthermore, a minor will be considered to be in possession of alcohol simply if he/she is carrying a grocery bag for a friend in which alcohol has been packed.

According to the Texas Alcoholic Beverage Code

106.05 Possession of Alcohol by a Minor

Texas Alcoholic Beverage Code, Sec. 106.05 provides that a minor (a person under the age of 21 years) commits this offense if he possesses an alcoholic beverage.

A minor may possess alcohol if he is in the visible presence of his adult (over the age of 21 years) parent, guardian, spouse, or other adult to whom he has been committed by a court.

A minor may possess alcohol while in the course and scope of his employment if he is an employee of a license or permittee and the employment is not prohibited by this code.

This offense is a Class "C" misdemeanor punished by a fine not to exceed $500.00. However, if a minor has 2 prior convictions, the punishment is a fine of not less than $250.00 or more than $2,000.00 and/or confinement in jail for a term not to exceed 6 months!

The court shall order a convicted minor to perform community service for not less than 8 or more than 12 hours. However, if he has a prior conviction, the community service is not less than 20 hours or more than 40 hours.

The court shall order the Department of Public Safety to suspend the minor's driver's license or permit or, if he does not have one, to deny the issuance of one for: 30 days if he has no prior convictions; 60 days if he has one prior conviction; or 6 months if he has 2 prior convictions.

For the purpose of determining whether a minor has a prior conviction, an order of deferred adjudication for a prior offense is considered a conviction!

The court shall require a convicted minor who has not been previously convicted to attend an alcohol awareness course approved by the Texas Commission on Alcohol and Drug Abuse. If he has been previously convicted, the court may require him to attend the course.

http://www.laviagelaw.com/criminal_law/texas/houston/houston_mip.html

The M.I.P. law is found in the Texas Alcoholic Beverage Code.
A minor commits an offense if he possesses an alcoholic beverage. Minor in Possession is a Class C Misdemeanor. It is not an offense for a minor to possess an alcoholic beverage:

* while in the course and scope of the minor's employment if the minor is an employee of a licensee or permittee and the employment is not prohibited by Texas law; or

* if the minor is in the visible presence of his or her adult parent, guardian, or spouse, or other adult to whom the minor has been committed by a court; or

* if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of the Alcohol and Beverage Code.


Punishment

Fines
M.I.P. is a class C misdemeanor punishable up to a $500 fine. If the minor has two prior convictions the fine increases up to $2,000 and confinement in jail for up to 180 days.

Community Service
The court will order community service for not less than 8 hours or more than 12 hours for a first offense. If the minor has a previous conviction, the court will order community service for not less than 20 hours or more that 40 hours.

Classes
The court will order the minor to take an alcohol awareness class if it is the minor's first offense. If it is a subsequent offense, the court may or may not order the attendance at such a class.

Driver's License Suspension
If the minor has a driver's license the court may order the Texas Department of Public Safety to suspend the license for 30 days. If the minor does not yet have a license, the court may order that the issuance of a driver's license be denied for 30 days.

If the minor has a driver's license and a prior conviction for M.I.P., the court will likely order a 60 day suspension. If the minor has two prior convictions, the court will likely order a 6 month suspension of the minor's driver's license.

Deferred Disposition
If a minor received a deferred disposition on a previous M.I.P. charge that is considered a prior conviction for the purposes of this statute.
Deferred Disposition

If you enter into a plea you may be granted a deferred disposition. This means that you will be on probation for a set period of time not to exceed 180 days. The court will assign certain requirements be met during the deferral period including, but not limited to community service and alcohol awareness class attendance. If you successfully complete the requirements during the deferral period the M.I.P. will be dismissed. However, the M.I.P. will remain on your criminal record unless you petition the court to have the record expunged and qualify under Texas law.

http://www.conroecriminaldefense.com/Conroe_Defense/MIP_MIC_PI.aspx

 

[mightymoose]

I suspect the parents do not yet have the full story.

It is very possible that the officers observed physical signs of intoxication or smelled it on his person. These observations could support their citation in spite of his denial. It is very possible your son did make an admission to the police without realizing it... and they can be quite tricky that way.

Under the circumstances, I think you should be grateful the police contacted him when they did rather than waiting a couple minutes for him to drive away... it sounds like it could very easily have become a DUI. Had they stopped him while driving and he refused a breath test he would have been arrested on the spot.... assuming he was driving.

At some point you will gain access to the police report and will get to find out the other side of the story. You will be inclined to believe your son over the police, but the truth lies somewhere in the middle. The report will likely include various observations that the officers made that your son is still not aware of. His adamant denial when weighed against the observations probably will not hold up.