Alcohol & Drugs: MIP, MIC, Intoxication Open Container of Alcohol Infraction or Misdemeanor

[BillT]

I was walking with my friend to a comedy show in downtown San Diego and my friend and I were holding red cups with beer in them and we were approached by two undercover police officers and were given green colored citations with misdemeanor crossed out in pen so I'm not sure if the cop was checking it or crossing it out so that it's not a misdemeanor and is just an infraction, but the citation stated "State of California Department of Alcohol Beverage Control - Notice to Appear - Nontraffic - Open Container of Alcohol (INF)." Also it states that I have to go to the Kearny Traffic Court Department to appear in court before a judge in 2 months.

Now my questions are:
(1) Is this an infraction or misdemeanor?
(2) Will this go on my record?
(3) Will I have to report this incident during a background check for jobs and internships?

My concern is that I have been accepted at a respected clinical internship agency in psychology starting in August, but have not started the paper work with the agency that includes a background check. Will I have to report this incident if it is just an infraction that I have to pay a fine for? Will I have to report this at all during the background check?

Thank you,
Bill

 

[CdwJava]

What section was cited?

I used to work in San Diego County and am very familiar with the practices there. So, I suspect this will be charged as an infraction since you are assigned to traffic court in Kearny Mesa.

Whether it goes on your "record" or not depends on what record you are talking about. It should not be on a state criminal history unless you get fingerprinted (aka "booked") prior to trial - this does not regularly occur in traffic court.

Most employers will not ask about infractions, and in any event they can only ask about convictions in CA ... in case it gets dismissed for some reason. However, this IS public record so if they do a public records' search through the San Diego Courts, they may very well locate the citation and the court case. So, if they ask about convictions of ANY criminal offense, you will have to answer "yes" if you complete the paperwork after any conviction. However, as of now you have NOT been convicted, so you might consider completing the documents now. Read the language for disclosure carefully so that you do not lie or fudge the truth. And, if in doubt, be honest with them.

- Carl

 

[BillT]

Thank you for your response.
I'm not sure what section was cited. All it says under Violation(s) - Code/Ordinance - Description is the following: 56.516(9) or could be 56.546(9) or 56.56(9) (SDMC) or (JDMC) Open Container of Alcohol (INF). The police officers hand writing is not clear and I don't even think he wrote the correct violation code. He did check Consolidated Court. My main concern is the background check and if this will hurt me. Should I mention an infraction if it is not a misdemeanor? If they ask about convictions of ANY criminal offense and I have to tell them about this incident, do you think it will be that big of a deal?

Also if it doesn't get dismissed and I have to pay a fine or something does that mean I was convicted of a criminal offense?

 

[CdwJava]

Where were you when you were cited?

Here is what it sounds like you were cited for:

56.59 Open Alcoholic Beverage Containers Prohibited on Posted Premises

(a) Any person who has in his or her possession any bottle, can or other
receptacle containing any alcoholic beverage which has been opened, or a
seal broken, or the contents of which have been partially removed, and who
enters, is on, or remains on the posted premises of, any retail package off–sale alcoholic beverage licensee licensed pursuant to Division 9 of the Business and Professions Code, or on any public sidewalk immediately adjacent to the licensed premises is guilty of an infraction.

(b) All retail package off–sale alcoholic beverage licensees licensed pursuant to Division 9 of the Business and Professions Code to operate in the City of San Diego shall post such licensed premises with notices clearly visible to patrons of the licensee and parking lot and to persons on the public sidewalk that the provisions of subdivision (a) are applicable. Such notices shall include
language that states that possession of any opened alcoholic beverage
container is prohibited by law. Any licensee who does not so post the licensed
premises is guilty of an infraction.

(c) As used in this section "posted premises" means those premises which are
subject to licensure under any retail off–sale alcoholic beverage license, the
parking lot immediately adjacent to the licensed premises and any public
sidewalk immediately adjacent to the licensed premises which are posted with
notices pursuant to subdivision (b).

(d) As used in this section "parking lot immediately adjacent to the licensed
premises" means any parking lot except those described in subdivision (e)
which is contiguous to the licensed premises and any parking lot under the
control of or operated in conjunction with the licensed premises.

(e) The provisions of this section do not apply to any private residential parking lot immediately adjacent to the posted premises.

(f) The subsections of this section are severable. The invalidity of a subsection shall not affect the validity of the remaining subsections.​

Whether you have to mention it or not will depend on what is asked on the application and what kind of job it is. Certain types of employers may ask for a detailed background including detentions and arrests ... I doubt this employer qualifies, but it might.

Labor Code 432.7 spells out what may be asked.

- Carl

 

[BillT]

Thanks for your reply Carl. I was walking on the sidewalk on Front and A street and I did not see any posted premises signs, I don't believe there are any, but I guess in the state of California you can't walk around with beer in a cup unless in licensed premises; I'm from Las Vegas were you can walk around carrying plastic footballs filled with 40oz of liqueur, and a charismatic mayor drinking Bombay Sapphire Gin on the strip in television commercials. I poured it out immediately, unfortunately I still got a citation and have to appear in court. My friend and I think the primary reason we got the citations, instead of a verbal warning, is because the under cover cop that was dealing with my friend, we believe, was in training because he kept asking the cop that was dealing with me what to do. Anyway, I'm 26-years-old, I'm in my 3rd year of graduate school obtaining a Ph.D. in clinical psychology and have never been in trouble with the law. I'm just concerned this little incident will hurt my chances of getting into my clinical internship. I've already been accepted into the agency, however I haven't signed any contracts and I haven't done the background check yet and I don't even want to bring this up. The Judge is likely going to require me to pay a $170 fine or something like that, which I am fine with, but do you know of a way to get this off whatever record it goes on specifically for job hiring background check purposes?

Also I was reading the labor code link you posted and under section 432.7. (a) it states:
"No employer, whether a public agency or private
individual or corporation, shall ask an applicant for employment to
disclose, through any written form or verbally, information
concerning an arrest or detention that did not result in conviction,
or information concerning a referral to, and participation in, any
pretrial or posttrial diversion program, nor shall any employer seek
from any source whatsoever, or utilize, as a factor in determining
any condition of employment including hiring, promotion, termination,
or any apprenticeship training program or any other training program
leading to employment, any record of arrest or detention that did
not result in conviction, or any record regarding a referral to, and
participation in, any pretrial or posttrial diversion program. As
used in this section, a conviction shall include a plea, verdict, or
finding of guilt regardless of whether sentence is imposed by the
court. Nothing in this section shall prevent an employer from asking
an employee or applicant for employment about an arrest for which the
employee or applicant is out on bail or on his or her own
recognizance pending trial."

Regarding my infraction is that considered a conviction since it is a finding of guilt based off to my friend and I admitting to having beer? Also would having to pay a fine be considered a conviction or finding of guilt?

Thanks,
Bill

 

[CdwJava]

If you have to pay anything, you will have been found guilty.

There is really no way to have infractions expunged. But, I seriously doubt that an open container cite is going to cause you much consternation unless you try and lie about it if asked.

- Carl