This summer I was camping with my friend and his family. I got a Minor In Possession of Alcohol at one of the campgrounds. The issuing officer came over to our campsite just to warn us to quiet down as it was passed quiet hours. She then came back after literally 2 seconds to tell us "if she can hear us, were not being quiet" carrying on, she then shined the light at my friend who was holding a beer in his lap, she then proceeded to shine the light on me. There was a can beneath my seat and then she proceeded to question us about our age, who supplied us alcohol etc. I am a first time offender (age 19) and after doing some research I've come to a halt. I was hoping to get a pretrial diversion (I don't have an attorney court date this week) how do I go about this or do I have defense?
There are two possible ways this can be handled and charged. Under Penal Code section 25620, as an infraction for open container only, or under Penal Code section 25662a), minor (under 21) in possession of alcohol, a misdemeanor.
If filed as an infraction, you may get the easier deal where you may have to write an essay about how alcohol is dangerous and you may have to do some community service. The judge has discretion as to how to handle your license and usually does not suspend it.
If the case is filed as a misdemeanor, on a first time offense, there is a mandatory $250 fine ($500 second offense), plus penalties and assessments at the court that can boost the total check you'll write to over $1,000. There is also 24 to 32 hours of mandatory community service, a youth DUI program and one year license suspension (or a one year suspension delaying your ability to obtain a license if you have yet to be issued it). If it is a second conviction of this, add one more year to such a suspension or delay.
When the license is suspended, you can apply for a critical needs restricted license to allow you to get to work, school and alcohol classes only. Under Vehicle Code § § 13353.8 (anyone) and 13202.5(c) (in the case of a person under 21), a California driver’s license holder can petition the DMV to issue a restricted license in lieu of suspension based on a “critical need” to drive. Such a license is called a “critical needs” license.
This restricted license can be based upon three basic grounds in general – school, medical needs or employment. More specifically, they are:
1) School or other public transportation options are inadequate for regular attendance at school and other activities authorized by the school. This application requires a signature by the school principal verifying such facts. The DMV may then issue a restricted license or even a junior permit allowing restricted driving privileges to and from school and school activities only.
2) City or county transportation options are inadequate and operation of a vehicle is necessary due to the illness of a family member. The application needs to be signed by a physician familiar with the illness and should provide a diagnosis, as well as an estimated date when the need for emergency transportation will end.
3) Public transportation is inadequate and the individual needs use of a motor vehicle to travel to and from employment, the pay from which is essential to providing food, clothing and shelter. Essential in this context means that the pay from work must constitute a substantial portion for an individual’s or the family’s basic life necessities.
In our experience, when applying for such a “critical needs” restricted license, it is smart to “go all out.” We recommend printing out a current public bus transportation route map to show the DMV that the public bus stop nearest one’s home is far away. It is also best to show that other members of the household, by name and date of birth, do not have a valid driver’s license.
We also recommend presenting the judge handling the case a declaration explaining why such a license is necessary and asking for the court to find that the need to drive of our client is a “critical need.” We then present this to the DMV to help our client’s application. In some cases, this request can prevent the court from notifying the DMV that a suspension is in order.
If the court does notify the DMV of the conviction, an actual thirty day suspension must usually be served prior to issuance of a restricted license. If the DMV approves such a restricted license, a $125 license reissue fee must be paid and proof of insurance must be shown.
I hope this helps you and answers your question.
I don't know of any crime committed over the age of 18 that goes away at 21 when there's a conviction. You have many questions which is probably best suited for an interview. I realize cost is a concern so here's some advice. Many reputable attorneys offer a free consultation -- something you can afford. So make a few appointments and meet with a few. Good luck.
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Some courts offer a diversion for this offense. If that is the case you need an attorney to obtain it. You risk losing your license for one year. You would be eligible to apply for a critical needs license through the Mandatory Actions Unit in Sacramento. It would also help if you could get the judge to sign a Petition for a Restricted license. You could set matter for trial and hope that officer does not show.
Judges do not treat these offenses on a consistent basis in terms of diversion.
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