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Will I serve jail time?

Greenville, NC |

I'm 18 years old. I was charged with driving after consuming >21 yrs old. I registered a .06 BAC. According to my police reports I passed feild tests, was cooperative, and respectful. About 3 months later I was charged with another one I registered .07. However I believe I was stopped illegally on that one, as does my lawyer. I was in my aparment complex driving to my house and a girl in the front seat took a sip of a red solo cup. My window was down and the cop happend to see and said "Stop, what's in that cup?" I don't see that as enough for "probable cause." I don't think I was charged with DUI on either, but honestly I can't remember. My two questions to you are: Do you think that is enough ground for "probably cause?" And if I'm convicted of both, will I serve jail time?

Attorney Answers 4

Posted

If you have a lawyer, you should listen to their advice. There is nothing inherently illegal about drinking from a disposable cup. Generally probable cause requires the observance of behavior that is inconsistent with innocent behavior. Absent some other suspicion then I think there is a problem with any stop and/or search.
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My answers are intended only as general legal advice and are not intended to create an attorney-client relationship. There is no substitute for a full consultation with a local experienced criminal defense attorney. For more answers based on my 19 years of experience visit my website, www.austincriminaldefenseattorney.com

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Posted

Jail time will depend on your prior record. It is possible to serve time, but on the limited information you provided, I do not think that is a reality. In regard to probable cause, the real question is whether the police officer has RS (Reasonable Suspicion of criminal activity). As the Supreme Court has said time and time again, this is a case by case inquiry dependent on the facts alleged by the officer. From the information you provided, it does not appear that there was a sufficient bases to stop (seize) you. However, you should rely on your attorney's advice as he likely knows far more about your case than you have provided here. Good Luck!

The information provided by Attorney Matthew V. Silva is based upon the generic and ambiguous facts presented in short questions. Without a full consultation with an attorney, you should not rely upon any information presented in this forum. The intricate facts of every case are different. The information provided is not legal advice and should not be the basis of any decision without the actual guidance of an attorney. Further, any information provided by Attorney Matthew V. Silva should not be perceived as a willingness to represent you or actual representation. If you would like to speak with Attorney Matthew V. Silva, please call Silva and Sweet, PLLC at 910-333-9833 or visit www.silvaandsweet.com.

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Posted

If you have an attorney, I strongly suggest talking to them, as they will be in a much better position to answer your questions. If you're unhappy with you're attorney, you're free to fire them and hire somebody else. Good luck.

Jasen Nielsen

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Posted

You have received some good advice and everything points to "hire a lawyer." It is up to the Judge to determine if "reasonable and articulable suspicion" existed to stop and detain you existed and it is up to the Judge to determine if "probable cause" existed to place you under arrest. You a qualified attorney to make arguments on your behalf. Best of luck.

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