Well my nephew made a big mistake. He went to a wedding reception at the age of 18 last month and had a few beers and was arrested for minor consumption and public intoxication . Now he wants to apply for his LTCH . He just turned 19 today,the only other trouble he has had is a speeding ticket two years ago. So what do you think, Will they let him have one or not?
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Well my nephew made a big mistake.
- Thread starter rhinoabe
- Start date
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GuyRelford
Master
An "alcohol abuser" is disqualified from being a "proper person" to receive a LTCH, and that is defined as a person who has committed two or more alcohol-related offenses, at least one of which resulted in a conviction or treatment in an alcohol treatment program within three years of the application. Ind. Code 35-47-1-2.
Guy
You have to do quite a bit for a public intox to stick. It seems like there might be more to the story. Normally cops at a reception won't mess with minors having a few beers unless they are on a power trip, your nephew was being out of control, causing a ruckus, or being stupid and mouthing off.
1. Get a lawyer, any decent attorney should be able to get the public intox dropped with some community service. Same deal with MIP and could get dropped if he is a good kid depending on the prosecutor.
2. So far he has not been convicted of anything. The lawyer will file for a continuance or two to find evidence. In that time, the answer to 35-47-1-2 is "No".
3. If he just paid the fines and plead guilty? That would be a bigger mistake than actually getting caught. He will be in for a few rough years having to explain to potential employers, internships, schools, insurance companies, why he got a public intox. While it is a misdemeanor, it is public record and easily searchable.
1. Get a lawyer, any decent attorney should be able to get the public intox dropped with some community service. Same deal with MIP and could get dropped if he is a good kid depending on the prosecutor.
2. So far he has not been convicted of anything. The lawyer will file for a continuance or two to find evidence. In that time, the answer to 35-47-1-2 is "No".
3. If he just paid the fines and plead guilty? That would be a bigger mistake than actually getting caught. He will be in for a few rough years having to explain to potential employers, internships, schools, insurance companies, why he got a public intox. While it is a misdemeanor, it is public record and easily searchable.
Guy,
While the code is non-specific, how likely is a successful argument that the minor consumption and the PI were the same event, and thus, only one offense? It seems clear to me that the intent of the law was to allow for one mistake and the second "offense" to be used as an indication that the offender had not learned his lesson.
OP, I'm not an attorney, but I'd advise against him applying for his LTCH while charges are pending; it would truly suck to make application, pay the fees, obtain the license, and then instantly become one of the statistics of people for which the LTCH is revoked or suspended.
Since you said he did it, see if one of the charges would be dropped (I'd think the PI would be the better one to lose, but again, I'm no lawyer; I'd be a lot more forgiving of a minor consumption than I would a PI.) and pay the fee on the other. Then make application and get the license, and here's the key part: Swear off alcohol until he's legal. He cannot afford a second charge at that point.
IANAL, TINLA.
Blessings,
Bill
Yes, he was going to plead guilty. He told me the local pd. NewPoint (micro small town) found him sleeping in his car after the reception ended. Woke him up asked for his DL. and gave him a breath test .02 so they took him in for Pi and minor con. Their might be more to it, i will have to have another talk with him.
Thanks.
Thanks.
Hoosierdood
Grandmaster
Since the legal limit for intoxication is .08, how did they get him for PI? I can see the minor consumption, but PI? That's a stretch.
heisenberg
Plinker
- Dec 25, 2011
- 7
- 1
Because the acceptable public intoxication level for a minor is .00
Actually, wait... public intoxication is not based on a BAC like DUI. It is solely at the 'discretion' of the office to determine if someone is intoxicated (or, at least, thats the only law I can find on it).
IC 7.1-5-1-3
Public intoxication prohibited
Sec. 3. It is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a controlled substance (as defined in IC 35-48-1-9).
(Formerly: Acts 1973, P.L.55, SEC.1.) As amended by Acts 1978, P.L.2, SEC.702; P.L.213-2001, SEC.2.
Prosecutors/Judges (at least here in Indy) require signs of impairment for this charge. Similar to DUI without the BAC. You know that a DUI charge does not need a BAC. In fact there are 2 statutes for this. One is operating while impaired and the other is operating with a BAC .08 and above. I simplified it but you get the jist.
IC 9-30-5-2
Class A misdemeanor
Sec. 2. (a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor.
(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.
As added by P.L.2-1991, SEC.18. Amended by P.L.175-2001, SEC.6.
IC 9-30-5-1
Class C misdemeanor; defense
Sec. 1. (a) A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person's blood; or
(2) two hundred ten (210) liters of the person's breath;
commits a Class C misdemeanor.
(b) A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person's blood; or
(2) two hundred ten (210) liters of the person's breath;
commits a Class A misdemeanor.
(c) A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's body commits a Class C misdemeanor.
(d) It is a defense to subsection (c) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner's professional practice.
As added by P.L.2-1991, SEC.18. Amended by P.L.33-1997, SEC.7; P.L.266-1999, SEC.2; P.L.1-2000, SEC.6; P.L.1-2000, SEC.7; P.L.175-2001, SEC.5.
GuyRelford
Master
Because different facts support the two convictions, I'm not very confident that the ISP would see this as only one offense. For example, it probably wouldn't constitute double jeopardy to be prosecuted for both offenses, despite the fact they both involve the consumption of alcohol. But it is certainly an argument and I can ask that question the next time I talk to the ISP lawyer who reviews the applications and represents the State at revocation hearings and appeals of denials.
There has to be more to this story. No cop in his right mind is going to give an 18 year old a PI and MIP for sleeping it off in his car (Unless its parked in the middle of a busy intersection, or it is a stolen cop car type thing). LOTS of paper work for such a questionable offense. A 0.02 BAC is hardly an offense especially when using a portable breath test, the test at the station is what they actually have to use (Or blood test). Smart way to handle (assuming something bad will happen if you blow) is to refuse, and make them work for it. Less evidence you give them the better. A 0.02 can be blown after taking some NyQuil or mouth wash. A prosecutor would have to be crazy to think that would stick, or in this case, it constitutes a PI.
So lets assume, your nephew admitted to having a few beers (Cop can't PROVE anything as he didn't see it.), now he is guilty of MIP by his own admission (Not smart). Please, Please tell him not to pay the fines to Barney Fife and the small town loonies. Make them work for their money and PROVE the charges. Was the portable unit in calibration? Was there grounds for a breath test? Why did the cop talk to him in the first place? Was there obvious impairment? Pretty difficult to tell through a car window unless he had empty beer bottles out in the open. He got in a fight with his parents and was taking a nap. Get my drift? These are all things a good lawyer can question, if these are not answered correctly, the entire incident might get thrown out due to illegal search and seizure (Using evidence "Breath Test" to secure a conviction for both offenses) due to lack of probable cause (and if it went down like you say, rightfully so, doesn't sound like a bad kid, a bad kid would have driven home).
I agree with Guy, this would be considered two separate offenses. You can be charged with multiple offenses for one action. I.E. speeding gets you a ticket and reckless driving. Please take note, the stipulation on the code listed above says specifically at the application and reception of the LTCH. It doesn't reference anything after you have received it and are a current holder. I am not an attorney and I have not heard of anyone loosing their LTCH due to a second alcohol offense within three years.
Good luck, I hope he is a good kid and get his LTCH if he is responsible and truly deserving. He showed good judgement sleeping in the car and not driving (Kids will be kids, I don't hold it against him for having a few drinks at a reception).
So lets assume, your nephew admitted to having a few beers (Cop can't PROVE anything as he didn't see it.), now he is guilty of MIP by his own admission (Not smart). Please, Please tell him not to pay the fines to Barney Fife and the small town loonies. Make them work for their money and PROVE the charges. Was the portable unit in calibration? Was there grounds for a breath test? Why did the cop talk to him in the first place? Was there obvious impairment? Pretty difficult to tell through a car window unless he had empty beer bottles out in the open. He got in a fight with his parents and was taking a nap. Get my drift? These are all things a good lawyer can question, if these are not answered correctly, the entire incident might get thrown out due to illegal search and seizure (Using evidence "Breath Test" to secure a conviction for both offenses) due to lack of probable cause (and if it went down like you say, rightfully so, doesn't sound like a bad kid, a bad kid would have driven home).
I agree with Guy, this would be considered two separate offenses. You can be charged with multiple offenses for one action. I.E. speeding gets you a ticket and reckless driving. Please take note, the stipulation on the code listed above says specifically at the application and reception of the LTCH. It doesn't reference anything after you have received it and are a current holder. I am not an attorney and I have not heard of anyone loosing their LTCH due to a second alcohol offense within three years.
Good luck, I hope he is a good kid and get his LTCH if he is responsible and truly deserving. He showed good judgement sleeping in the car and not driving (Kids will be kids, I don't hold it against him for having a few drinks at a reception).
Absolutely, hold it against him. He did something illegal. He knew it was illegal when he did it. If he's not held responsible for his actions what lesson does he learn? He learns that he can get away with it. Not a good thing. Now, he doesn't necessarily need to have the whole book thrown at him unless it was willful, repeated behavior. But some kind of consequence? Most certainly.
Um...
Underlined text is my emphasis, however, it is the law, and not notifying is yet another violation.
IANAL.
Blessings,
Bill
He knows he was wrong and did not plan on applying for his LTCH until after his court date. But he does feel the public intoxication is out of line as he was sound asleep in his truck.and that is the only ticket he is going to ask to be dropped
I was looking at your original quote with the first 35-47-1-7 when I typed that. Thank you for the update.
The second doesn't disqualify you either as I read it. What that reads to me is that it goes to a review board for further explanation.
As to the other guy. Does the punishment fit the crime? Absolutely not. Sounds like a good responsible kid. If you hold it against him, when he is older and decides to drive home after he is legal to drink (if its not this kid, it might be the next one that Barney screws with), (he won't be sleeping in the car because he knows how that ends), and then hurts himself (or your family), then you have a real issue. He is 18 and had a few beers in a controlled environment. My feeling is, he is going to have a few beers either way, one way can be in a controlled environment with adults around, the other is out in the woods with his buddies, someones garage or what not. Did he break the law? Sure, nothing a few hours of community service can't fix. Learn from it and move on.
If you want to follow the law to the T, it goes both ways. If there was no probable cause (Officer needs to follow the rules too), then there was no reason to breath test him, there for no evidence for EITHER issue. Since this officer was so adamant in using the fullest extent of the law against this kid, I would do my best to make him look like a moron and try to get both issues dropped whether he committed the offense or not. I have very high respect for good LEO, I am friends with a few, the bad ones (that don't use their head and common sense) need to go. Would you fight a ticket you received for 1 MPH over the speed limit? I sure would (smart thing to do), and I would probably win.
What did I learn from my few indiscretions (nothing serious) with the law? I know how to handle LEO and make sure if I do run into an over zealous officer that wants to prove a point, Barny Fife wont be abusing his power with me with out resistance (he is LEO after all, only so much you can do at that moment, that's what the court system is for). I've had numerous tickets dismissed due to officer mistakes (Yes I was guilty on some of them). That's kind of what this website is about, know your rights, exercise them or lose them.
The second doesn't disqualify you either as I read it. What that reads to me is that it goes to a review board for further explanation.
As to the other guy. Does the punishment fit the crime? Absolutely not. Sounds like a good responsible kid. If you hold it against him, when he is older and decides to drive home after he is legal to drink (if its not this kid, it might be the next one that Barney screws with), (he won't be sleeping in the car because he knows how that ends), and then hurts himself (or your family), then you have a real issue. He is 18 and had a few beers in a controlled environment. My feeling is, he is going to have a few beers either way, one way can be in a controlled environment with adults around, the other is out in the woods with his buddies, someones garage or what not. Did he break the law? Sure, nothing a few hours of community service can't fix. Learn from it and move on.
If you want to follow the law to the T, it goes both ways. If there was no probable cause (Officer needs to follow the rules too), then there was no reason to breath test him, there for no evidence for EITHER issue. Since this officer was so adamant in using the fullest extent of the law against this kid, I would do my best to make him look like a moron and try to get both issues dropped whether he committed the offense or not. I have very high respect for good LEO, I am friends with a few, the bad ones (that don't use their head and common sense) need to go. Would you fight a ticket you received for 1 MPH over the speed limit? I sure would (smart thing to do), and I would probably win.
What did I learn from my few indiscretions (nothing serious) with the law? I know how to handle LEO and make sure if I do run into an over zealous officer that wants to prove a point, Barny Fife wont be abusing his power with me with out resistance (he is LEO after all, only so much you can do at that moment, that's what the court system is for). I've had numerous tickets dismissed due to officer mistakes (Yes I was guilty on some of them). That's kind of what this website is about, know your rights, exercise them or lose them.
Confusion
This is a common misconception. .08 has nothing to do with a "legal limit for intoxication". .08% is the minimum blood alcohol level which constitutes DUI. People have very different levels of tolerance for alcohol. Some could be staggering drunk yet still under .08 while others might appear to be stone sober at a higher level.
This is a common misconception. .08 has nothing to do with a "legal limit for intoxication". .08% is the minimum blood alcohol level which constitutes DUI. People have very different levels of tolerance for alcohol. Some could be staggering drunk yet still under .08 while others might appear to be stone sober at a higher level.
He's not 21, he shouldn't be drinking. It's against the law. If the officer has an electronic ticket machine, it's just a few key strokes away from a ticket. Also officers usually watch the person for a given time to allow any residual alcohol to disapate from the mouth.
Sounds to me like he was passed out in a car. That's probably grounds to stop and ask about what's going on. Most any officer can smell alcohol coming from the breath of a person who has been drinking. That's a no-brainer.
Like I said before the PC was his being passed out in the car. I admit that he probably isn't a bad kid. He is still 18 and should not be drinking. He probably won't lose his right to get a ltch but should tell him to straighten up. The decisions he makes now will effect him for the rest of his life. He doesn't need a PI on his record.
Until you posted this I was wondering if it was a good idea for him to even have a gun!
However, now my personal opinion is that he has probably learned his lesson. Do whatever you can for him legally. You don't get to be an Eagle Scout by not taking personal responsibility and blaming others, after all. And he sounds like a good kid at heart. Besides, isn't the real heart of the law to rehabilitate offenders and convince them not to do harmful, stupid things before they really do something that could hurt someone or themselves? If he is everything you say he is, then the personal embarrassment of this is enough to stop him in the future and, in this case, the law would have done its real job. Just my .02.
I had suspected you were LEO at first due to your inability to think in open terms (Law is the law ala Judge Dredd Style), now I am positive you are LEO. LEO often have trouble understanding the big picture in life. As someone had recently commented, what you are looking for (and what the law tries to accomplish) is a behavior change. For some people that means jail (or death for those that will never learn), for others getting the ticket/embarrassment is enough. I hope this kid gets a good lawyer and embarrasses the cop so he learns his actions were over the top. What a waste of tax payer money in this situation. I could only hope this would go to trial and I be on the jury. NOT GUILTY!!
We have different opinions, and I don't expect to change yours. I know for certain, when you come up against an informed, intelligent citizen (such as myself and many others on this forum), you will get publicly humiliated in front of a judge and your peers. Depending on the situation, it might lead to a lawsuit.
Sleeping in your car is not a crime. Luckily for the cop Harassing someone without probable cause is not either (It should be). He most likely had better things to do than to harrass this kid, maybe catch someone doing something actually detrimental to society (Robbery, Cooking Meth, Assault, child molester, etc). Lets concentrate on becoming a more crime free safe community. Kind of what this forum also speaks to, safety, security, and stopping the people who are actually bad and not some kid having a beer.
Stay safe, and have a Good Day!!
We have different opinions, and I don't expect to change yours. I know for certain, when you come up against an informed, intelligent citizen (such as myself and many others on this forum), you will get publicly humiliated in front of a judge and your peers. Depending on the situation, it might lead to a lawsuit.
Sleeping in your car is not a crime. Luckily for the cop Harassing someone without probable cause is not either (It should be). He most likely had better things to do than to harrass this kid, maybe catch someone doing something actually detrimental to society (Robbery, Cooking Meth, Assault, child molester, etc). Lets concentrate on becoming a more crime free safe community. Kind of what this forum also speaks to, safety, security, and stopping the people who are actually bad and not some kid having a beer.
Stay safe, and have a Good Day!!
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