Legal Question in Criminal Law in California

I was cited about a couple of weeks ago for a 41.27(c) ticket. I was outside my fraternity with a cup of alcohol when the cops drove by. They asked me what it was, I said it was just water and dropped the cup. After doing so they immediately put me in handcuffs and began writing me up. They never picked up the cup from the floor or smelled it but on the ticket they wrote that the liquid emitted an odor of alcohol and that I threw the cup to the floor when they asked me what was in it. Although the charge is circled as misdemeanor on the ticket, it is filed as an infraction. I'd like to know whether I could plead not guilty and win the case by saying that I was actually drinking water and claiming that the officer did not smell the cup but just smelled alcohol on me.

Alternatively, I am thinking of going with the defense that I live on a street lined with fraternities and that everyone is always drinking outside their house or while walking around.

Please let me know what I should do. Whether I should plead not guilty and which defense I should go with or whether I should just plead guilty.

Thanks.


Asked on 6/04/10, 3:48 pm

4 Answers from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Since your first alternative seems to involve committing perjury, I strongly recommend against it. Perjury is much more serious than what you're currently charged with.

I'm not sure what your second alternative is supposed to mean. If your argument is that it was OK to drink outdoors because everyone else was doing it, you won't get very far. If you're suggesting that the police couldn't tell where the smell of alcohol was coming from, then I don't think that will work either.

If you're facing a misdemeanor charge, you should get a lawyer. She can try to negotiate a deal for you involving a guilty plea to a lesser charge. That's something you won't know how to do.

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Answered on 6/04/10, 7:00 pm
Robert Marshall Law Office of Robert L, Marshall

Lying under oath is perjury, which is a felony. Committing a felony to fight an infraction is like burning down your house because there's a fly inside, instead of swatting the fly.

What's more, no attorney in his or her right mind would tell you to commit perjury. It is a serious ethical violation for a lawyer to advise someone to commit a crime.

The prosecution would have to prove the substance in the cup was alcohol. If it wasn't booze, why would you have thrown it down?

"Everybody else does it" is not a defense.

Spend less time partying and more time getting an education. It will probably improve your decision-making skills.

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Answered on 6/04/10, 7:25 pm
Anthony Roach Law Office of Anthony A. Roach

You have told us that it was alcohol, so what you are asking us as attorneys is to advise you to lie. I'm sorry, but that is unethical. Since it is only an infraction, I would own up to and be a man and admit that you were guilty and take the consequences. I have friends serving overseas right now doing a lot more responsible stuff than you are.

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Answered on 6/04/10, 10:08 pm
Terry A. Nelson Nelson & Lawless

You 'CAN' do anything you like, whether dumb or not. You already demonstrated that. Your attorney can not. It's up to you whether you hire an attorney, or qualify for the public defender. But, no attorney, here or elsewhere, is going to consent or allow you to lie in court, committing perjury. Consult with an attorney to determine whether there is sufficient proof for the DA to be able to win his case. That will allow you to determine whether to force it to trial or to plea bargain it. If serious about hiring counsel, within these limits, feel free to contact me.

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Answered on 6/07/10, 1:23 pm


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