My daughter is going to be 21 in a couple of weeks.She was not driving.She was with 2 friends they are 21. They were stopped because the officer said they were speeding in Orcutt and were stopped by the base. which is about 15miles away from the stop point.My daughter was asleep in passenger seat. the officer saw a bag that had open bottle of liquor which belong to the driver.None had been drinking.the officer waived the speeding ticket and gave my daughter a ticket (thats like drunk in public) because she is not of age and the other girls did not get anything. Is this right? How will it affect her record?
It is not right. I'm trying to figure out the crime your daughter committed. If no one was drinking there is no drunk in public crime. Since no one was given a ticket for open container its to late now to issue one. You want to consult with an attorney. You may be able to get an attorney to get the case dismissed. a PC647 is a misdemeanor so it's not to be taken lightly.
Possession of Marijuana or Open Container While Driving
23222. (a) No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, 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.
(b) Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). Notwithstanding any other provision of law, if the person has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged, the previous convictions shall also be charged in the accusatory pleading and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, Sections 1000.1 and 1000.2 of the Penal Code are applicable to the person, and the court shall divert and refer the person for education, treatment, or rehabilitation, without a court hearing or determination or the concurrence of the district attorney, to an appropriate community program which will accept the person. If the person is so diverted and referred, the person is not subject to the fine specified in this subdivision. In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, the person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his or her written promise to appear in court, as provided in Section 40500, and shall not be subjected to booking.
Penal Code 647(f)
Every person who commits any of the following acts is guilty
of disorderly conduct, a misdemeanor:
(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.
It sounds like your daughter was cited for Business & Professions Code 25662, minor in possession of alcohol (commonly called MIP). Multiple people can be in possession of the same alcohol, but your daughter was under 21, so it's illegal for her.
An MIP can be charged as an infraction or a misdemeanor. Either way, the punishment includes community service or a fine, but no jail time. However, a conviction for MIP will result in a one-year drivers license suspension.
Your daughter may be able to beat this case with an attorney, by showing that she did not possess the alcohol or was unaware of its presence.
Of course, like Mr. Tiemann, I'm guessing about the charges. (I practice law in a college town, so I probably see more MIP cases than he does.) You need to consult with an attorney who can get all the facts of the case and give you informed information.
