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A police officer encounters a minor lawfully, smells alcohol on the minor's breath (let me clarifiy, the minor is NOT operating a motor vehicle). Is this alone sufficient to cite the minor for ABC 106.04 Minor in Consumption? The minor has no alcohol in his possession.

I have always interpreted MIC to apply only to an on-view offense: the PO actually sees the minor consume the alcohol. Is this correct?
 
Posts: 53 | Location: Arlington TX USA | Registered: October 29, 2004Reply With QuoteReport This Post
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I see no reason the case cannot be proven circumstantially, just like any other. This is not to say that the investigation may not be substandard, or your determination you can't prove a case is incorrect, but I simply see no legal bar to trying. While possession requires actual care custody or control, consumption is not legally defined and the common sense application of that term should control. Consumption cases may raise the issue of venue; where the beverage was consumed must be proven to be in the court's jurisdiction. I do believe that absorbtion and elimination would logically be part of the consumption process. An item is not really consumed until it is....well, consumed. That is absorbed and eliminated and thereby consumed.

As always just my opinion. Very little case law exists since this is a pretty new offense and a class C.
 
Posts: 293 | Location: Austin, TX, US | Registered: September 12, 2002Reply With QuoteReport This Post
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Interesting, I never thought of the venue issue.

I just got off of the phone with the city prosecutor and he is OK with it.

I hope the arresting officer would document any
additional evidence (e.g. statement from suspect, witnesses, or both, empty alcohol containers present, signs of intoxication), but if past experience is any indicator, the officer will simply smell the alcohol, write ticket, and be done with it.

[This message was edited by jrotert on 09-07-05 at .]
 
Posts: 53 | Location: Arlington TX USA | Registered: October 29, 2004Reply With QuoteReport This Post
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Are you really going after this kid. What a waste of county resources.
 
Posts: 1 | Registered: August 18, 2005Reply With QuoteReport This Post
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Our officers have just started doing this here on campus (I have no idea who or what planted this seed in their heads), and I agree that it is a waste of resources (in our case, municipal).

I was hoping someone on this board would respond with "We just prosecuted a case like that and the court held that it only applied to on-view offenses," "That's not what the intent of the statute is," or something similar.

Now I'm afraid that officers will take the city prosecutor's statement that he's "OK with it" and use it as carte blanche to cite any minor who even smells the least bit of an alcoholic beverage.
 
Posts: 53 | Location: Arlington TX USA | Registered: October 29, 2004Reply With QuoteReport This Post
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I wouldn't bother responding to any poster who doesn't have profile information yet has such a strong opinion.

This website is often times a magnet for those who feel they have been or are being wrongfully prosecuted, not that this anonymous poster has ever been prosecuted.

Besides, gtruman has not learned the art of punctuation.
 
Posts: 2577 | Location: The Great State of Texas | Registered: December 26, 2001Reply With QuoteReport This Post
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A minor may legally consume alcohol. If a parent is present, and he/she consumes when provided by a parent, under the direction and supervision of a parent. I think that the officers may be creating a waste of resources, as the anonymous poster states, if in fact they are ticketing without questioning what really happened. Additionally, some sauces using alcohol may not be properly cooked down at restaurants, thus leaving an alcoholic smell (Marsala comes to mind as popular, and sometimes undercooked for flavor).

I'd make a policy that the officer must provide an offense report that details any relevant statements the minor made in regards to his breath, or you won't prosecute. Maybe if they had to work a little harder, they'd be hard-pressed to make more work for you.
 
Posts: 319 | Location: Midland, TX | Registered: January 09, 2002Reply With QuoteReport This Post
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Greg, you are so observant...I also noticed that poster's creative use of the period in an interrogative-type sentence. But, as I began to think that the writer was merely uninformed or perhaps from the school district in my hometown, he or she in a deftly manuevered tactic, began a new phrase with what is normally an interrogative, i.e. the word -what- but the use of -what- turned out to form, not a question, but of all things a declaration, thus shedding any appearance of misuse of punctuation and suggesting that this person might have actually bred new grammatical theory into the written word. Amazing. Poetic even.
 
Posts: 751 | Location: Huntsville, Tx | Registered: January 31, 2001Reply With QuoteReport This Post
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I think it is just cruel that "phonics" starts with P H instead of F. That is just not phunny.
 
Posts: 323 | Location: Texas, USA | Registered: November 16, 2004Reply With QuoteReport This Post
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