Under the Influence of the Justice System – A Father’s Story

By an oos Member  

This post originally appeared as oos Weekly E-Newsletter #519 on December 23, 2019 

This is a story about my twenty-year-old son. To some readers this may be an article that smacks of stupidity and privilege. It may be that both are true but the real point is how hopelessly out of whack law enforcement and related penalties are with the real world.

On a Saturday night John exited a fraternity house at a small, rural southern college and got in his car to drive a short distance to his dorm. This proved to be an epically stupid decision. Unbeknownst to him the local police had staked out the fraternity for just such a situation. Before he even left his parking spot he was approached and asked if he had been drinking. He had.

At this point my son was presented with a choice. On the one hand, the college has an honor code and lying is cause for immediate expulsion. The police know this and report all incidents to the college. On the other, the state has a zero-tolerance policy for underage drinking and driving. Hobson’s Choice: Answer yes and get a DUI, answer no and risk expulsion from the school without recourse. Taught not to lie, my son answered yes, he’d been drinking.

The probable cause for approaching him? He was a college student leaving a fraternity house at night, so he must have been drinking.

A subsequent search of the car turned up some beers and a bag that appeared to have trace amounts of marijuana. He was charged with a DUI, underage possession of alcohol, misdemeanor possession of a controlled substance and “weapons” possession. In the rural south travelling with your hunting bow in your car isn’t generally considered a crime but in this case it was.

Did I fail to concede that my son had made some seriously poor decisions?

I can afford a lawyer, so I hired one and we began to discuss whether there were any ways to reduce the charges. The Blood Alcohol Content (BAC) test came back over the 0.02 level for juveniles but the drug blood test was negative meaning he’d been drinking but if he’d ever smoked pot, it wasn’t in the past two weeks. The lab concluded the bag had contained marijuana but there wasn’t enough to weigh. There was literally nothing in the bag. The weight of the seized drugs was recorded a dash. The beers in the car were undeniable and the “weapons” charge remained a bit of an enigma.

At the assigned court date, my son caught a break. The arresting officer failed to show. She quit the police force before the trial, reportedly telling one of the kids at school that she didn’t sign up for busting them for drinking at frat parties. She left to take a position fighting “real” crime.

We thought we might be out of the woods completely. Dismissal of the underage possession of alcohol was straight forward but the district attorney was clear that she was going to need a conviction. With four charges, she refused to let him completely off the hook; she insisted on either the drug charge or the DUI. John had to cut a deal, so he chose to plead guilty to the one charge for which he was arguably most innocent, possession of a controlled substance.

The magistrate explained how “lucky” my son was not to be charged with a DUI. A DUI charge would have meant suspension of his license for a year, a year’s worth of probation, increased insurance expenses and, perhaps more importantly, once on your record, a DUI in that state can never be expunged. It sticks with you for life. If ever asked on a job application, loan document or other form if you’ve ever been convicted of a crime, you have to answer yes. The charge my son pled guilty to, misdemeanor drug possession, required a one-year probation and, after five years, can be expunged from his record.

The seized weapon, my son’s very expensive, left-hand compound hunting bow? That became the property of the police through civil forfeiture. The court document says, “weapon forfeited.” I can only assume somewhere in the rural south there is a left-handed sheriff’s deputy extremely pleased with his new bow. I hope he shoots himself.

There are so many things wrong with what happened to my son. The police profiled him to approach him—a clear violation of the Fourth Amendment of the Constitution. Nevertheless, he’d had a beer, made a bad decision and thus was guilty. The possession of a controlled substance charge was a joke—the lab could test the residue but there was nothing for the lab to measure. The seizure of the bow was classic ‘policing for profit’ abuse. The bow was in no way linked to a crime.

The school, whose honor code trumps the Constitution’s Fifth Amendment protection not to bear witness against oneself, called my son before the dean within two days of being charged. His one-year suspension was handed down another two days later.

It is a fact that underage drinking occurs across the United States. Research shows that as much as 80 percent of college students drink and 60 percent drink “regularly.” Rather than making our kids rationalize “criminal” behavior, our laws related to alcohol need to be changed to reflect reality.

Whether allowing just beer and wine for our young adults age 18 to 21 or, as Louisiana is considering, creating a ‘drinking certificate’ for 19 and 20-year-olds that pass an alcohol class, something needs to be done to stop the criminalization of alcohol consumption where no harm was done to oneself or others. Further, while I don’t condone drinking and driving, the penalties are now so far out of context with the deed─in John’s case not an inch driven on public roads─that they would be laughable if the consequences were not so serious.

Finally, just as an aside, take it from me, don’t try to go to Canada with the family if you have a misdemeanor drug possession conviction (or a DUI for that matter). Canadian border agents will deny you entry as “criminally inadmissible,” a Canadian term that applies for 10 years after the completion of your sentence. It is a humiliating experience to be stopped at the border and be told you’re an undesirable.

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