Halloween is a time for costumes, fun, parties, and sometimes bit of mischief. There are certain things you can do this Halloween to keep yourself and those you care about out of legal trouble. If you find yourself having a run in with the police, keep reading to find out what you should do.
The most important thing to remember when having any interactions with the police is to be respectful. This does not mean incriminate yourself; it means say “yes, officer” and “no, officer.” The minute you start giving the officer a hard time, you are almost guaranteed to be arrested or charged with a crime. Especially on Halloween, the police will be very busy so if they see you out and about or at a party, and tell you to move along, just do it. Arguing will get you nothing except for your hands in a shiny pair of handcuffs.
Minor in Possession of Alcohol
Halloween and drinking alcohol go hand in hand. Whether you are at a house party, out on the town, or visiting a haunted house, drinking seems to be a right of passage. As your friends may say, drinking makes Halloween more fun but it can also give you a criminal record if you are under age 21. If you are in possession of alcohol, and are under age 21, you can be charged with being a Minor in Possession of Alcohol. It is a crime punishable by $150 fine and a 90-day driver’s license suspension. Most people focus on the license suspension as being the worst part; however, even if you are only ordered to pay a $150 fine, you now have a conviction on your record.
Keep in mind that even if the police do not see you physically holding a cup or alcoholic beverage, you can still be face charges if you are at a party and alcohol is close to you. What most frequently happens in these kinds of cases is that the police will take down your information and then you will receive a Notice for a Clerk Magistrate’s Hearing from the court in the mail. This hearing is a step before criminal charges and hiring an attorney to represent you at the hearing can have a dramatic effect on how your case turns out. Often times, if you have legal counsel, we can try to work out an agreement where you will not face criminal charges if you stay out of trouble and perform community service. Hiring an experienced attorney will avoid a conviction and most likely a criminal record. Do not try and handle a case like this on your own. A conviction will follow you for the rest of your life!
Operating Under the Influence of Alcohol
Now that you have gone to the haunted house or to the Halloween party, you will have to get back home. If you have had anything alcoholic to drink- do not chance it, Uber home or have a sober friend drive you. The police will be out in full force on Halloween night and there will be sobriety checkpoints. By the time you see the sobriety checkpoint, it will be too late to take a different route and you will be funneled through it.
In Massachusetts, you can be charged with operating under the influence of alcohol if you have Blood Alcohol of .08 or greater or your ability to operate a motor vehicle is diminished by alcohol.
Many people mistakenly believe that if they blow .06 or .07, the police will release them from custody. This is false! You will still be arrested and still charged for Operating Under the Influence of Alcohol. The Commonwealth can still try to prove you were impaired while operating your vehicle even though you blew under .08.
If you are stopped by the police, one of the first questions you will be asked is whether you have been drinking and how many drinks you have had. Answering yes will result in you being arrested. Even if you tell the police officer that you have only had one drink, you are going to be arrested.
If the officer suspects you have been drinking, he will ask you to step out of the vehicle and ask if you would perform field sobriety tests. Respectfully decline! All you have to do is say no. The officer cannot force you take them. Your failure of the tests, which is subjective to the officer’s opinion, will only reinforce his reason to arrest you.
Once the officer arrests you, he will Mirandize you. You have the right to remain silent and to an attorney. Invoke your rights! Do not make any statements. Nothing you say will help you avoid being arrested. At the police station, you will be asked routine booking questions which you will have to answer such as name, date of birth, and address. Do not answers questions about how much alcohol you had that night.
At the police station, you will be given the opportunity to take a breathalyzer test. Refuse the test! If you take the breathalyzer test and blow over .08, your license will be suspended for 30 days. If you refuse the breathalyzer test, your license will be suspended for a longer period of time depending on whether it is your first, second, third, fourth, or fifth refusal. If it is your first refusal and you are over 21, your license will be suspended for 180 days. If you are under 21, it will be suspended for 3 years.
Your ability to successfully defend against an OUI charge at trial is dramatically increased if you do not take the breathalyzer or field sobriety tests. Without field sobriety tests and breathalyzer results, all the police officer could testify to would be that you had red, glassy eyes and he could smell an odor of alcohol on you. The police write that in every report and testify to it at every trial. If you are found not guilty, we will file a motion requesting the judge return your driver’s license and if the motion is allowed, and it usually is, we can represent you at the RMV to request your license be reinstated even though it was suspended because of the breath test refusal. We have represented many clients who were found not guilty and then had their driver’s license reinstated by the RMV even though their license was still supposed to be suspended because they refused the breathalyzer test.
Rape or Consensual Sex
On Halloween people tend to lose their inhibitions whether it is from drinking or being in costume and pretending to be someone else. People just naturally tend to do things they normally wouldn’t do when it comes to Halloween. That is why it is so important to remember that a person is deemed incapable of consenting to sex if they are too intoxicated, asleep, mentally disabled, or otherwise unable to give consent. Importantly, even if the person accused of Rape was intoxicated, they cannot use their own intoxication as a defense or to mitigate what happened.
If you find yourself in a situation where the other person is alleging Rape, do not talk to the police. Never make any statement about what happened until you talk to an attorney. If convicted of Rape, you face up to twenty years in state prison, will be required to register as a sex offender, and to wear a GPS bracelet while on probation. Nothing you say to the police will change their mind about whether you will face criminal charges. The best thing to do is hire an attorney immediately and try to get in front of the accusations.
Contact Us
At Sweeney & Associates, we understand people make mistakes and that Halloween is a time to have fun. If you find yourself in an incriminating situation or think you may face criminal charges, contact us for a free consultation at (617) 328-6900 or mail@rsweeneylaw.com.