Underage Drinker Released After Winning Rock, Paper, Scissors

Posted in General on January 12, 2015

According to a Huffington Post article, a woman at a Texas music festival was not issued an Underage Drinking citation after she beat the officers at a game of Rock, Paper, Scissors. The event was apparently recorded and went viral. The officers are now in trouble and have been banned from working the same concert in the future.

Criminal Charges Are Discretionary With Police Officer

A quick look at this case can understandably cause people to question the professionalism of the officers involved. Should trained law enforcement officers base the decision of whether to charge a person with a criminal offense upon the person’s ability to win a game of chance, be it Rock, Paper, Scissors, thumb wrestling, or maybe Yahtzee? I suspect that everyone would readily agree that the answer is no. However, I cannot imagine that the officers legitimately based their decision on the outcome of the game. Maybe the officers simply wanted to interact with the suspect more, to gauge her level of intoxication by playing such a game, and then determine whether or not an underage drinking citation was warranted. Police officers are able to exercise discretion in the field and  issue citations when they feel that doing so is appropriate. Officers are permitted to issues warnings and send a person on his or her way. How many amongst us has not been pulled over for a traffic violation, a violation of which we are probably guilty, and hope that the officer only issues a warning.

As a State College defense attorney, many of my cases are alcohol-related as Penn State students sometimes have a bit too much to drink and make some bad decisions. Practically speaking, the local police could issue underage drinking or public drunkenness citations to over half of the people that are walking the streets of downtown State College in the late evening to wee hours of the morning on a routine Friday or Saturday. The officers often exercise discretion and only stop those individuals that draw attention to themselves, such as those that run into the street and are almost struck by a car, those that are urinating or vomiting in public, those that have passed out in the bathroom of a local food establishment, or those that simply cannot walk themselves home. In those situations, the police are often forced to act, and citations or criminal charges are often filed with the district judges.

First Time Offender Programs

Many first time offenders in Pennsylvania are able to participate in some sort of diversionary or pre-adjudicative program to avoid a conviction, allow for the expungement of the charge, and thereby avoid a long term criminal record. For many relatively minor misdemeanor charges, such as marijuana possession, driving under the influence, furnishing alcohol to minors, possession of a fake ID, and possession of drug paraphernalia, a person may be able to participate in the Accelerated Rehabilitative Disposition (ARD) or Probation Without Verdict (PWOV) program. Such Pennsylvania pretrial diversionary programs often require the participant to submit to a period of supervision by the probation department, pay costs and fees, undergo a counseling program, and complete community service. Summary charges, such as underage drinking, public drunkenness, criminal mischief, retail theft, and disorderly conduct, are often resolved through a similar, less slightly formal agreement. With summary offenses, the probation department is often not involved, so there is no supervision component. However, participants in such programs often are required to perform hours of community service, pay costs and fees, and possibly complete alcohol education or theft prevention programs.

Such programs often allow the participant to plead not guilty to the charge, but the person accepts a punishment from the judge or court. Upon completion of the requirements and compliance with the conditions of the program, the charges can be dismissed. Many people do not realize that dismissed charges remain on a person’s record. In order to remove the charges, they must be expunged by filing an expungement petition with the appropriate court. Eligibility for ARD programs vary and depend upon the precise facts of the case, the judge, the police department and arresting officer, and the prior history of the person. Anyone charged with a criminal offense should contact a local defense lawyer with experience in the area in which the charge was filed and have that attorney review the case.