Legal Question in DUI Law in California

I am a California attorney who got a misdemeanor on Saturday for having an open container of alcohol on the beach (a cup of beer in a state park beach) -- California Code of Regulations, Title 14, 4326(a) "Posted Order No Alcohol, comments: drinking beer from red cup). I plant to hire a lawyer to represent me at the hearing, but I wondered if I will have to report this to the State Bar of California if I can't get it dismissed or turned into an infraction (the citing officer had the discretion to circle infraction or misdemeanor). My hope is that since it is not a moral turpitude misdemeanor that there is no problem. I will call the Bar on Monday, but I wondered if anyone else knows the outcome on this.


Asked on 7/26/09, 11:07 pm

1 Answer from Attorneys
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

Hold your horses, counsel. The Bar is unlikely to care even if you get convicted, and there's nothing in the State Bar Act that says you have to self-report misdemeanor arrests or citations. Even misdemeanor convictions need not be reported unless a "necessary" element of the offense is moral turpitude, which this isn't -- open container convictions are pretty small beer, as it were. (Disclaimer, I don't specialize in nor have I ever handled bar discipline cases.) See B&P ? 6068(o)(4) and (5).

Under the recent Supreme Court case of Melendez-Diaz v. Massachusetts, No. 07-591 (6/25/09), the prosecution is required to bring its toxicologist to court as a live witness to prove the stuff in your red cup was an alcoholic beverage. Maybe they won't want to do that. Maybe you will be eligible for a PC 1000 diversion (probably will be).

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Answered on 7/26/09, 11:31 pm


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