Updated: Wednesday, 17 Dec 2008, 3:16 PM EST
Published : Tuesday, 16 Dec 2008, 4:10 PM EST
KALAMAZOO, Mich. (WOOD) - Bert Quinn drove two-and-a-half hours to be with his 20-year-old son during his court appearance for being a minor in possession of alcohol. The son, a Grand Valley State University student, was in Ottawa County's 58th District Court with other college students facing a similar charge.
"He's going to plead guilty, take responsibility for his actions," said the elder Quinn. "He'll probably ask for some consideration from the court for a diversion program."
The younger Quinn stood in front of Judge Kenneth Post, who doesn't offer a diversion program for first time offenders.
Recent changes in Michigan law try to give underage drinkers a break for a first offense. First offenders can enter a diversion program, typically counseling and a promise to stay clean, in exchange for wiping the criminal offense off their record.
The program is widely used in other college towns. In East Lansing, home of Michigan State University, 931 offenders did the diversion program this year. At Central Michigan University in Mt. Pleasant, 327 did the program in 2007, and another 435 at Western Michigan University in Kalamazoo.
Kalamazoo Chief District Judge Richard Santoni likes the diversion program. He said it addresses a bad choice in positive way
"We're able to provide kids with a good amount of alcohol education. It's part of the program," he told 24 Hour News 8. "If I were to simply give the kid a fine and say don't do this anymore, what have I taught them?"
But in 58th District Court in Ottawa County, where Grand Valley is based, 24 Hour News 8 found no evidence of a diversion program.
We tried under the Freedom of Information Act, even to see how many underage drinking prosecutions there have been, and were told it would take too many resources to compile for a media request.
Judge Post explained his position to 24 Hour News 8 on the phone. He said he had tried using a diversion program created by the Ottawa County prosecutor for a few months, but decided it was not working. Too many kids, he said, were re-offending. It's evidence that if kids think they can get away with something, they will keep doing it and perhaps, Post said, graduate to even worse behavior.
Judge Post didn't want to talk on camera. But he made his opinion known in court when Bert Quinn's son asked about the diversion program.
"You may qualify for it if you have no other offenses. I'm not applying it and I will not give you the diversion program. Any other questions?"
"No, sir," the college student replied.
The message was heard loud and clear. Of the 85 defendants that morning, 73 pleaded guilty. They paid their $200 fine and left. There is no court order for counseling -- and there is another consequence
"This is a criminal conviction," Judge Santoni said. "It's a criminal misdemeanor like an assault and battery."
A criminal conviction could raise a red flag when applying for a professional license, or in a tight job market where an applicant may have to admit on an application to a criminal record.
Pleading guilty does not mean the offense goes away. "That means you have a criminal record," Judge Santoni said. "You are a criminal for all intents and purposes."
Michigan law allows kids to get one criminal offense expunged from their record, but it requires the approval of the district judge, and according to a local prosecutor, Judge Post does not offer such deals for underage drinking.
Even if these students could get their guilty pleas expunged, in Michigan the plea will always be on the driving record, and that's something that could affect insurance rates.
Defense attorney Bill McNeil says his "main concern first is that the kids don't understand this is serious." He plans to appeal the next time Judge Post denies diversion for one of his clients. It's been a battle, he admitted, because of the way the diversion statute is written.
"Because (the statute) says 'may,' that does give them discretion," he said, "but exercise that discretion on a case-by-case basis."
Since the judge has been refusing diversion, the prosecutors say more and more defendants are pleading not guilty and demanding jury trials, but Judge Post doesn't make it easy.
Erica Bianchini, a defendant in front of Judge Post, said, "It's terrible, it's traumatizing. I feel I don't have any rights."
Pleading not guilty requires at least three more court appearances, a $200 cash bond, an instant drug test and restrictions on travel.
Dan Beal believes the evidence in his case is slim and trying for an acquittal is worth it. "Basically I'd like to go into the real world with a clean slate without having to worry, 'Oh what's this? An MIP on your record? We're not going to hire you.' What can I say about that?"
Drinking under age 21 is against the law and binge drinking on college campuses has become a problem over the years. Counseling for offenders can be a costly headache for courts, but one worth it in the eyes of some.
"We can't afford not to. We have to do this," Judge Santoni said. "This is part of changing behavior."