Minor in Possession of Alcohol

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Minor in Possession of Alcohol

Orange County Juvenile Defense Lawyer

Violation of Business and Professions Code 25662(a)

If you have received a citation for “Minor in Possession of Alcohol” you need to approach your defense very carefully. Our law firm has helped countless number of young people every year to such charges dismissed. If a charge of “Minor in Possession of Alcohol” per the Business and Professions Code 25662(a) – can have long lasting personal impact.

If you go into court and plead guilty to this charge without the aid of an experienced criminal attorney, you will have an alcohol related offense on your permanent record. It’ll stay there as a misdemeanor charge for the rest of your life. You will also lose your driver’s license for 1 year (California Vehicle Code, Section 13202.5) and be forced to pay fines and end up with other consequences that you’d probably want to avoid.

When this charge is dismissed, you can lawfully say you have “NO Criminal Conviction” when applying for school or work.

What does “Minor in Possession of Alcohol” mean legally?

This charge is an infraction of the Business and Professions code, specifically known as “25662(a)”. If you receive a citation from police, it means that you (as a citizen under the age of 18) are suspected of having control of an alcoholic beverage. The key element to the prosecution, which must be proven beyond a reasonable doubt, is that not only did you have possession, but that you had ownership and full knowledge that a container had a beverage that contained alcohol.

What is the legal definition of an alcoholic Beverage?

An alcoholic beverage is defined in Business and Professions code section 23004 as any  beverage that contains 1/2 of 1 percent or more of alcohol by volume. That means any beverage that says on the label “Contains Alcohol 0.5% by Volume” qualifies as an “alcoholic beverage”.

You would think that a simple definition of “possession” would apply, but the fact is where law is concerned, there are two ways to look possession of a beverage container alcohol: “actual possession” and “constructive possession”.

Actual Possession

Actual possession describes a situation when the alcohol is actually in your hand and you are holding it; example: you are physically touching a cup that contains alcohol.

Constructive Possession

Constructive possession describes a situation where you may not be physically holding the beverage, but that it is readily accessible by you.

But it is this variable definition of “possession” can cause some problems. For instance, where does constructive possession begin and end? Can a person who, although not in actual possession, be assumed in control of a beverage simply because they may have access to one? Is it reasonable to assume that a minor might have control over a beverage through other people who are in actual possession? Can two or more persons be in possession of the same alcoholic beverage?

Constructive possession can also refer to items inside of a vehicle. It is reasonable to assume that the driver of a vehicle has constructive possession of all items inside their car. So if a minor is driving and a passenger has possession of alcohol (or any other illegal substance), then it is assumed the driver has constructive possession.

A very important point to remember is that law enforcement isn’t asked to decide who is in possession. Police have all the reason they need to cite you for possession if and when circumstances require greater scrutiny. Here are some examples of constructive possession:

  1. You are at a table with several people who are drinking beer from a pitcher.
  2. You are holding a cup that is now empty but once had beer in it.
  3. You are holding someone’s beer for them while they go to the restroom.
  4. You use an empty beer can to spit into.
  5. You are carrying a grocery bag for a friend that contains alcoholic beverages.
  6. You are driving a car and there is beer on the back seat.

But don’t give up. Not yet.

To prove a violation, the prosecution must demonstrate to the court that…

  1. The minor unlawfully possessed an alcoholic beverage in a public place
  2. at the time the minor was under the age of 21.

One quick defense is remembering that at the time of the citation, an officer will probably keep the container, but pour out the beverage. Let’s say the beverage is beer and the container is a Styrofoam cup. Your defense attorney should file a discovery motion to have the cup analyzed for alcohol. If the prosecutor claims that the officer knows what beer is, what it looks like and what it smells like, the defense should ask whether the officer can tell the difference between alcoholic beverage and a non-alcoholic beverage. The same goes for any mixed drink. If all goes well, the court will dismiss the case or make a really good offer (alternative to actual charge).

There are other circumstances that could help mitigate the charge:

  • You were in the presence of someone 21 or older and had instructions to deliver the beverage.
  • You had no knowledge that the beverage was alcoholic (because you’ve never seen one before).
  • You had no idea that alcoholic beverages were present (because no one thought to tell you).

Even if you are found guilty of the crime, our firm will seek a way to ultimately dismiss your case by making a rational explanation that you realize you made a mistake; you are young and you won’t do it again. We can also argue that you will benefit from one of several diversions that the court may allow:

  1. AA meetings.
  2. An alcohol band on your leg.
  3. An essay on the harmful effects of alcohol.

The point is, when it comes to your freedom, there are always answers and tactics. You need a skilled criminal defense attorney who will stay by your side and weigh all the options.

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