Minor in Possession of Alcohol

This Article Explains The Law For Those Under The Age Of 18 Possessing Alcohol

With only a few exceptions, minors in California are not permitted to possess alcohol in a public place. The offense of possessing alcohol while under the age of 21 is found under Business and Professions (B&P) Code 25662, which is also referred to as minor in possession.

How Does The Prosecutor Prove The Crime

To be convicted, the prosecution need only prove the following elements:

  • You were under the age of 211
  • You were in possession of alcohol2
  • You possessed the alcohol3 in a location that was open to the public or on any roadway or highway.
Possession

The law allows you to possess something directly or indirectly. Direct possession is where you are in actual physical possession such as holding a can of beer or cup with alcohol in it. Indirect, or constructive possession, occurs where the beer can or cup of alcohol is situated next to you so even though you are not holding it, it is under your control. Joint possession is possible as well where two or more persons are in control of the alcohol and are sharing it.

Alcohol

Alcohol comes in many forms—beer, wine, liqueurs or spirits. Any liquid that contains a minimum of 0.5 of 1% of alcohol is an alcoholic beverage and may not be possessed by a minor in a public place.

Public Place

Any area or premises open to the general public is a public place for purposes of this law. This includes bars, restaurants, clubs, parks, streets or highways. A private home, of course, does not apply.

Legal Defenses

Lack Of Possession

Police must find you in possession of alcohol by observing you with it in hand or lying next to you. If you are merely present while alcohol is possessed by others, including other minors, it does not necessarily mean that you were in possession.

Unlawful Search & Seizure

A search of your person, car, business or property can only be performed pursuant to a valid search warrant. There are numerous exceptions to the search warrant requirement, most notably being that the contraband was in plain view. For instance, if you are drinking in a public park or on the street, police can generally see that you are consuming alcohol or assume you are by seeing a beer can in your hand or next to you on the ground.

Police cannot randomly stop you on the street and search you or your car absent probable cause to believe you are breaking the law. You may not be detained or arrested without probable cause as well. Probable cause is defined as reasonable or sufficient grounds in fact and circumstance to form a belief that a crime has been committed or that certain property is connected with a crime.

Exceptions To Minor In Possession
  • You were delivering the alcohol under the direction of your parent or as an employee for your job4
  • You called 911 to report a medical emergency because of alcohol consumption; you were the first one to call 911 and you remained with police and medical personnel and cooperated with them

Penalties

A conviction for being a minor in possession under BP 256625 is a misdemeanor, though as a minor you are not subject to county jail time. Should you be convicted, you face:

PenaltiesMisdemeanor
Fine  $250
Community Service24 to 32 hours served at an alcohol or drug treatment program or with the county coroner’s office
Additional ProgramsParticipation in a youth drunk driving program
Drivers LicenseOne-year suspension of your driver’s license or one-year delay if you are not eligible yet for a license6

You can request that the license suspension be shortened to one-year if you face multiple yearlong suspensions so long as you commit no other violations for 12-months. You may be able to get a restricted license if you can demonstrate “critical need” to drive for school, work or for medical appointments to transport an ill relative7. Work must be necessary to help support your family.

Penalties2nd Offense
Fine  $500
Community Service36 to 48 hours served at an alcohol or drug treatment program or with the county coroner’s office
Additional ProgramsParticipation in a youth drunk driving program
Drivers LicenseAdditional One-year suspension of your driver’s license or one-year delay if you are not eligible yet for a license
Juvenile Court

Should you be under the age of 18 when charged with being a minor in possession, your case will be handled by the juvenile court where a judge, and not a jury, can decide your guilt or innocence. The proceeding is called a juvenile adjudication hearing. If the judge finds sufficient evidence, then the petition is sustained and you are considered guilty of the misdemeanor offense.

Frequently Asked Questions

Can I be charged as a minor if I am carrying beer home from the grocery store?

If your parent or other adult is not in the car with you, then you can be charged. You have a defense if you can show that you were transporting the beer at the direction of your employer as part of your work (delivery boy). If an adult is in the car but that person is carrying an open beer can, you can also be charged with an open container violation.

Can I serve alcohol in a bar or restaurant if I am at least 18?

Yes, California law permits servers who are 18 and over to serve alcohol.

Can a police officer who comes into a private home arrest me for drinking?

First, an officer cannot enter a private home unless the officer has a search warrant or consent is given by the owner or occupant or there are particular circumstances where a crime is being committed. If you are drinking in the private home, you are not on public property. If you happen to wander outside and onto the sidewalk with a beer in your hand or are intoxicated to the point where you are risking your health or are not capable of taking care of yourself, then you can be subject to arrest.

Also, an adult can be charged with certain offenses if alcohol consumption by minors is allowed on the property and a minor who had consumed alcohol there leaves and causes an accident.

Commonly Charged Additional Crimes

Drunk In Public

Minors could be charged with being drunk in public or with this offense along with being a minor in possession. To be convicted of being drunk in public, the prosecutor must prove the following:

  • You were intoxicated to the point where you presented a danger to yourself or others or you were incapable of caring for yourself
  • And/or you interfered with, obstructed or prevented others from using the sidewalk, street, or other public way

This is a misdemeanor with a sentence of up to 6 months in jail and a fine of up to $1000.

Possession of Alcohol In A Motor Vehicle

Vehicle Code 23224 makes it unlawful for a person under the age of 21 to be a passenger or a driver in a motor vehicle with alcoholic beverages in it unless:

  • It is being done so under the direction of a parent or employer
  • The minor is accompanied by a specified adult or parent
  • The minor is accompanied by a parent or guardian and the alcohol is being transported pursuant to the adult’s work
  • The alcohol is full, sealed and unopened

This is also a misdemeanor with penalties of up to one year in county jail and a fine of up to $1000. You can also have your car impounded for up to 30-days and face a one-year driver’s license suspension or delay of one year after becoming eligible for a license.

Minors Driving With A BAC Of .01%

Under Vehicle Code 23136 – minors may not drive with a BAC of 0.01%.

This is a zero tolerance violation. Any substance containing alcohol can result in your blood alcohol (BAC) having a measurable degree of alcohol. A violation will result in a one-year suspension of your driver’s license. However, It is not considered a criminal violation.

Driving With A BAC Of .08% Or Higher

VC 23152—driving with a BAC of 0.08% or higher or driving while impaired

This is the standard or “adult” DUI offense. A first offense results in a one-year suspension if you are a minor, a fine of $390 up to $1000, a 3 to 6-month DUI education program and probation of 3 to 5 years. You also face up to 6 months in county jail.

Unlike adults, minors are required to submit to field sobriety tests and the preliminary alcohol screening tests or PAS, which is a portable alcohol breath device that officers carry in their vehicles. If the PAS reveals the presence of alcohol, you can be arrested. Should you refuse even the PAS test, which adults may legally do, you will lose your license for one-year and you are ineligible for a restricted license.

As with any adult who is charged with a DUI, you can also request within 10 days of your arrest an Administrative Per Se hearing with the DMV to contest your license suspension.

Next Steps

If you have been arrested and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending case contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Footnotes

  1. Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun. []
  2. An alcoholic beverage is a liquid or solid material intended to be consumed that contains one-half of 1 percent or more of alcohol by volume. [An alcoholic beverage includes <insert type[s] of beverage[s] from Bus. & Prof. Code, § 23004, e.g., wine, beer>.] []
  3. A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person. []
  4. The defendant did not unlawfully possess an alcoholic beverage if (he/she) was following, in a timely manner, the reasonable instructions of (his/her) (parent/legal guardian/responsible adult relative/employer/<insert name or description of person designated by parent orlegal guardian>) to deliver [or dispose of] the alcoholic beverage. The People have the burden of proving beyond a reasonable doubt that the defendant was not following such instructions. If the People have not met this burden, you must find the defendant not guilty of this crime.](See People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045 [274 Cal.Rptr. 17]; People v. Mower (2002) 28 Cal.4th 457, 478–481 [122 Cal.Rptr.2d 326, 49 P.3d 1067 []
  5. Business & Professions Code 25662 – (a) Except as provided in Section 25667 or 25668, any person under 21 years of age who has any alcoholic beverage in his or her possession on any street or highway or in any public place or in any place open to the public is guilty of a misdemeanor and shall be punished by a fine of two hundred fifty dollars ($250) or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed or is not attending school. A second or subsequent violation shall be punishable as a misdemeanor and the person shall be fined not more than five hundred dollars ($500), or required to perform not less than 36 hours or more than 48 hours of community service during hours when the person is not employed or is not attending school, or a combination of fine and community service as the court deems just. It is the intent of the Legislature that the community service requirements prescribed in this section require service at an alcohol or drug treatment program or facility or at a county coroner’s office, if available, in the area where the violation occurred or where the person resides. This section does not apply to possession by a person under 21 years of age making a delivery of an alcoholic beverage in pursuance of the order of his or her parent, responsible adult relative, or any other adult designated by the parent or legal guardian, or in pursuance of his or her employment. That person shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage. []
  6. Vehicle Code 13202.5(a) – For each conviction of a person for an offense specified in subdivision (d), committed while the person was under the age of 21 years, but 13 years of age or older, the court shall suspend the person’s driving privilege for one year. If the person convicted does not yet have the privilege to drive, the court shall order the department to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive. However, if there is no further conviction for an offense specified in subdivision (d) in a 12-month period after the conviction, the court, upon petition of the person affected, may modify the order imposing the delay of the privilege. []
  7. Vehicle Code 13202.5(c)(1) – After a court has issued an order suspending or delaying driving privileges pursuant to subdivision (a), the court, upon petition of the person affected, may review the order and may impose restrictions on the person’s privilege to drive based upon a showing of a critical need to drive. []

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