Minor in Possession is charged under Business and Professions Code 256621 which prohibits minors under the age of 21 from possessing alcohol in a public place. B&P 25662 is a misdemeanor, with potential consequences including a fine and/or community service, attending a youth drunk driver program, and a one year driver’s license suspension pursuant to Vehicle Code 13202.52 It should be noted that in the event of a driver’s license suspension, it is possible to get a critical needs license to allow you to drive for work, school, and medical purposes.
There are many defenses that can be used to defend against a Minor In Possession charge including:
1. Lack of actual possession. If for example you were hanging out in a circle with other people consuming alcohol, an officer may cite you even though you did not actually possess any alcohol. Just because you were standing near someone who was drinking alcohol, does not mean that you should be convicted of a Minor in Possession charge.
2. If you are under 21 years old, but you were delivering alcohol under the direction of a parent, a legal guardian, a responsible relative, or pursuant to your employment, then that can be a complete defense.
3. Illegal search and seizure that led to the officer discovering the alcohol.If for example the officer did not have a valid search warrant, or otherwise unlawfully detained or arrested you prior to discovering the alcohol, it is possible to get your case dismissed.
4. You were not in a public place. One of the elements that is necessary is that the possession of alcohol was in a public place, which includes an establishment that is open the public such as a bar. This does not include a private residence.
5. Emergency situation; called 911. Under Business and Professions Code 256673 you are immune from criminal prosecution under B&P 25662 if the following can be established: (1) Person charged called 911 to report need of medical assistance, (2) first person to make that call, (3) remained on scene until medical assistance arrived and cooperated with them and law enforcement.
*It should be noted that there is no immunity for any offense that involves activities made dangerous by alcohol, such as DUI.
It is important to have an Attorney experienced in handling these matters defend you in court, and if possible, to avoid a misdemeanor conviction, protect your driver’s license among other things.
Call 818-336-1384 to discuss your case directly with Philip Hache, Attorney At Law.
- 1. Minor Possessing Alcoholic Beverage
25662. (a) Except as provided in Section 25667, any person under the age of 21 years 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 the age of 21 years 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.
(b) Unless otherwise provided by law, where a peace officer has lawfully entered the premises, the peace officer may seize any alcoholic beverage in plain view that is in the possession of, or provided to, a person under the age of 21 years at social gatherings, when those gatherings are open to the public, 10 or more persons under the age of 21 years are participating, persons under the age of 21 years are consuming alcoholic beverages, and there is no supervision of the social gathering by a parent or guardian of one or more of the participants.
Where a peace officer has seized alcoholic beverages pursuant to this subdivision, the officer may destroy any alcoholic beverage contained in an opened container and in the possession of, or provided to, a person under the age of 21 years, and, with respect to alcoholic beverages in unopened containers, the officer shall impound those beverages for a period not to exceed seven working days pending a request for the release of those beverages by a person 21 years of age or older who is the lawful owner or resident of the property upon which the alcoholic beverages were seized. If no one requests release of the seized alcoholic beverages within that period, those beverages may be destroyed.
(c) The penalties imposed by this section do not preclude prosecution or the imposition of penalties under any other provision of law, including, but not limited to, Section 13202.5 of the Vehicle Code.
(Amended Sec. 2, Ch. 245, Stats. 2010. Effective January 1, 2011.) ↩
- 2. Controlled Substances or Alcohol-Related Offense
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. For each successive offense, the court shall suspend the person’s driving privilege for those possessing a license or delay the eligibility for those not in possession of a license at the time of their conviction for one additional year.
As used in this section, the term “conviction” includes the findings in juvenile proceedings specified in Section 13105.(b) Whenever the court suspends driving privileges pursuant to subdivision (a), the court in which the conviction is had shall require all driver’s licenses held by the person to be surrendered to the court. The court shall within 10 days following the conviction transmit a certified abstract of the conviction, together with any driver’s licenses surrendered, to the department.
(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.
(2) As used in this section, “critical need to drive” means the circumstances that are required to be shown for the issuance of a junior permit pursuant to Section 12513.
(3) The restriction shall remain in effect for the balance of the period of suspension or restriction in this section. The court shall notify the department of any modification within 10 days of the order of modification.
(d) This section applies to violations involving controlled substances or alcohol contained in the following provisions:
(1) Article 7 (commencing with Section 4110) of Chapter 9 of Division 2 of, and Sections 25658, 25658.5, 25661, and 25662 of, the Business and Professions Code.
(2) Division 10 (commencing with Section 11000) of the Health and Safety Code.
(3) Section 191.5, subdivision (a) or (b) of Section 192.5, and subdivision (f) of Section 647 of the Penal Code.
(4) Section 23103 when subject to Section 23103.5, Section 23140, and Article 2 (commencing with Section 23152) of Chapter 12 of Division 11 of this code.
(e) Suspension, restriction, or delay of driving privileges pursuant to this section shall be in addition to any penalty imposed upon conviction of a violation specified in subdivision (d).
Amended Sec. 17, Ch. 747, Stats. 2007. Effective January 1, 2008. ↩
- 3. 25667. (a) Any person under the age of 21 years shall be immune from criminal prosecution under subdivision (a) of Section 25662 and subdivision (b) of Section 25658, where the person establishes all of the following:
(1) The underage person called 911 and reported that either himself or herself or another person was in need of medical assistance due to alcohol consumption.
(2) The underage person was the first person to make the 911 report.
(3) The underage person, who reported that another person was in need of medical assistance, remained on the scene with the other person until that medical assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.
(b) This section shall not provide immunity from criminal prosecution for any offense that involves activities made dangerous by the consumption of alcoholic beverages, including, but not limited to, a violation of Section 23103 of the Vehicle Code, as specified by Section 23103.5 of the Vehicle Code, or a violation of Sections 23152 and 23153 of the Vehicle Code.
(Added Sec. 3, Ch. 245, Stats. 2010. Effective January 1, 2011.) ↩