Business & Professions Code § 25631 BPC – Selling Alcohol After Hours

Business and Professions Code 25631 BPC is the California statute that makes it a crime for a liquor store, bar, or club to sell alcohol between the hours of 2:00 a.m. and 6:00 a.m. The offense is a misdemeanor punishable by up to 6 months in jail and fines of up to $1000.00.

This law is sometimes called the “California 2am alcohol law”.

The language of the statute reads as follows:

25631. Any on- or off-sale licensee, or agent or employee of that licensee, who sells, gives, or delivers to any persons any alcoholic beverage or any person who knowingly purchases any alcoholic beverage between the hours of 2 o’clock a.m. and 6 o’clock a.m. of the same day, is guilty of a misdemeanor. For the purposes of this section, on the day that a time change occurs from Pacific standard time to Pacific daylight saving time, or back again to Pacific standard time, “2 o’clock a.m.” means two hours after midnight of the day preceding the day such change occurs.

Examples

• a nightclub, after closing, sells one last beer to a patron at 2:02 a.m.
• on Saint Patrick’s Day, a bar owner opens his doors at 5:30 a.m. to celebrate the holiday.
• a liquor store continues to sell alcohol until 4:00 a.m. on New Year’s morning.

Defenses

Luckily, there are several legal defenses that a person can assert. These include showing that an accused party:

• was not an on- or off-sale licensee;
• gave a coerced confession; and/or,
• was arrested without probable cause.

Penalties

A violation of this statute is charged as a misdemeanor (as opposed to a California felony or an infraction). The crime is punishable by:

• imprisonment in the county jail for up to six months; and/or,
• a maximum fine of $1,000.

Our California criminal defense attorneys will explain the following in this article:

• 1. Is it illegal in California to sell alcohol after hours?
• 2. Are there defenses to Business & Professions Code 25631?
  • 2.1 Not an on- or off-sale licensee
  • 2.2 Coerced confession
  • 2.3 No probable cause
• 3. What are the penalties?
• 4. Related offenses
  • 4.1 Alcoholic beverages at a public educational facility – BPC 25608
  • 4.2 Drunk in public – PC 647(f)
  • 4.3 Open container laws – VC23221-23229

1. Is it illegal in California to sell alcohol after hours?

California Business and Professions Code 25631 BPC is the California statute that applies to establishments selling alcohol after permitted hours.

The law says it is a crime if:

1. a defendant is an on- or off-sale premises, or agent, or employee of the premises; and,
2. the defendant sold, gave, or delivered alcohol to a person between the hours of 2:00 a.m. and 6:00 a.m.¹

California law defines an “on-sale premise” as an establishment that is licensed to sell beer, wine, and distilled spirits for consumption on the premises where they are sold.² This typically means a bar or nightclub.

California law defines an “off-sale premise” as an establishment that is licensed to sell alcohol for consumption off the premises where it is sold. This typically means a liquor store.

2. Are there defenses to Business & Professions Code 25631?

A person accused can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire a knowledgeable criminal defense attorney to get the most effective defense.

Three common defenses are:

1. not an on- or off-sale licensee;
2. coerced confession; and/or,
3. no probable cause.

2.1. Not an on- or off-sale licensee

Please recall that the statute only applies to an establishment that is licensed to sell alcohol either on or off its premises. This means it is a legal defense for a defendant to show that while it sold alcohol after hours, it was neither an on- or off-sale licensee. This would apply, for example, if a regular person sold a bottle of alcohol to a friend after hours.

2.2 Coerced confession

This defense applies to the situation where a defendant who gets charged following a confession.

California law states that police may not use overbearing measures to coerce a confession.

If a party can show that the police coerced him into a confession, then:

1. the judge may exclude the confession from evidence; or,
2. the case could get dropped altogether if the party got pressured into confessing to a crime he didn’t commit.

2.3. No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime.

If a person was stopped or arrested for violating BPC 25631, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

“Probable cause” essentially means that there is a reasonable belief that someone committed a crime (based on all of the circumstances).

3. What are the penalties?

A violation of Business and Professions Code 25631 is charged as a misdemeanor. The crime is punishable by:

• imprisonment in the county jail for up to six months; and/or,
• a maximum fine of $1,000.³

Please note that in lieu of jail time a judge may order a defendant to misdemeanor probation. This is also called “summary” or “informal” probation.

4. Related Offenses

There are three crimes related to an establishment selling alcohol after permitted hours. These are:

1. alcoholic beverages at a public educational facility – BPC 25608;
2. drunk in public – PC 647(f); and,
3. open container laws – VC 23221-23229.

4.1. Alcoholic beverages at a public educational facility – BPC 25608

Business and Professions Code 25608 is the California statute that makes it a crime to bring alcohol into a public schoolhouse, or on the grounds of the same.

In particular, BPC 25608 makes it a crime for a person to

• consume,
• sell,
• give, or
• deliver

an alcoholic beverage in a public schoolhouse or on its grounds.⁴

There are some exceptions under BPC 25608. For example, alcohol can be brought on the grounds of a public school if:

• it was acquired, possessed or used at a performing arts facility; or,
• it was served during an event at a time where students were not attending classes.⁵

A violation of BPC 25608 is charged as a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to one year; and/or,
• a maximum fine of $1,000.⁶

4.2. Drunk in public – PC 647(f)

California Penal Code 647(f) PC is known as California’s “drunk in public” (or “public intoxication”) law.

Under Penal Code 647(f), a person commits a crime if he:

1. is unable to exercise care for his own safety or the safety of others, or
2. interferes with, obstructs, or prevents others from using streets, sidewalks, or other public ways.⁷

Drunk in public is a misdemeanor in California.⁸ If convicted of the crime, a person can be punished with:

• up to six months in county jail; and/or,
• a fine of up to $1,000.⁹

4.3. Open container laws – VC 23221-23229

California Vehicle Code sections 23221-23229 VC are collectively referred to as California’s “open container” laws.

Simply put, these laws prohibit driving with an alcoholic beverage in the car that has been opened – even if not consumed.¹⁰

A violation of these open container laws is typically charged as an infraction, punishable by a maximum $250 fine.¹¹

However, if the defendant is a driver, or a passenger under 21 years of age, then he can be charged with a misdemeanor and punished with:

• up to six months in jail; and/or,
• a maximum $1,000 fine.¹²

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