Minor in Possession of Alcohol – California Law & Penalties

Being a minor in possession of alcohol is a crime in California, as it is in most states. The law prohibits persons under 21 years of age from possessing an alcoholic beverage in any public place. The offense is a misdemeanor punishable by community service and a fine.  

Business & Professions Code 25662 states that “(a) Except as provided in Section 25667 or 25668, any person under 21 years of age who possesses any alcoholic beverage 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.”

Defenses

There are several legal defenses that apply to this law.  For example:

• the minor did not actually possess the alcohol (it was not theirs),
• the minor was delivering it under orders from a boss / parent / guardian and only possessed it for that limited purpose,²
• the alcohol was discovered during an illegal search and seizure, or
• the minor otherwise acted responsibly by calling 911 to report that they or another minor needed medical attention.³

Penalties

Although this section is only punishable by community service and/or a fine, it is nevertheless a misdemeanor.⁴ This means that a conviction will become part of one’s permanent criminal record, which is why it is important to fight this charge.

In addition, Vehicle Code 13202.5 VC provides that a conviction for violating California’s minor in possession law will result in

• a one-year suspension of the minor’s driver’s license or
• a one-year delay in their opportunity to obtain a driver’s license if they are not old enough to obtain a license.

This law further provides that an additional one-year suspension will be added to each subsequent underage alcohol or drug-related conviction that they suffer.⁵

In this article, our California criminal defense attorneys⁶ will discuss:

• 1. What is California’s minor in possession law?
  • 1.1. Possession
  • 1.2. Alcoholic beverage
  • 1.3. Public place
• 2. Is it possible to get the charges dismissed?
  • 2.1. You didn’t possess the alcohol
  • 2.2. You possessed the alcohol for an approved
    limited purpose
  • 2.3. The alcohol was discovered pursuant to an illegal search and seizure
  • 2.4. You called 911
• 3. What are the potential consequences?
  • 3.1. Juvenile proceedings
• 4. Are there related laws?
  • 4.1. Selling or furnishing alcohol to a minor
  • 4.2. Parents allowing children to consume alcohol in their home
  • 4.3. Contributing to the delinquency of a minor
  • 4.4. Drunk in public
  • 4.5. Possessing an alcoholic beverage in a motor vehicle
  • 4.6. DUI laws that pertain to minors under 21
  • 4.7. Loitering to solicit the purchase of alcohol

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is California’s minor in possession law?

California’s minor in possession “MIP” law prohibits minors – that is, persons under 21 – from possessing alcoholic beverages in any public place.⁷ Minors who consume alcohol (“underage drinking”) may or may not be prosecuted for criminal activity, depending on the circumstances (discussed in more detail below in Section 1.3. Public places).

Before the prosecutor can prove that you violated California’s MIP law, they must prove the following facts (otherwise known as “elements” of the crime):

1. at the time of the offense, you were under 21,
2. you possessed an alcoholic beverage, and
3. the possession occurred in any public place, in a place open to the public or on any street or highway.⁸

While this law may seem fairly self-explanatory, let us take a closer look at a few of these terms and phrases to gain a better understanding of their legal definitions.

1.1. Possession

You can possess an alcoholic beverage

1. personally or constructively, and
2. by yourself or with another person.

Any of these types of possession can lead to a conviction for this offense.⁹

Examples: If you are holding a can of beer, you clearly possess the alcohol.

But let us say you put your beer down on the curb next to you.  Even though you are no longer personally holding it, it is still under your control.  This means that you “constructively possess” the beer.

And finally let us say that you and a friend are sharing a beer.  Regardless of whether one of you is actually holding the beer – or whether it is sitting on the curb – you two “jointly” possess the beer.

1.2. Alcoholic beverage

An alcoholic beverage is defined as a liquid or solid material that contains at least one-half of one percent of alcohol that is intended to be consumed. This includes “hard” alcohol, spirits, wine, beer and other types of liquor.¹⁰

1.3. Public place

California’s minor in possession law is very specific about where it is illegal for a minor to possess alcohol.  This law specifically states that it is against the law for a minor to possess alcohol

1. in a public place (such as a park),
2. in a place that is open to the public (such as a bar or restaurant), or
3. on any street or highway.

And as Rancho Cucamonga criminal defense attorney John Murray¹¹ explains,

“This list excludes private locations such as a person’s home.  A minor who consumes alcohol in a private home and remains in that home does not necessarily commit a crime.”

If the minor leaves the home and brings their alcohol into a car, they may face charges for violating Vehicle Code 23224 VC California’s “open container” law against possessing an alcoholic beverage in a vehicle.

In addition, if the minor is impaired and leaves the home, they face charges under

1. California’s DUI laws that pertain to minors under 21 which include
   • Vehicle Code 23136 VC: California’s Zero Tolerance Law (a civil offense)
   • Vehicle Code 23140 VC: Under 21 DUI with a BAC of 0.05% – 0.07% (an infraction), or
   • Vehicle Code 23152a VC: Driving Under the Influence (a misdemeanor),
   • and/or
2. Penal Code 647(f) California’s drunk in public law.

In addition, the owner of the residence may face criminal charges as well under Business and Professions Code 25658.2 – California’s law against parents allowing children to consume alcohol in their home (discussed in more detail below in Section 4.2.).

Along these same lines, any business owner who allows a minor to consume alcohol in their establishment also faces prosecution under Business and Professions Code 25658 – California’s law against selling or furnishing alcohol to a minor.

Finally, both parents and business owners may also face charges under Penal Code 272 PC – California’s law against contributing to the delinquency of a minor.

2. Is it possible to get the charges dismissed?

There are a variety of legal defenses that may be applicable to fight your “minor in possession” charges. The following are some of the most common:

2.1. You did not possess the alcohol

If you did not possess the alcoholic beverage – but rather it belonged to someone else – you are not guilty of this offense.

You must personally or jointly possess alcohol in order to violate this law. Simply being present while other minors possess alcohol is not enough to

1. justify a conviction for minor in possession of alcohol, or
2. sustain a conviction for violating California’s aiding and abetting laws with respect to Business and Professions Code 25662.¹²

2.2. You possessed the alcohol for an approved limited purpose

Business and Professions Code 25662 – California’s minor in possession law – provides an exception for authorized possession for a limited purpose.

If you are under 21 and are delivering alcohol under the direction of

1. your parent or another caregiver, or
2. pursuant to your job,

this will serve as a complete defense to a California MIP charge. ¹³

Example:  You are a delivery boy for a local convenience store.  Your boss instructs you to take a variety of items, including a six-pack of beer to a customer.  Because you are obeying his orders – and are doing so pursuant to your job – you are not guilty of violating this law.

The fact that you possessed alcohol for this limited purpose is an affirmative defense, which means that it is up to you (through your attorney) to prove that you fell within this authorized exception.¹⁴

2.3. The alcohol was discovered pursuant to an illegal search and seizure

Even if you are technically guilty of being a minor in possession, you may be absolved of criminal liability if the police discovered your alcohol through an unlawful search and seizure.

If you can prove that the cops violated California’s search and seizure laws, perhaps by

• searching you or your property without a valid California search warrant, or
• unlawfully detaining or arresting you in the first place in violation of California’s probable cause laws,

your case may be dismissed or at least significantly reduced.

2.4. You called 911

If at the time of the alleged offense you were under 21 and you

1. called 911 to report that yourself or another person was in need of medical assistance due to alcohol consumption,
2. you were the first person to call 911,
3. you remained on the scene until medical assistance arrived, and
4. you cooperated with those who were providing medical assistance and any on-scene law enforcement officers,

you will be immune from criminal prosecution under California’s minor in possession law. However, if the alleged offense also included reports of any drinking and driving, this defense will not apply.¹⁵

3. What are the potential consequences?

Business and Professions Code 25662 PC is a misdemeanor.¹⁶ If convicted, you face

• a $250 fine (∗$500 for a second or subsequent violation),
• between 24 and 32 hours of community service at an alcohol or drug treatment center or at a county coroner’s office (∗between 36 and 48 hours for a second or subsequent violation),
• enrollment in a youthful drunk driver program (alcohol education program),¹⁷ and
• a one-year driver’s license suspension or a one-year suspension delaying your eligibility to obtain a license if you have not yet received your driver’s license (and an additional one-year suspension for each subsequent underage alcohol or drug-related conviction).

Your driving privilege is suspended pursuant to California Vehicle Code 13202.5 VC.¹⁸ Under this law, there may be ways to modify your license suspension if

1. following your conviction, you do not sustain another conviction within a 12-month period,¹⁹ or
2. you present a “critical need to drive” because public transportation is not reasonably available and you must drive to
   • school,
   • work (where your family relies on you to work to help with financial support), or
   • medical appointments to help an ill family member.²⁰

3.1. Juvenile proceedings

If you are under 18 at the time of the alleged offense, your case will proceed through the California Juvenile Court system. This means that instead of a jury trial, your case would be determined by way of a California juvenile adjudication hearing.

If the judge “sustains” the petition, that is equivalent to a guilty verdict, and the misdemeanor will become part of your permanent criminal record.

The good news is that our firm knows the most effective ways to help seal California juvenile records and, similarly, how to expunge California adult criminal records.

4. Are there related laws?

There are a variety of offenses that are closely related to California’s minor in possession law because they are either charged in addition to or in lieu of Business and Professions Code 25662 BP.

The following are some of the most common:

4.1. Selling or furnishing alcohol to a minor

Business and Professions Code 25658 California’s law against selling or furnishing alcohol to a minor prohibits

1. giving or selling alcohol to minors under the legal drinking age, and/or
2. allowing minors to consume alcohol on your premises under certain conditions.

Violations of this law allow prosecutors to charge the adult with this offense while simultaneously prosecuting the minor for being in possession of the alcohol that the adult furnished.

Furnishing alcohol to a minor is a misdemeanor, punishable by

• fines,
• community service and
• a possible jail sentence.²¹

4.2. Parents allowing children to consume alcohol in their home

Business and Professions Code 25658.2 BP prohibits parents from allowing anyone under 18 years old from consuming alcohol or drugs in their home if

1. the child has a blood alcohol concentration “BAC” of 0.05% or greater or is under the influence of drugs,
2. the parent knowingly allows the child to then drive a car, and
3. that child causes an accident.

This offense is a misdemeanor, subjecting an offender to

• up to one year of county jail time and
• a maximum $1,000 fine.²²

4.3. Contributing to the delinquency of a minor

Penal Code 272 PC California’s law against contributing to the delinquency of a minor essentially prohibits committing an act or failing to perform a duty that causes a minor to behave in an unlawful manner.

This law not only applies to adults who contribute to the delinquency of a minor but also to minors who contribute to the delinquency of other minors.

So if (as an adult) you furnish alcohol to minors, prosecutors could also charge you with this offense. If (as a minor) you are with a group of minors where you are all in possession of and/or consuming alcohol, prosecutors could charge you with this offense and with being a minor in possession.

Penal Code 272 PC is a misdemeanor, subjecting you

• to up to one year in county jail and
• a maximum $2,500 fine.²³

4.4. Drunk in public

Penal Code 647(f) California’s drunk in public law prohibits being intoxicated in public to the point where you

1. cannot exercise care for yourself, or you present a safety risk to others, and/or
2. interfere with, obstruct or prevent others from using streets, sidewalks or other “public ways.”

If you not only possess alcohol but have also consumed alcohol and satisfy these criteria, prosecutors could charge you with both of these offenses.

California’s drunk in public law is a misdemeanor subjecting you to

• up to six months in jail and
• a maximum $1,000 fine.²⁴

4.5. Possessing an alcoholic beverage in a motor vehicle

Vehicle Code 23224 VC (one of the California Open Container laws) prohibits minors under 21 from driving or riding in a car with an alcoholic beverage in the car unless

1. they are accompanied by a parent / guardian for the purpose of transporting that alcohol pursuant to the adult’s work, or
2. they do so under the direction of their employer / parent / guardian.

This offense is a misdemeanor, punishable by

• up to six months in county jail,
• a maximum $1,000 fine,
• a one-to-thirty day impound of the car, and
• a driver’s license suspension as defined above under Section 3. Penalties, Punishment and Sentencing.²⁵

4.6. DUI laws that pertain to minors under 21

If you not only possess alcohol, but you also consume alcohol and then drive, you face prosecution under California’s DUI laws that pertain to minors under 21. These include

• California Vehicle Code 23136 VC: California’s Zero Tolerance Law (a civil offense),²⁶
• California Vehicle Code 23140 VC: Under 21 DUI with a BAC of 0.05% – 0.07% (an infraction),  or²⁷
• California Vehicle Code 23152 VC: Driving Under the Influence
  (a misdemeanor).

The penalties for these offenses range, depending on which charge you face, the circumstances of the offense, and whether it is a first offense, second offense, or subsequent offense. Predictably, first convictions carry lesser penalties than subsequent ones.

4.7. Loitering to solicit the purchase of alcohol

Penal Code 303a PC, California’s law against loitering to solicit the purchase of alcohol, makes it a misdemeanor to

• loiter outside of an establishment that serves alcohol to be consumed on the premises,
• with the purpose of persuading other patrons to buy you alcohol.²⁸

Minors sometimes acquire alcoholic beverages by going to bars or restaurants and finding someone to get drinks for them. In certain circumstances, criminal charges under this law can result.

Call us for help…

If you or a loved one is charged with Business and Professions Code 25662 BP / Vehicle Code 13202.5 VC minor in possession of alcohol and you are looking to hire an attorney for representation, we invite you to contact our criminal defense lawyers at Shouse Law Group. We can provide a free consultation in the office or by phone.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

We also have law offices in Denver. Learn about the Colorado crime of minor in possession (18-13-122 C.R.S.).

We also have law offices in Las Vegas and Reno, Nevada. Learn about the Nevada crime of minor alcohol possession (NRS 202.020).

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