MIP (“Minor in Possession” alcohol): Business and Profession Code 25662

College parties are in full swing again.  There will be plenty of beer, wine and even hard liquor available. But if you are under 21 years old, and you decide to drink (even though you are not of legal age in California), you would be wise to exercise some caution in selecting which gatherings to attend and limiting where you can be observed holding your alcoholic beverage if you do not want to be charged with being a minor in possession ("MIP"), a misdemeanor crime in California.   

Any  young person who is caught by a police officer holding an alcoholic beverage while in a public place and while under 21 years old,  can receive a ticket for being a MIP (Minor in Possession) in violation of Business and Professions Code section 25662.  The jury instruction for Business and Profession Code section 25662, CALCRIM NO. 2960, requires the state to prove that:

1. The defendant [unlawfully] possessed an alcoholic beverage (in/on) a (street[,]/ [or] highway[,]/ [or] public place[,]/ [or] a place open to the public);

AND

2. At the time, the defendant was under 21 years old.

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.

Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.

Potential Defenses to Violating the MIP statute

The first obvious defense is that the young person was not on a street, highway, public place, or any place open to the public. Subdivision (b) suggests that a gathering may be deemed open to the public if 10 or more persons are present. 

Second, if the young person was even a minute into the 21^st year, that person did not violate the statute. 

A third defense is found within the statute, which states, “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 any adult.”   

 Penalties for Violating Section 25662

This offense is a misdemeanor.  A first violation is 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 is 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.

The most painful penalty for most young people will be the one-year suspension of driving privileges that can occur with a conviction for this charge under Vehicle Code Section 13202.5. 

Subdivision (c) provides that the penalties imposed under Section 25662 do not preclude the state from charging any additional offenses, such as under Vehicle Code Section 13202.5. Section 13202.5, subdivision (a), provides that for each conviction of a person for an offense specified in subdivision (d), which includes Business and Professions Code section 25662, that is 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.“

 Reduce PC 25662 to an infraction 

Also, Penal Code section 17, subdivision (d), allows the court to reduce some misdemeanors, such as a violation of Section 25662,  to an infraction.  Thus, either you, if you are representing yourself, or your attorney, should make a motion to reduce this misdemeanor to an infraction if you are reading this too late and have already been ticketed with this charge.  

I hope this information helps young people under 21 years of age to exercise caution while attending back-to-school parties.  Parties should be fun and not result in painful consequences. Best wishes for an amazing college experience. 

copyright © 2016 Christine Esser

Disclaimer

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed

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