Underage Possession of Alcohol

In Florida, as in every other state in the U.S., no one under the age of 21 may possess an alcoholic beverage subject to a few exceptions such as for religious, medical or educational purposes. Some states do allow underage drinking and possession in private clubs or establishments. In Florida, a minor, or person under the age of 21, may not possess alcohol subject to two limited exceptions. The offense is also referred to as Minor in Possession or MIP.

For persons who are at least 18 years of age, they may possess alcohol if employed in the sale, preparation and/or service of alcoholic beverages. This means that your 18-year-old daughter may serve alcohol at a restaurant or bar but may not consume it. The only other exception to the state law on prohibiting possession of alcohol by a minor in Florida is if it is tasted by a student who is at least 18-years of age as part of a class at an accredited post-secondary educational institution. The student may taste the alcohol only and not drink it.

What is Possession?

The legal definition of possession in this context means actual or constructive possession:

Actual Possession

You are in actual possession of alcohol if it is on your person, or within your immediate vicinity and you have control over the alcohol. This means holding it or having it in your pocket or purse.

Constructive Possession  

Although you may not have a can of beer, glass or container of alcohol in your hand or purse, you can still legally possess it. To be in constructive possession, these conditions must be present:

1. Knowledge of the alcohol’s presence
2. Knowledge that possession is illegal
3. The alcohol was close or near enough for them to actually possess it or you had control over it

This means that your young teenager could be arrested if you have an alcoholic drink at a dinner table where your child was sitting next to you and could easily reach it, and your child was aware it was alcohol and that it is unlawful for the child to possess it.

A minor who carries cans of beer from your car could also be charged with Underage Possession of Alcohol under Florida law. However, there is case law whereby temporary possession of alcohol, such as the scenario where a minor carries beer from a car to the house or passes a glass of wine from adult to another, does not establish complete control or dominion over it so that no legal possession occurred.

Penalties for Underage Possession

A first offense for violating Fla. Statute § 562.111 is a Second Degree Misdemeanor. If convicted, the minor faces:

• Up to 60 days in jail
• A fine of no more than $500
• Probation of 6 months

Any subsequent conviction is a First Degree Misdemeanor with the following penalties:

• Up to one year in jail
• A fine up to $1000
• Probation for 1 year

Further, under Fla. Statute § 322.056, minors convicted of MIP will have their driver’s licenses suspended or withheld by the Department of Highway Safety and Motor Vehicles for 6 months to one year. A second conviction results in a 2-year suspension.

Use by Minor of False ID to Obtain Alcohol

Under Fla. Statute § 322.212, it is a Third Degree Felony to possess or use a phony ID, or a borrowed or forged one, to buy or possess alcohol. The penalties include:

• Up to 5 years in state prison
• A fine up to $5000

It is uncommon for a minor to be charged under this statute. In most cases, the card is confiscated by the bar or the minor is simply refused service there or anywhere else the person is attempting to buy alcohol. If arrested and charged, the minor has usually been involved in some other criminal activity and the card is found by police.  However, locally the Florida State University Police Department and the Tallahassee Police Department have been arresting students and charging them with this felony offense.  These charges are almost always successfully defended by a local, experienced criminal defense attorney.

Minors and Driving Under the Influence of Alcohol

Most adults are aware that their blood alcohol concentration (BAC) level may not be 0.08% or higher when driving a motor vehicle. For drivers under the age of 21, there is a zero tolerance level so that a 0.02% level will subject the minor to civil and criminal penalties.

Minors also may not refuse to take any preliminary tests such as field sobriety tests to determine if their coordination is impaired, which is an indication of being under the influence. A minor who refuses is subject to arrest and loss of driving privileges.

Underage motorists are also subject to the state’s implied consent law regarding testing of their BAC if the police officer has probable cause to believe they were driving under the influence. Unless they have a reasonable excuse for not submitting or the officer lacked probable cause to stop the car or to believe they were driving while under the influence, they will lose your license for one year. If their BAC is at least 0.05%, their license will be suspended until age 21 and the minor completes a substance abuse class.

Collateral Consequences of Underage Possession of Alcohol

A minor found guilty of Underage Possession of Alcohol or adjudicated delinquent has a criminal record that is accessible to the general public in any public database used for criminal background checks. Some juvenile records may be sealed at age 23 or 25, depending on the offense, but not if the minor was convicted or adjudicated delinquent.

Having a criminal record can have serious consequences to anyone’s life and ability to enjoy the same benefits and opportunities as anyone else. An employer or landlord can access your public records and may deny you employment or lease you a residence based on your criminal record. When applying to a college or university, you are typically asked about your criminal background. If you do not answer truthfully, your application will be denied and you could face perjury charges.

Persons with an Underage Possession of Alcohol conviction also face obstacles in receiving student aid from a state or federal agency. Federal law will delay or deny student financial assistance if you have a misdemeanor conviction. Any delay or loss of eligibility is one year from the date of conviction for a single conviction if committed while the student was enrolled in college and receiving federal Title IV aid.

You also face stricter scrutiny from the college itself for a misdemeanor conviction regarding student financial assistance as well as student housing.

Consult an Experienced Criminal Defense Attorney

Parents whose children face MIP charges or worse need legal representation from an experienced Florida criminal defense attorney. There are alternatives to pleading guilty to Underage Possession of Alcohol or other charges such as withholding of adjudication or other diversion programs so that the minor is not burdened with a criminal conviction. In many cases, your attorney can find defenses that can result in a dismissal or other satisfactory resolutions.  Having an attorney at the earliest stages of a criminal or juvenile proceeding can often mean the difference between a conviction and a disposition that will not result in a future hardship for a minor.