MIP Facts Consuming Alcohol In Michigan

michigan MIP attorney

What every minor needs to know about MIP cases

Did you know that police almost universally believe that a young person in high school or college out at night has been or is about to drink alcohol.  This often unfair presumption makes young adults under the age of 21 a target. This article explains what a person under the age of 21 needs to know about the underage drinking offense of MIP – Minor in Possession of Alcohol.

In the State of Michigan, an offense of Minor in Possession that is, persons under the age of 21 to not only possess but also to consume alcohol and to have any amount of alcohol in their body. The law prohibits the attempt to possess or consume alcohol by an underage person as well. There are three primary ways that police enforce this law.

  1. Actual or constructive possession of alcohol – the police find you with it.
  2. Use of a Preliminary Breath Test (PBT) to determine a BAC over .02
  3. Seek admission from an underage drinker that they consumed alcohol.

Actual or constructive possession of alcohol

If a police officer personally witnesses a person under the age of 21 with a six pack of beer, for example, that is actual possession of the alcohol and there is not much more that can be argued. But what if that six pack is located in the back seat of a car with several people present? Constructive possession means that a person had knowledge of the alcohol and had the ability to take actual possession of the alcohol. Therefore to prove that the passenger of the vehicle had possession of the six pack located in the back seat the police would have to prove that, not only that the passenger knew the beer was there but that they also had the ability to take possession of it where it was found. If the beer was in a place that was inaccessible then constructive possession cannot be proven. Remember, proof of knowledge of the beer located in the back seat must be proven as well. It is not enough to presume knowledge. If the passenger said “I did not know the beer was there” and there is nothing to prove otherwise, the passenger is not guilty of MIP. The theories of actual versus constructive possession apply in all different factual circumstances like in a home, or a park.

Using a preliminary breath test to determine a BAC in excess of .02 grams per 100 liters of breath

The handheld Preliminary Breath Test (PBT) is used by police frequently to discover teenage drinking or determine if a person under the age of 21 has been drinking alcohol. PBT’s are almost always carried by a police officer in their vehicle. A teenager must remember that they do not have to take a breath test or PBT and the only penalty is a civil infraction with a $100 fine. To protect against being convicted of MIP a person should NEVER SUBMIT TO A BREATH TEST under any circumstances. Even if a person has not be drinking, PBTs can and will make mistakes. The technology is not reliable enough for a prosecution of drunk driving in most states because they are not highly reliable for several reasons. For one, they are not specific to ethyl beverage alcohol. They can test positive for acetone which may be present if a person has diabetes or hypoglycemia. They can also test positive for mouth alcohol instead of breath alcohol. If a person just finished eating pizza for example, the yeast in the pizza mixing with any sugar can cause fermentation of alcohol in your mouth. REALLY, it happens all the time. If the officer does not wait to give a PBT at least 15 minutes after eating, there could be a positive alcohol result even without drinking any alcohol. PBTs also will detect alcohol from the surrounding (ambient) air. If alcohol, including products containing alcohol, was spilled and present in the immediate area it can cause a positive alcohol reading on a PBT.

Police will seek an admission of the use of alcohol

If a police officer asks a minor if they recently drank alcohol and the answer is “yes”, that admission alone can be enough evidence to convict that person for MIP. A person under the age of 21 should never admit to drinking alcohol to a police officer or any person of authority. Based upon the Michigan Rules of Evidence, the admission of a defendant to another that they drank alcohol is admissible in court. Therefore, if your friend says to the officer that they witnessed you or heard you say that you drank alcohol that can be enough subject to issues of credibility.

Penalties for a first offense MIP

A Minor in Possession first offense is a misdemeanor punishable by a fine of $100.00 and community service, with no consequences against your driver’s license.

If fighting a first offense MIP is not an option an offender has two choices:

  1. Plead guilty with a deferred sentence – if you can successfully complete a term of probation not to exceed 24 months the conviction will not be entered onto your record.  Probation terms will be no use of drugs and alcohol with random testing, substance abuse counseling, community service, monthly reporting of probation, $100 fine plus probation and court costs in addition to all of the costs incurred for testing and treatment. If you violate any term of probation, a jail term of 30 days can be imposed and loss of the ability to keep the conviction off your record. In either case there will be no driver’s license sanctions.
  2. Plead guilty straight with no jail ever and a $100 fine plus community service (sometimes). The conviction will be on your record. No driver’s license sanctions.

The bottom line is, on a first offense MIP, take the opportunity to keep it off your record unless you think you may not comply with the terms of probation then take the misdemeanor and save yourself the hassle of probation and all of its conditions and the possibility of jail.

Penalties for second offense MIP

  • Probation including its regular terms, up to 30 days in jail for any probation violation, up to $200 fine.
  • Driver’s license will be suspended for 30 days followed by a restricted license for 60 days.

Penalties for third or subsequent offense MIP

  • Probation including its regular terms, up to 60 days in jail for any probation violation, up to $300 fine.
  • Driver’s license will be suspended for 60 days followed by a restricted license for 305 days.

Additional Defenses

A person under the age of 21 cannot be convicted of MIP under the following circumstances:

  1. The place where the alcohol consumption occurred was legal for minors (like Canada).
  2. If the minor initiated contact with law enforcement or emergency medical personnel for assistance    with a legitimate health care concern.
  3. If the minor presented himself or accompanied another to a health care facility or agency for treatment of a medical condition.
  4.   The consumption of alcoholic liquor by a minor who is enrolled in a course offered by an accredited postsecondary educational institution in an academic building of the institution under the supervision of a faculty member is not prohibited by this act if the purpose of the consumption is solely educational and is a requirement of the course.