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.
The offense of Minor in Possession prohibits persons under the age of 21 to not only possess alcohol but also consume alcohol and 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
- 2. Use of 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 poeple 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 contructive 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 suger can cause fermentation of alcohol in your mouth. REALLY, it happens all the time. If the officer does not wait at least 15 minutes after eathing , 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
MIP first offense is a misdemeanor punishable by a fine of $100.00 and community service.
If fighting a first offense MIP is not an option an offender has two choices:
1. plea 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, no driver license sanctions.
2. plea guilty strait with no jail ever and a $100 fine plus community service (sometimes). The conviction will be on your record. No driver 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 license will be suspended for 30 days followed by 60 days of a restricted license
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 license will be suspended for 60 days followed by 305 days restricted license.
A person under the age of 21 cannot be concivted of MIP under the following circimstances:
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 personel 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.
If you have a DUI OWI case with a blood alcohol or marijuana test the best advice is to hire an attorney who is an trained in blood alcohol and drug testing, a specialist like the Law Office of Barton Morris who not only knows exactly how the MSP FSD works but regularly reviews every client’s blood test and knows how to discover tests that are not reliable. Further, the Law Office of Barton Morris is one of only a few attorneys in Michigan that owns the same software the lab uses to analyze the raw data produced by the lab instruments. Barton Morris is also a member of the American Academy of Forensic Science and keeps abreast on recent developments in the field.
If you or a loved one has a MIP teenage drinking case in the Metro Detroit Counties of Oakland, Wayne or Macomb county cities of Rochester Hills, Auburn Hills, Troy, Royal Oak, Warren, Southfield, Bloomfield Hills, Sterling Heights, Detroit, Westland, or other surrounding areas call the Law Office of Barton Morris who was voted two times as a Top Attorney in Metro Detroit for DUI and MIP Defense.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 19 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013 & 2014 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2017 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”