Use of a Preliminary Breath Test (PBT) to determine a BAC over 0.02%.
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, this is actual possession of the alcohol and there’s 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 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’s not enough to presume knowledge.
If the passenger said, “I didn’t know the beer was there” and there’s 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.
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.
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A person under the age of 21 cannot be convicted of MIP under the following circumstances:
The place where the alcohol consumption occurred was legal for minors (like Canada).
If the minor initiated contact with law enforcement or emergency medical personnel for assistance with a legitimate health care concern.
If the minor presented themselves or accompanied another to a health care facility or agency for treatment of a medical condition.
The consumption of alcohol by a minor who’s 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 isn’t prohibited by this act if the purpose of the consumption is solely educational and is a requirement of the course.
An experienced underage drinking (MIP) attorney can help you understand that charges against you as well as your options.
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