Updated: September 9, 2021; Original Post: September 7, 2018
Have you or your minor child been charged with minor in possession in Texas? Unfortunately, this is a common occurrence in areas police know that college students hang out. For example, our office is located near Texas Christian University in Fort Worth, Texas. Fort Worth police officers tend to place themselves on the outskirts and inside the football stadium near game time. They are aware that there is tailgating going on and that people will be enjoying alcoholic beverages as part of their celebration. However, most college students are not paying attention to the threat that exists if they choose to possess alcohol at a game.
What if the minor was not drinking? What if they were holding someone else’s beer? Can you really be charged with minor in possession when you were not drunk or even drinking? Unfortunately, yes – you can.
If your child gets slapped with a minor in possession charge, you may be blindsided and unsure of what is involved. Will they be fined? Will they have to spend time in jail?
In this post, we’ll detail what you need to know about minor in possession charges and how to fight back with the help of a knowledgeable lawyer.
Texas Minor in Possession Laws
The Texas Alcoholic Beverage Code prohibits the following activities for those under the age of 21:
- Purchase of alcohol
- Attempt to purchase alcohol
- Consumption of alcohol
- Possession of alcohol
- Driving or operating watercraft or motor vehicle while under the influence of alcohol
- Misrepresentation of age
This law essentially prohibits a minor from making any contact with alcohol. Here are examples of situations where this may apply.
- Touching alcohol
- Holding alcohol
- Consuming alcohol
- Transporting alcohol
While a minor can lawfully be in proximity to a legal consumer of alcohol, he or she cannot have constructive possession of the alcohol. Examples of constructive possession include the following scenarios:
- Driving or riding in a vehicle where alcohol is readily available
- Sitting at a table where a pitcher of alcohol is available
- Gathering empty alcohol containers to discard
- Holding alcohol for another person
- Using an alcohol container as a spittoon or repository
If your child has been accused of minor in possession in Texas, it’s important to contact a skilled criminal defense attorney to understand how the law applies in your unique situation.
Exceptions to Texas’s MIP Law
There are four main areas of exceptions that allow a minor to be in the presence of alcohol in our state.
- If the minor is in the visible presence of a parent, legal guardian, or spouse, the law will not apply.
- Another exception is possessing alcohol within the scope and course of employment if the employer follows regulations.
- A minor is also allowed to purchase or possess alcohol if supervised by a peace officer who is enforcing minor in possession laws.
- A minor may also be protected from liability if he or she makes a request for emergency medical care for another person who may have overdosed on alcohol.
Three stipulations apply in this last scenario. The minor must have been the first person to make the call for emergency help, and the minor must have remained at the scene until emergency help arrived. The minor must also act in full cooperation with emergency medical workers and law enforcement officers.
Example case study: A TCU college student was in his freshman year and attending a football game at the TCU stadium in Fort Worth, Texas. His parents had flown in from out of state to enjoy a parent’s weekend with their minor child. Both the minor and his parents were at the football game enjoying their time together, but the police were also walking around looking for anyone that was publicly intoxicated or minors in possession of alcohol.
My minor client is walking around holding his dad’s beer while his father is 50 yards away talking to a friend. The police approach the minor and proceed to bring charges of minor in possession of alcohol. Understandably, the minor was upset. He had been given permission to hold his dad’s beer and his father had told him he was allowed to take a drink. Should the minor have been charged with minor in consumption?
Although the minor, in this example, was charged by the Fort Worth police, we were able to show the municipal prosecutor that the minor was in the visible presence of a parent, legal guardian or spouse. As such, an exception to the law existed and the case warranted immediate dismissal.
Like this case study, you may have a situation where an exception applies that would permit your minor in consumption case to be dismissed. Check with an attorney to know if an exception applies in your child’s case.
Penalties for a Minor in Possession Conviction in Fort Worth, Texas
Penalties for a minor in possession charge can be serious. This offense is charged as a Class C misdemeanor, and if your child is convicted, he or she could face the following penalties.
For a first offense, a conviction can result in between eight and 12 hours of community service. These community service hours are preferred to be related to education about and prevention of alcohol misuse.
Additionally, the court system will revoke the defendant’s driver’s license for 30 days and they will be required to attend alcohol awareness training and make a report after 90 days of treatment. Failure to complete the program could result in further revocation of a driver’s license for up to six months.
Alternatively, the result of a first offense could be a deferred disposition or adjudication.
If two or more previous offenses led to convictions in the same area, the defendant must pay a fine between $250 and $2,000, serve a jail sentence of up to 180 days, or both.
Additionally, he or she can expect to serve between 20 and 40 hours of community service for a subsequent offense, have their license revoked for 60 days for a second offense, and for 180 days for three or more offenses. They will also have to complete alcohol awareness training, and the penalty associated with failing to complete this program after subsequent offenses is a one-year driver’s license revocation.
In all cases, the defendant or defendant’s parents or legal guardians will be responsible for any court fees.
Obviously, this is something that no parent wants to have to think about, but the reality is that there is a lot of underage drinking going on at Texas universities, and you aren’t around to stop it. Hopefully your young adult will make smart choices, but if they don’t and end up getting caught, you need to know what you’re up against.
Is It Possible To Get A Minor In Possession Off My Record?
Yes, it is possible to get a minor in possession charge removed from your criminal record. However, it is very important that your criminal case is handled properly. Failure to resolve the case in the proper way could result in you being barred from getting the arrest or the charge expunged from your record.
For example, if a parent and minor appear in court without an attorney, many times the prosecutor will tell you that you have two options: pay the fine or go to trial. Whatever you do, DON’T PAY THE FINE! Paying the fine on a minor in consumption case is the equivalent of pleading guilty to the crime and it becomes a conviction on your permanent criminal record. However, if you tell the municipal prosecutor, you want a jury trial, they will not be afraid of you either. You are not an experienced criminal attorney.
What can a criminal attorney do for your Minor in Possession charge? An experienced criminal defense attorney can send in a letter of representation to the court and move the court setting from a Pro Se Docket (those who represent themselves) to an Attorney Docket. At the attorney docket, you will not be required to say or do anything, and your criminal lawyer can argue your case and negotiate a more favorable result.
What do we mean by a favorable result? Many times, the best criminal attorneys can negotiate a dismissal of the charges in one of several ways. First, after examining the evidence provided, your criminal lawyer may be able to show the prosecutor that it would be difficult for the prosecutor to prove your case beyond a reasonable doubt. Remember, you do not have to prove anything! The burden to prove the crime of minor in possession is always on the State of Texas! They must prove every element of the crime beyond a reasonable doubt.
What if you were in possession of alcohol and have no legal defense? The best criminal lawyers may be able to negotiate a conditional dismissal of your charges. Sometimes, a criminal attorney can persuade the prosecutor to dismiss a minor in possession case in exchange for paying a reduced fine. What is most important is that the minor in possession case must resolved in a manner that makes it eligible for an expunction.
Generally, to have your minor in possession charge expunged from your criminal record, you must resolve your case in one of the following ways:
- Dismissal – if your criminal attorney can negotiate a dismissal of your charges for lack of evidence, you will be eligible to have your minor in consumption case expunged from your record. What if the officer does not show up at the jury trial setting? Your case could be dismissed and eligible for an expunction under this scenario as well.
- Conditional Dismissal – if it can be proven beyond a reasonable doubt that you or your child committed the crime of minor in possession of alcohol, you may still be able to get your case dismissed through a conditional dismissal. A conditional dismissal (mentioned above) would provide eligibility for an expunction.
- Not Guilty Verdict at a jury trial – you always have the right to a jury trial. If your criminal attorney aggressively brings your arguments to a jury and you are given a not guilty verdict, you are immediately eligible to have the entire record expunged from your criminal record.
What Will Happen At Court On A Minor In Possession Charge?
As mentioned above, if you represent yourself, you will be required to attend a Pro Se court setting where you will negotiate directly with the municipal prosecutor. Normally, this prosecutor will make you an offer of paying the fine or going to trial. Unfortunately, most prosecutors see this process as a numbers game, and they are only interested in you taking their plea deal and paying the fine or they may choose to force you into a trial where you represent yourself.
Although courts vary on their procedures, you can expect that if you hire a criminal attorney to represent you on your charge, the case will be moved to an attorney docket. The first court setting at an attorney docket will allow your criminal defense attorney to speak on your behalf and work to negotiate a possible dismissal or plea offer.
Depending upon the court rules, you may be required to attend the court settings. If you are required to attend, you will enter the courtroom, check in with the bailiff so that they know you are present and on time and then take a seat to wait for your attorney to work on your case.
If a favorable resolution is not received at your court date, your criminal attorney has a right to set your minor in possession of alcohol case for a jury trial. During the time leading up to your jury trial setting, it may be possible for your criminal lawyer to negotiate a dismissal. Many times, courts are only able to try one or two cases at a trial setting and if your police officer does not show up for the trial setting, the case is likely to be dismissed.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.