Virginia Code §4.1-305 states that no one under the age of 21 "shall consume, purchase or possess, or attempt to consume, purchase or possess, any alcoholic beverage." It also contains a second section that prohibits anyone under the age of 21 from using, or attempting to use, a false or fictitious driver's license or ID to drive a motor vehicle or purchase alcohol. This is a misdemeanor criminal offense and may result in jail time, fines and loss of license in Virginia.
What the State Needs to Prove to Get a Conviction
The prosecutor (Commomwealth Attorney) must prove beyond a reasonable doubt, the following elements of the offense of Underage Possession or Consumption of Alcohol in order to get a conviction:
1. That the person charged is under the age of 21, and
2. That the person purchased, consumed, or possessed alcohol or
3. That the person attempted to purchase, consume, or possess alcohol.
The prosecutor must prove beyond a reasonable doubt the following elements of the False or Fictitious License provision of the law to get a conviction:
1. That the person charged is under the age of 21, and
2. That the person used or attempted to use an altered or fictitious license to drive a motor vehicle or
3. That the person used or attempted to use an altered or fictitious document such as a birth certificate or student ID card to consume, purchase or possess alcohol. or
4. That the person used or attempted to use someone else's license, ID or birth certificate to consume, purchase or possess alcohol.
Observations on the Law and What it Requires
It is important to note that the police do not need to prove that the individual charged had alcohol on their person. It is sufficient that the police smell the alcohol and obtain an admission from the person that they had been drinking alcohol. The police may ask the accused to submit to a Preliminary Breath Test that measures the alcohol content of the blood. Or they request the young person to perform other Field Sobriety Tests, such as the Nine Step Walk and Turn, One Legged Stand, and Horizontal Gaze Nystagmus Test. These tests may demonstrate that the client has recently consumed alcohol and may be impaired.
Virginia law does not require that someone perform these tests or make any statements to the officer. However, in most cases there is such proof. Admissions about alcohol possession or tests performed at the scene of the stop may be used as evidence in court to prove that the person consumed or possessed alcohol. The police do not need to prove that the subject was impaired. Intoxication is not an essential element of the offense under the strict interpretation of the law, but may be used as evidence to show consumption of alcohol.
There are cases where little investigation is done by the police at the scene of the arrest. They may see an alcoholic beverage container near the accused at a party and simply write a Virginia Uniform Summons for Underage Possession of Alcohol. If there are no statements from the person admitting that it was alcohol or that it was consumed, this may enable the lawyer to get the charge dismissed. This is especially true when the beverage container (White Claw, Miller Lite Beer Can, Budweiser bottle) is left at the scene and not tested for alcohol content.
Attorney Yeargan fights hard to undermine the prosecution's case and to argue that the burden of proof has not been met for each element of the offense. This can help get the case dismissed or nolle prosequi in court. Conviction for this type of charge can derail a young adult's employment prospects and hinder their college career.
Description of the Law and the Penalties
The law makes it a Class 1 misdemeanor punishable by up to twelve months in jail and/or a fine of up to $2,500.00. $500 of the fine is a mandatory minimum fine. In lieu of the mandatory, minimum fine, the person may be ordered to perform 50 hours of community service.
The offense is commonly referred to as a "status offense" by lawyers because the age of the accused is a specific element of the charged code.
If convicted, adults 18 and older will have their driver's license suspended for a minimum of six months and a maximum of one year. A restricted license to drive for work, school and medical appointments may be granted for demonstrated hardship. An adult granted a restricted license may be ordered to participate in a probation based program called the Alcohol Action Safety Program (ASAP). The program monitors the person's use of alcohol and compliance with the terms of the restricted license. It has an additional cost of approximately $400 and requires periodic meetings with a probation officer and attendance at ten education classes.
Juveniles convicted of this law are ineligible to receive a drivers license for six months. Juveniles under age 16 must wait an additional six months to get their license once they turn 16 years and three months old.
Any alcohol seized during the arrest of the person may be deemed contraband and forfeited to the state.
Deferral Procedure Available for First-Time Offenders Under Virginia Code §4.1-305 (Diversion Program)
In cases where the charge is a first offense, the court may continue the case for a set probationary period and eventual dismissal. This requires the defendant to stay on good behavior for a set period and successfully complete a treatment or education program such as the Alcohol Safety Action Program. It may include, but does not require, a suspension of the person's driver's license. If the license is suspended, the person may be granted a restricted license to drive for work, school and medical appointments. Community service may also be ordered by the court as a condition of the probation.
If the person successfully completes all conditions set by the court, the case will be dismissed. There will be no conviction on the person's criminal history. However, if the charge is dismissed pursuant to this deferral procedure the person is not eligible for expungement of the original arrest on their record.
Failure to successfully complete all of the conditions of the deferral program will result in a conviction on the criminal record and imposition of fines and/or jail time.
The deferral procedure is not available to those arrested for using a fictitious or false license to drive a motor vehicle or purchase alcohol.
Options to Avoid Conviction and the Diversion Program for First-Time Offenders
In circumstances where the person has no previous arrests, Attorney Yeargan prefers to negotiate with the prosecutor for an informal deferral of the charges for dismissal. This may allow the defendant to avoid the ASAP program and license suspension entirely. Pursuant to an agreement, the case may be deferred for dismissal for good behavior and completion of community service hours. At the conclusion of the case, the matter is dismissed. The client is then eligible for expungement of the arrest (there will be no plea on the record).
The law office recommends serving fifty hours of community service at a non-profit entity before the court date for this charge. It is a good idea to get a letter from the non-profit stating the number of hours performed, the dates of service, and the type of work completed. Clients may contact Volunteer Fairfax and sign up for their community service program. If the client needs a continuance of the court date to get time to complete the community service, the law office can help with this chore.
Attorney Yeargan will often refer the client to a private substance abuse program for evaluation and treatment before the court date. The law office recommends the program offered by Mr. George Young at Envision Counseling His program offers virtual counseling and support by telephone and internet during the Coronavirus health crisis.
The counseling program allows the client to obtain a treatment letter from a counselor that may be shown to the prosecutor at the court date. The prosecutor (Commonwealth Attorney) may then be receptive to an agreement allowing dismissal or nolle prosequi with less restrictive deferral conditions. The ultimate goal is to achieve dismissal of the charge and eventual expungement of the arrest so that the client is not hindered by a criminal record.
Contact the Law Office Today for A Free Analysis of Your Case
If you need help with a pending Underage Possession or Consumption of Alcohol case in Fairfax County, Prince William County (including Dumfries, Occoquan, Woodbridge, Haymarket), Stafford County, Arlington County, Loudoun County, the City of Alexandria, Warren County, Caroline County, or any other location in Virginia, contact the law office for assistance. Attorney Yeargan will discuss strategies for obtaining the best court result and advise you what steps need to be taken to prepare for court. The law office has 22 years of trial experience and extensive knowledge of the judges, prosecutors, and court system in this state. He is available for phone or in person consultations and will provide a weekend appointment, if necessary.