Virginia Underage Possession of Alcohol

The Severity of Underage Possession of Alcohol Charges in VA

Explained by Northern Virginia Defense Lawyer

If you or your loved one (possibly a young adult or teen) has been issued a Virginia Uniform Summons referencing possession of alcohol and/or Virginia Code 4.1-305, then you are on the right page. This is a severe offense because it is considered a Class 1 misdemeanor.

As a Virginia criminal defense attorney who regularly helps people facing DWI, reckless driving, assault, driving on a revoked or suspended license, and other misdemeanors and felonies, I often tell people that they should be careful not to dangerously assume a charge is not as serious as it is. Underage possession of alcohol in Virginia is one such charge that I have seen some people (and, in some situations, their parents) dismiss as not serious enough to warrant the hiring of a defense attorney. If you have thought the same about this offense, consider this:

a Class 1 misdemeanor is punishable by a fine of up to $2,500, 12 month jail sentence, and loss of driving privileges for six months. It also is not something that looks very nice on a criminal record. But wait, there’s more (unfortunately). Underage possession of alcohol is unique and not in a good way. It is punishable by a mandatory fine of at least $500, and 50 hours of community service (unlike typical Class 1 misdemeanors).

For those of you who are 18 to 21 and have been charged with underage possession of alcohol, just know that this offense will be visible to anyone conducting a background check for the rest of your life unless you qualify for expungement.

Is Expungement Possible?

Whether or not you qualify and can expunge the record of the charge depends on how the case plays out. You should certainly talk to your local Northern Virginia criminal lawyer. Jad Sarsour Law offers a heavily reduced fee for our expungement services if we represent the individual on the underlying charge.

Understanding Alcohol-Related Offenses in Virginia

The first important place to look (if one is researching this offense) is Virginia Code § 4.1-304. If you want to learn more about a charge you or your loved one may be facing, stay on this page, and we will cover the basics. The Code section above has limited exceptions and prohibits the sale of alcohol to:

  • anyone who is intoxicated;
  • interdicted persons (those forbidden by the government); and,
  • persons under 21 years of age.

The underage possession statute itself, 4.1-305, states that any person listed in the above-mentioned statute (304 does include people under age 21) is prohibited from:

  • consuming;
  • purchasing;
  • possessing; or,
  • attempting to consume, purchase, or possess any alcoholic beverage.

Do any exceptions exist?

Yes. But first, realize the difference between a defense and an exception. An exception is a specific factual circumstance or status that is described by the Code of Virginia as excusing culpability for the offense. On the other hand, a defense is a technical or legal assertion, strategy, and/or argument on behalf of the defendant, which either alleges the prosecution cannot meet its burden in some way or that the defendant did the acts alleged but he or she had a justification or excuse and therefore are not guilty. A few exceptions are:

  • if someone has a job and that job requires delivery of alcohol
  • if a parent asks a child who is under 21 to carry or deliver alcohol
  • if a law enforcement officer is under 21 years of age, but the task or mission he is assigned to requires possession of alcohol (i.e., an undercover operation)

Your Virginia defense attorney guides clients throughout the criminal justice process, a service that includes an explanation of the pros and cons of your options at every stage of the case. Obtaining a legal professional’s opinion is something any person charged with a crime in Virginia ought to do very soon after the charge. You will learn the facts that are going to cause problems (possibly) and the facts that will likely benefit your position. First, your specific facts and goals must be communicated. Then, your attorney can analyze the law and perform intensive legal research if your case has unique facts (assuming you choose to hire our local Northern Virginia defense attorney, who agrees to represent you).

Consequences of Underage Alcohol Possession in Virginia

Underage possession of alcohol is a somewhat unique offense in the sense that it is a Class 1 misdemeanor–which is bad enough–but comes with additional mandatory penalties upon a conviction. The Virginia Code section that defines the maximum penalties for a Class 1 misdemeanor tells us that even for an underage possession of alcohol offense, a person may be sentenced to 12 months in jail, fined $2,500, or both.

Possession Law Adds Penalties to Class 1 Misdemeanor

What does this law do above and beyond the typical Class 1 misdemeanor penalty structure? First, the “underage possession” law adds a little more to the penalty ensemble by stating that if convicted, a person must serve a minimum of 50 hours of community service or pay a minimum fine of $500. If the convicted individual is at least 18 years old, his or her license will be suspended for six months to one full year.

Can I drive after my possession of alcohol conviction?

The general answer is no. Your license will be suspended if convicted. But there is good news. First, you can appeal the misdemeanor to the Circuit Court for a new trial. Second, your lawyer can apply for a restricted license on your behalf so that you can still drive in certain places (such as to your job, medical facilities, and other important locations). The application can be completed and submitted, but it is up to the judge and in his or her discretion whether or not to allow you to drive at all. If something is filled out incorrectly or insufficiently, the judge will not be able to accept the application.

Example: if you want to have the opportunity to drive to and from your place of employment while your license is suspended, then on the restricted license application be sure to specify the hours you work, days, and the precise location (the physical address).

Application for Restricted License

There are many reasons why having a lawyer represent you for a criminal offense is important, but the restricted license application benefit is something only some defense attorneys will offer to complete and submit for you at no extra cost. Similar to a Virginia DWI charge (in that this tends to be an offense with hidden costs), there are aspects outside the realm of what goes on in the courtroom that a client looks at his or her lawyer to for guidance.

It has been my observation that the most experienced, successful, and dedicated Virginia criminal law attorneys (at least in Fairfax County, where I know dozens, if not hundreds, of defense attorneys) assist clients with restricted license applications. This inevitably requires some degree of cooperation on behalf of you, the client. Your lawyer will ask you to bring certain information with you to court (or you will be asked to complete an application for a restricted license prior to your court date, and it will be placed in your file and only submitted and signed by you if the case develops in such a way where it is to your advantage).

If a client is not prepared or does not cooperate as necessary to apply for the restricted license on the day of court (for example, you forget your employer’s address), you will need to come back to court on a later day to submit the application. Typically, this would be an extra fee for the client if he or she requires the attorney to return to court after the hearing. But this can be prevented by having the form filled out before the court date.

Your Virginia Jad Sarsour Law criminal defense attorney will tell you the information you will need to provide in order to complete the form.

Jar Sarsour Law Practice Point: prior to arriving to the traffic or criminal courts in the counties of Fairfax, Prince William, Loudoun, Arlington, Spotsylvnia, or Fauquier, or the cities of Alexandria, Mansassas, Fredericksburg, Leesburg, our Virginia criminal lawyer has filled out a completed restricted license application ready to submit to the judge.

When you are looking for a lawyer for your charge, then you may come across two distinct groups of attorneys: you will come across many lawyers who call their firm a General Practice firm. Or, they may refer to themselves as a General Practitioner.

The other grouping of lawyers you will find will be criminal defense attorneys. Their main websites and main business cards will likely say they are defense attorneys or criminal lawyers. They may also reference a sub-specialty. For example, some defense attorneys use slogans to indicate a focus on Virginia DWIs and other offenses.

Who you choose to represent you is a personal choice. All lawyers must not take a case unless it is believed by them that they are able to provide competent representation. That said, if you are like most people, it is not difficult to understand why a lawyer who dedicates his practice to traffic and criminal law matters may be a bit more experienced in those areas, as opposed to the attorney who dedicates his practice to 8 different legal areas.

At the Jad Sarsour Law Firm, all of our clients come to us for criminal defense or traffic defense-related matters. If you do not have a lawyer, or if you do not find an experienced traffic attorney in Virginia, the restricted license application issue could potentially be overlooked or ignored altogether. If not addressed by the lawyer representing you, or if you did not bring the necessary information to complete the application, the restricted application would have to be filled out and submitted later, further inconveniencing you. The moral of this story is:

  1. it is possible in some cases to apply for a restricted license
  2. you will still be limited as far as where and when you may drive
  3. to get back on the road as soon as possible, submit an application on the day of court
  4. some judges will not wait around for a person to fill out a restricted license application
  5. one of the Jad Sarsour Law Firm’s standards is to complete a restricted license application for the client before the court so that if it is needed, it can be submitted on a 2-second notice to the judge

Note: adults (those who are 18 years old but under 21) facing an underage possession of alcohol charge have to participate and enroll in the Virginia alcohol safety action program or local community-based probation service if they wish for a restricted license.

What are my options before the court if I face Virginia’s underage possession offense?

One of the benefits of having a Virginia criminal lawyer on your side is being able to discuss and ask questions about the numerous options you have:

  • the day of the arrest or charge
  • if incarcerated, while in jail
  • if not incarcerated, while awaiting a hearing
  • when in court; and,
  • after the case has been resolved (e.g., expungement options)

Like many offenses in Virginia, a first offender may be able to opt for a program designed to dismiss their case, but only after they meet certain terms and conditions. Furthermore, they will not be able to expunge (or remove from public view) the criminal record. More about the first offender program can be found below and on this website.

Many people who I have met over the years have incorrectly assumed that if a case gets dismissed, then they can expunge the embarrassing criminal record. But this is not true when it comes to many offenses. Always ask your lawyer if you can expunge a record after you take a certain plea deal option!

If you are at least 18 and have never been convicted of underage consumption, possession, or purchase of alcohol (in any state), then the court has the option of offering you the following first-offender program specific to this charge:

the proceedings will be continued to a later date, so you have a chance to comply with probation terms and conditions, such as a suspended license and court-ordered participation in a program (of the court’s choosing)…typically related to treatment, education, and other issues if appropriate. The fees for such programs are the responsibility of the defendant.

Once completed, the court will dismiss the proceedings, and you will not have a guilty verdict next to your name for life. On the other hand, if you take this deal offered by the court (the first offender option), then you will not be able to expunge the record of the initial charge. This means that although there is not going to be a guilty verdict next to the charge and your name upon a criminal record search of your name, there WILL be the record of the charge, forever. For this reason, I often try to find other options for my clients (assuming they do not wish to go to trial).

Why Care About a Record if it Says “Dismissed” Next to the Charge?

You must first understand that there are two types of criminal records. First is the arrest record. I do not mean an arrest record for those who are actually arrested and taken to jail. I mean a record for every person who is either arrested or simply charged and handed a yellow Summons slip for a misdemeanor charge. This is the first record. The second record is the record of the disposition: guilty, not guilty, nolle prosequi, case dismissed, etc.

If you take a first-offender option, as mentioned, you cannot expunge the record of the arrest or charge, and although it will say “case dismissed” next to the charge on your record, anyone will be able to see you were in fact charged. But the real problem is how this works out in the real world. I am working on a blog post and video demonstration of this issue for release soon: in sum, the problem is that many record search programs require the user to navigate deeper into the database to see the disposition of a charge on someone’s record. The end result is that if the entity performing the background check is lazy or is cutting costs and not actually clicking or going deeper into the charge disposition that is on the person’s record, then all they will see is that the person in question was charged with the offense. They will not see that the case was dismissed.

Real Examples of Underage Possession

Here are a few case law examples to illustrate how courts have ruled on various issues in the past. Some of these points are interesting, others are humorous perhaps, and still others are probably shocking to some people:

Underage Possession Holdings from Virginia Courts and Other Jurisdictions

It is not a violation of a Constitutional Right (to be free from unusual or cruel punishment) for the government to refuse alcohol to one who is interdicted. [1]

In one case, a defendant’s statements, odor, age, and other pieces of evidence amounted to a finding of sufficient evidence for the conviction:

  • the individual smelled like alcohol;
  • the defendant was not yet 21 years of age;
  • an Alcosensor device detected alcohol in his system; and
  • the defendant told the officer he had drunk an alcoholic beverage earlier that day. [2]

Defendant Sentenced to 12 Months in Jail

In a case out of the 4th Circuit (the federal court system with jurisdiction over Virginia federal matters), we are reminded just how serious this offense is. Sometimes, we lose sight of the fact that this is a criminal charge. In this case, the court ruled that it was not unreasonable to sentence the defendant to a 12-month jail sentence, substantial fine, and supervised release for a year! [3]

Suspicious Actions, Underage Adults Holding Bottles

A Virginia case a few years ago touched on the issue of probable cause. In the case, an officer saw some young people with what appeared to be beer bottles. They were then observed running away from the police. The question was whether or not this gave the officer probable cause to believe a crime was being committed. The court ruled the officer in this case did have probable cause. [4]

Be Careful of Making Incriminating Statements

In another case, the amount (and type) of evidence held to be sufficient to support the conviction of a juvenile was illustrated. In this case, the officer testified that the defendant smelled of alcohol. He admitted he drank alcohol. Since there was a confession, only slight corroboration was needed to secure the judgment or conviction. In this case, the odor of the alcohol was a factor (or the slight corroboration). The moral of this story is not to confess (there is no reason why anyone should talk to police officers without a lawyer present). [5]

Jad Sarsour Law is a Northern Virginia Defense Firm:

Our Virginia criminal attorney takes the time to guide clients through the legal process, including thoroughly explaining various programs, options, and courses of action.

Suggested Underage Possession Statutes to Read

§ 4.1-302. Illegal sale of alcoholic beverages

§ 4.1-302.1. Use of alcohol vaporizing devices

§ 4.1-303. Purchase of alcoholic beverages from person not authorized

§ 4.1-304. Persons to whom alcoholic beverages may not be sold

§ 4.1-305. Purchasing or possessing alcoholic beverages is unlawful in certain cases

§ 4.1-306. Purchasing alcoholic beverages for one to whom they may not be sold

§ 18.2-271.1. Probation, education, and rehabilitation of person charged or convicted

There are many more laws related to alcohol use, possession, sale, and intoxication in general. Below, you will find a list of other related laws from our Virginia criminal lawyer:

§ 4.1-308. Drinking alcoholic beverages or offering them to another in a public place

§ 4.1-309. Drinking or possessing alcoholic beverages in or on public school grounds

§ 4.1-309.1. Possessing or consuming alcoholic beverages while operating a school bus

§ 4.1-310. Illegal importation, shipment, and transportation of alcoholic beverages

§ 4.1-313. Possessing, transporting, etc., alcoholic beverages illegally acquired

§ 4.1-315. Possession without a license to sell alcoholic beverages on the premises of a restaurant

This list does not represent the complete list of offenses we handle. If your offense is not listed on this page or our website, it is probably not one of the more common criminal charges in Virginia. But that does not mean we do not still think you should call our Criminal Law firm and request a free consultation. You can either discuss your facts anonymously over the phone or online, or you may meet at our Virginia criminal lawyer and firm headquarters. Just call 703.665.3719 to get started.

Cases Referenced by VirginiaDefense Attorney

  1. Fisher v. Coleman, 486 F. Supp. 311 (W.D. Va. 1979), aff’d, 639 F.2d 191 (4th Cir. 1981) (decided under former § 4-62)
  2. Hale v. Commonwealth, 23 Va. App. 587, 478 S.E.2d 710 (1996).
  3. United States v. Russell, 2007 U.S. App. LEXIS 11299 (4th Cir. May 14, 2007).
  4. Robinson v. Commonwealth, 47 Va. App. 533, 625 S.E.2d 651, 2006 Va. App. LEXIS 54 (2006).
  5. Commonwealth v. Villafana, 57 Va. Cir. 357, 2002 Va. Cir. LEXIS 216 (Norfolk 2002).

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