This question routinely arises in two situations in State College:
1) after a Penn State student is observed by an officer outside a Penn State football game holding a can of beer, and the person is charged with Underage Drinking; and
2) when the State College Police respond to a noise violation at a State College apartment, stumble upon an underage drinking party, and issue citations to people sitting around a coffee table covered in beer cans.
People wonder how an underage person can be charged with Underage Drinking in either scenario. While we generally refer to the charge as "Underage Drinking," section 6308 of the Crime Code actually prohibits a person under the age of 21 from attempting to purchase, purchasing, consuming, possessing, or knowingly and intentionally transporting a liquor or malt or brewed beverage. So, the law is actually much broader and punishes a lot more conduct than simply underage drinking. Under both of the scenarios above, the underage person can be charged with a violation of 6308 based upon "possession" of alcohol. There are two types of "possession," actual and constructive. Actual possession is when something is found on a person, such as a wallet being found in a person's pocket. In the football tailgate scenario, if the person was holding a can of beer, then he or she was in actual possession of the alcohol. On a side note, it is not a defense that the underage person was simply holding the alcohol for someone else. The judge generally would not believe such an argument, and, again, the law only punishes possession, so the officer does not need to present any evidence to prove that the underage also had intent to drink the alcohol. Constructive possession means that a person was aware of the existence of an item and had the ability to exercise dominion or control over that item. An example of constructive possession would be an underage party in State College. The people sitting around the coffee table could readily see the beer cans and thereby could have grabbed a can at any point. As such, an officer could charge those people with a violation of 6308 based upon a constructive possession argument. While the officers in the hypothetical situations may have sufficient evidence to prove "possession," the officers would still need to prove that the can or cups contained alcohol and that the person was under the age of 21 in order to obtain a conviction of Underage Drinking. Also, there could be suppression issues regarding the officer's actions in investigating and detaining the suspect. If evidence is suppressed, then it cannot be considered by the judge in determining guilt or innocence. For examples of how such cases have been won by State College criminal defense attorney Jason S. Dunkle, review some success stories. Click here for success stories.