How can I be charged with Underage Drinking when I was only holding a beer for someone else and no one saw me drinking?

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 someone 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.

Possession of Alcohol by Minor

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 the 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. For an example of constructive possession, picture a routine Penn State apartment party in downtown State College, people sitting around the coffee table in the living room, and the table is covered in beer cans.  The police could charge all of the people with violating section 6308 because all of them could have exercised control over the beer.  While the officers in the hypothetical situation above could file charges against everyone, the police normally would not file charges against everyone.  A police officer often exercises discretion and would only charge the people for which there was evidence of alcohol consumption.  However, I have seen situations in which someone in that scenario tells the police officer that a charge cannot be filed because the person did not touch the alcohol, and a charge was filed.

If the officer did file a charge, the officer would still need to present sufficient evidence at a summary hearing to prove the person guilty beyond a reasonable doubt.  I have been handling criminal cases in State College since 2004, and I have obtained a dismissal of the charge or not guilty verdict in many Underage Drinking cases by presenting various legal arguments.  Check out a few of my Underage Drinking Success Stories.