Definition of Underage Possession

Under Section 562.111, Florida Statutes, it is unlawful for a person who has not attained the age of 21 to have in his or her ‘possession’ an alcoholic beverage, including beer, wine, liquor, mixed drinks, and other drinks. Possession may be ‘actual’ or ‘constructive’ in nature.

Actual possession of the beverage means that it is on the person of the accused, or within ready reach and under the minor’s control.

Where constructive possession is alleged, it is not necessary for the prosecution to prove that the minor or person under 21 was actually holding the alcoholic beverage. The prosecution need only show that the alcoholic beverage was in a place over which the (defendant) had control and that the defendant had knowledge that the beverage was within his or her presence.

Penalties for Underage Possession

In Florida, possession of an alcoholic beverage by an underage person (a minor, juvenile, or other person under 21) is generally classified as a second degree misdemeanor. The penalties for such an offense include a maximum of 60 days jail or six months of probation, and a $500 fine.

Where an underage person commits a second or subsequent offense, the incident can be charged as a first degree misdemeanor, with penalties of up to 1 year in jail or twelve months of probation, and a $1,000 fine.

Defenses to Underage Drinking

There are a number of defenses available to contest a charge of underage possession or underage drinking. Some common examples include:

  • Lack of knowledge of the alcoholic nature of the beverage possessed;
  • Inability of the prosecution to prove control over the beverage;
  • Non-alcoholic beverage;
  • Lack of knowledge that the beverage was within the accused’s presence;
  • Lack of proof of knowledge;
  • Destruction of evidence (failure to preserve the beverage);
  • Failure to read Miranda warnings (resulting in the exclusion of incriminating statements);
  • Entrapment (improper inducement to possess or consume the beverage);
  • Holding a drink for a friend, but not realizing the nature of the beverage being held;
  • Exclusion of evidence when the officer detains the accused while lacking probable cause to believe that the accused was underage;
  • Lack of a search warrant or other legal justification to enter or remain on the premises.

In many underage possession of alcohol cases, there is a genuine question as to whether the accused knew that a beverage he or she was holding in fact contained alcohol.

This frequently occurs in club or party settings where the accused is asked to hold a drink for another person. In this scenario, the accused may raise as a defense his or her lack of knowledge of the illicit nature of the substance (i.e. that it was an alcoholic beverage).

Contact an Attorney

If you have been accused of underage possession by a person under 21, you may have defenses available to contest the charge and avoid a permanent criminal record. Contact Hussein & Webber, PL for a free consultation.