Possession of Alcohol by a Minor
Teen drinking is a problem. Sure. But, so is rape, murder, and robbery. Sometimes, tax payer dollars are shifted to crimes such as possession of alcohol by a minor, rather than more important matters. Because our government makes arrests for such things, my law firm defends such things. And, in case you're curious (which is why you're reading this), here's an outline as to the state of the law on possession of alcohol cases, enjoy!
As you might expect, the burden on the government to prove possession of alcohol by a minor is pretty low. The reason for this is simple: the government need not present physical evidence of the possession! Yep, you heard me. Basically, the government need only present the "word" of the police officer involved, and everyone is supposed to believe him/her and convict the minor. No real physical proof necessary. No CSI episodes devoted to these issues. That being said, the officer must still testify to certain things. First and foremost, the officer must testify that the appearance--and smell--of the illegal contraband is consistent with alcohol. A.A. v. State, 461 So.2d 165, 166 (Fla. 3d DCA 1984). The problem here, of course, is that the "odor of alcohol" can be present in a non-alcoholic beverage as well, but somehow, law enforcement olfactory verifications are trusted by our court systems. Also, should the minor admit that the liquid is, in fact, alcohol, that admission may be offered as proof.
But not everything alcohol related is illegal for a minor to possess. This may seem obvious, but it is not illegal for a minor to possess a beer bottle--so long as that bottle is empty. An example of such a case can be found in P.N. v. State, in which a minor was eventually convicted of possession of alcohol because he was caught holding a beer bottle. 976 So.2d 90 (Fla. 3rd DCA 2008). When the officer seized the bottle from the minor he noticed that the bottle did not contain alcohol, it only contained water and sand. It took an appeal to a higher court to overturn P.N.'s conviction, as the higher court correctly reasoned that without "alcohol", a beer bottle is really just a bottle--and there's nothing illegal about a minor possessing it.
So, what happens if the minor spills the "beer" before the police get a chance to examine it? That's the facts found in R.A.W. v. State, 92 So.3d 312 (Fla. 1st DCA 2012). A 15 year old had liquid spill out of a beer can onto the sand before police could take possession of the beer can. The police noted that the liquid was dark in color, and foamed up like beer would foam up, thus reasoning that it must be beer. The appeals court reluctantly affirmed the conviction, even though the officer never smelled the liquid (see A.A. v. State, above), and the officer never preserved any physical evidence (he could have kept the beer can around). The appeals court stated that “no Florida court has held that mere observation of a liquid or its foam without also smelling it is sufficient to establish it is alcoholic”, yet they affirmed the conviction because “[t]here is merit to the common sense notion, as expressed by the officer, however, that a liquid flowing from a spilled beer can is probably beer, particularly when it looks and appears to foam like beer.” Id at 314. For more details on how the court system analyzes such issues, and you might find it hard to believe that these legal issues make it all the way up to the appellate courts, feel free to take a look at my article "Looks Like Beer, But Is It Beer?".
In the case of B.B. v. State, 117 So. 3d 442 (Fla. 2d DCA 2013), B.B. was convicted of possession of alcohol by a minor (among other things). She was a passenger in a car containing a few other people, and a can of "Four Loko" was a few inches from where she was sitting in the center console. As we all know, "mere proximity" to contraband (in this case, alcohol) is not enough to prove possession. There must be independent evidence such as fingerprints, or a confession. In B.B.'s case, the conviction was overturned because the state never proved "constructive possession" of the alcohol. Furthermore, the state presented no evidence that the liquid in the Four Loko can actually contained alcohol. For more details on B.B.'s case, check out my article "More Taxpayer Funds Wasted on Poor Police Work".