Minor in Possession of Alcohol in Massachusetts Under G.L. c. 138, § 34C

A person under 21 who holds a can of beer at a party, carries a bottle of vodka in a backpack, or drives with a case of beer in the car can face a charge of possessing alcohol under G.L. c. 138, § 34C. Many people call the charge minor in possession, or MIP. The statute applies to every person under 21, including college students who are 18, 19, or 20 years old.

Minor in possession is a misdemeanor punishable only by a fine. A judge can fine a person convicted of a first offense up to $50, and a person convicted of a second or later offense up to $150. The statute does not allow a jail sentence. The court must report a conviction to the Registry of Motor Vehicles (“RMV”). The RMV must then suspend the person’s driver’s license for 90 days. G.L. c. 138, § 34C.

The police either arrest the person or apply for a criminal complaint. A person who is not arrested ordinarily receives a clerk-magistrate hearing before any complaint issues. G.L. c. 218, § 35A. A clerk-magistrate’s denial of the application prevents a criminal complaint and an arraignment from that application.

This page explains what the Commonwealth must prove, the exceptions in the statute, how a minor in possession case begins and ends, the license suspension, the criminal record rules, and the rules for a person under 18. The page also covers the charges that police can bring together with minor in possession and the school disciplinary case a college student can face. Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He represents students and young adults accused of minor in possession at clerk-magistrate hearings and in the District Court and the Boston Municipal Court.

What the Commonwealth Must Prove in a Minor in Possession Case

The Commonwealth must prove two elements beyond a reasonable doubt. The first element is that the defendant was under 21. The second element is that the defendant knowingly possessed alcohol, knowingly transported alcohol, or knowingly carried alcohol on the defendant’s person. G.L. c. 138, § 34C. The statute covers beer, wine, and liquor, whether the container is open or sealed.

A person possesses alcohol by holding it, by carrying it, or by keeping it in a place the person controls, such as the person’s backpack, car, or room. A person who is not holding the alcohol possesses it only if the person knows the alcohol is there and has the ability and the intention to control it. Commonwealth v. Brzezinski, 405 Mass. 401, 409. A driver who knowingly drives with alcohol anywhere in the car transports the alcohol, including alcohol in the trunk.

Standing near alcohol at a party is different from possessing it. The Supreme Judicial Court has held that a person’s presence in a place where contraband is found does not prove possession by itself. The Commonwealth needs other evidence that connects the person to the contraband. Commonwealth v. Brzezinski, 405 Mass. 401, 409 to 410. A guest in a kitchen full of open cans at a party does not possess every can in the kitchen.

The Commonwealth usually proves the defendant’s age with a driver’s license, a school identification card, or the defendant’s own answer to an officer’s question. The Commonwealth can use a person’s statement to the police about the person’s age as evidence at the hearing and at trial. The firm’s page on the right to remain silent explains when a person can decline to answer police questions.

The Exceptions for a Parent or Guardian and for Work

The statute does not apply to a person under 21 who is accompanied by a parent or legal guardian. G.L. c. 138, § 34C. A person under 21 who drinks a glass of wine at a family dinner with a parent at the table does not commit minor in possession. The exception requires the person’s own parent or legal guardian. Another relative, a friend’s parent, or an older friend who is over 21 does not satisfy the exception.

The furnishing statute contains a related exception for parents and grandparents. A parent does not violate G.L. c. 138, § 34 by giving alcohol to the parent’s own child in the parent’s own home. Commonwealth v. Parent, 465 Mass. 395, 410.

The statute also does not apply to a person between 18 and 21 who possesses, transports, or carries alcohol in the course of the person’s employment. G.L. c. 138, § 34C. A 19-year-old server who carries drinks to tables, or a 20-year-old store clerk who stocks beer, does not commit minor in possession at work. A licensed restaurant, bar, or store may employ a person 18 or older to handle and sell alcohol. G.L. c. 138, § 34. The employment exception covers only a person 18 or older, and only while the person is working.

Calling for Medical Help After Drinking Too Much Alcohol

A person under 21 who calls for help in good faith for a friend who needs medical care after drinking too much alcohol cannot be charged or prosecuted for minor in possession when the police learned about the alcohol because of the call. G.L. c. 138, § 34E. The same protection applies to the friend who needed the care, whether the friend made the call or someone else called. The protection also covers a charge of buying alcohol under 21 under § 34A and a charge of furnishing alcohol under § 34.

The protection applies only to charges under §§ 34, 34A, and 34C. The police can still charge a separate offense, such as a fake ID charge under G.L. c. 90, § 24B, an assault, or operating under the influence. The police can also bring a minor in possession charge based on evidence the police learned another way, such as by seeing the person drinking before anyone called for help.

How a Minor in Possession Case Begins

A police officer can arrest a person for minor in possession without a warrant. G.L. c. 138, § 34C. A person who is arrested faces arraignment on a criminal complaint in the District Court or the Boston Municipal Court.

The police can instead apply for a criminal complaint. City police officers, campus police officers, and state troopers can each apply for a complaint. A person who is not under arrest for a misdemeanor such as minor in possession ordinarily receives notice and a clerk-magistrate hearing before the court issues any complaint. G.L. c. 218, § 35A.

A clerk-magistrate hearing is a private proceeding that takes place before any criminal case exists. A police prosecutor usually presents the police report. The person, with counsel, can answer the report with documents and an explanation. The clerk-magistrate decides whether the application shows probable cause and whether to issue a complaint. A clerk-magistrate may decline to issue a complaint even when the application shows probable cause, as long as the district attorney’s office has not told the clerk-magistrate that it intends to prosecute. Victory Distributors, Inc. v. Ayer Div. of the Dist. Court Dep’t, 435 Mass. 136, 142 to 143.

Counsel answers the police report with documents the clerk-magistrate can rely on, such as school enrollment records, employment records, and a certificate showing that the person completed an alcohol education program before anyone ordered it. A clerk-magistrate may also hold the application open for a set period. In Attorney Serpa’s experience, the clerk-magistrate ordinarily does not issue a complaint when the person commits no new offense while the clerk-magistrate holds the application open.

A clerk-magistrate’s denial of the application prevents a criminal complaint and an arraignment from that application. A police report, a school disciplinary record, or an RMV record can still exist after a denial.

The 90-Day Driver’s License Suspension

The RMV must suspend the driver’s license of a person convicted of minor in possession for 90 days. The statute requires the court to report the conviction to the RMV at once. G.L. c. 138, § 34C. The RMV imposes the suspension even when the person was not driving and the alcohol had nothing to do with a car.

A judge’s guilty finding is a conviction. A continuance without a finding is not a conviction under the ordinary Massachusetts definition. Counsel should still confirm how the RMV will treat a proposed plea or admission before the person accepts it.

The RMV may act against the right of a nonresident to operate in Massachusetts even though another state issued the license. What the home state does after a Massachusetts suspension depends on that state’s law. The firm’s page on out-of-state licenses after a Massachusetts RMV suspension explains how home states respond.

The RMV imposes longer suspensions for two related offenses. A person under 21 convicted of buying or trying to buy alcohol, or of misrepresenting age to buy alcohol, faces a $300 fine and a 180-day suspension. G.L. c. 138, § 34A. A driver under 21 arrested for operating under the influence with a blood alcohol percentage of .02 or more faces a separate RMV suspension of 180 days, or one year for a driver under 18. G.L. c. 90, § 24P. The firm’s page on OUI license suspensions explains the under-21 rules.

Minor in Possession and the CORI Record

An employer, landlord, or licensing board that obtains a Criminal Offender Record Information (CORI) report from the Department of Criminal Justice Information Services does not see a minor in possession charge or conviction. The CORI statute excludes every offense that is not punishable by incarceration. G.L. c. 6, § 167. Minor in possession is punishable only by a fine, for a first offense and for a later offense. The person’s own CORI report lists the charge, unless the record has been sealed or expunged.

The court still keeps its own record of a criminal complaint and an arraignment for minor in possession unless a judge orders the record sealed. A college, a graduate school, a bar application, or a licensing application may also ask about any arrest, citation, or charge, including one that ended at a clerk-magistrate hearing.

The Commissioner of Probation and the court clerk must seal the record of a not guilty finding unless the defendant asks the Commissioner in writing not to seal it. A person whose case was dismissed can ask a judge to seal the record. G.L. c. 276, § 100C.

A Person Under 18 Charged With Possessing Alcohol

The Juvenile Court cannot hear a first minor in possession charge against a child between 12 and 18. The juvenile statute excludes from delinquency a first offense of a misdemeanor punishable by a fine, by no more than six months in jail or the house of correction, or by both. G.L. c. 119, § 52. Minor in possession is punishable only by a fine. The Supreme Judicial Court has held that the Juvenile Court has no jurisdiction over a first offense of that kind and must dismiss the complaint. Lazlo L. v. Commonwealth, 482 Mass. 325.

The juvenile statutes also bar an ordinary criminal case in an adult court for an offense a person committed before turning 18, except as those statutes provide. G.L. c. 119, § 74.

The Juvenile Court can hear a later minor in possession charge against a child who has committed an earlier offense. The Commonwealth must first prove the earlier offense beyond a reasonable doubt. Wallace W. v. Commonwealth, 482 Mass. 789. The firm’s page on juvenile delinquency defense explains the first-offense rule for minor misdemeanors. A high school can still discipline a student under the school’s own rules.

Charges Police Bring Together With Minor in Possession

The police can also apply for any of the following charges when the charge arises from the same incident.

• Fake ID charges under G.L. c. 138, §§ 34A and 34B and G.L. c. 90, § 24B, including buying or trying to buy alcohol with a false identification card.
• Furnishing alcohol to a person under 21 under G.L. c. 138, § 34, which applies to a party host who is also under 21.
• Disorderly conduct under G.L. c. 272, § 53, which can arise from a loud party or a confrontation with the police.
• Possession of an open container of alcohol in the passenger area of a car under G.L. c. 90, § 24I, which is punishable by a fine of $100 to $500.
• Operating under the influence under G.L. c. 90, § 24. The RMV imposes a separate suspension on a driver under 21 with a blood alcohol percentage of .02 or more.
• Hazing under G.L. c. 269, § 17, when members of a student organization force new members to drink.

Defending a Minor in Possession Charge

Counsel first examines the evidence on each element. The questions include whether the person knowingly possessed the alcohol or only stood near alcohol that belonged to someone else, how the police learned the person’s age, and whether a parent or legal guardian was present.

Counsel next examines how the police obtained the evidence. The Commonwealth must justify a police entry into a home, an apartment, or a dorm room without a warrant under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights. A judge can suppress evidence the police obtained through an unlawful stop, entry, or search. The firm’s page on illegal searches and motions to suppress explains those rules. The page on criminal charges between roommates explains searches of dorm rooms by campus police and residence life staff.

A minor in possession case can end without a conviction. The clerk-magistrate can deny the complaint application. After arraignment, the district attorney’s office can enter a nolle prosequi, which ends the prosecution of the charge. A judge can dismiss the case, continue the case without a finding under G.L. c. 278, § 18, or place the defendant on pretrial probation. A judge or jury can find the defendant not guilty. The firm’s page on how to keep a criminal charge off your record compares those outcomes.

College Discipline, Parents, and International Students

A college can discipline a student for an alcohol violation under the college’s own code of conduct, whatever happens in the criminal case. The college holds its own hearing, applies its own standard, and can impose sanctions such as disciplinary probation, loss of campus housing, or suspension. The firm’s page on college and university student criminal defense explains how a student can coordinate the court case with the school proceeding.

Federal law permits a college to tell the parents of a student under 21 when the college determines that the student committed a disciplinary violation involving alcohol. 20 U.S.C. § 1232g(i).

Federal immigration law imposes its own consequences on a conviction or a continuance without a finding. A noncitizen charged with minor in possession should have an immigration lawyer review any proposed plea or admission before accepting it. An immigration officer can also ask about an arrest or a citation at a visa or green card interview, even when the case ended without a conviction.

Speaking With Attorney Serpa

A student who receives a notice of a clerk-magistrate hearing for minor in possession should speak with a lawyer before the hearing, and before answering questions from the police or the school. Counsel can gather documents for the hearing and address the license, school, and immigration questions before the person makes any decision. For a free and confidential consultation, call 617.936.0201. The Boston office is at 20 Park Plaza, Suite 400A. The Quincy office is at 500 Victory Road, Suite 400A.

Frequently Asked Questions

Related Serpa Law Office Resources

• Furnishing Alcohol to a Minor in Massachusetts Under G.L. c. 138, § 34
• Hazing Charges in Massachusetts Under G.L. c. 269, § 17
• Massachusetts Fake ID Lawyer for Boston and Cambridge
• Massachusetts Fake ID FAQs for Students
• College and University Student Criminal Defense Lawyer: Boston and Cambridge
• Massachusetts Student Criminal Defense FAQs
• Massachusetts Clerk-Magistrate Hearing Lawyer
• What to Do When Your Child Is Arrested or Charged in Massachusetts: Juvenile Delinquency and Youthful Offender Defense
• Who Sees a Massachusetts Criminal Record
• How to Keep a Criminal Charge Off Your Record in Massachusetts
• Massachusetts OUI License Suspensions and Reinstatement
• Disorderly Conduct and Resisting Arrest in Massachusetts
• Massachusetts Criminal Charges Defense