Possession of a Malt Beverage Under 21 – Can The State Prove The Alcohol Level?

Usually a possession of alcohol while under 21 charge in Wake County (G.S. 18B-300), North Carolina, can be dismissed with a substance abuse assessment and recommended treatment through the 90-96 program. Although this tends to be time consuming (about 15 hours of class), it does allow for the charge to be dismissed and eventually expunged from one’s record. However, there might be an easier, albeit riskier, way to get the charge dismissed.

N.C. Gen. Stat. 18B-101(9) defines a “malt beverage” as “beer, lager, malt liquor, ale, porter, and any other brewed or fermented beverage except unfortified and fortified wine containing at least one-half percent (0.5%) and not more than 15% alcohol by volume.

A law enforcement officer cannot legally testify that he knows the ABV of a beverage just by looking at it or smelling it, or even tasting it — so how can the State prove the beverage has more than 0.5% alcohol but less than 15%? They can’t without a lab test or an admission of guilt.

You might notice that wine is not covered under the definition of a malt beverage. Many cops will correctly charge a person based on the type of beverage they suspect is in the container, but some either make a mistake or forget. Some never actually identify what is in the cup.

What if you didn’t actually drink the beverage, you were just holding it? You can still be charged with possession — even if the drink was not directly in your hands, but was within your control area (meaning you could reach it), you are deemed to have possessed it. Obviously this seems unfair because in theory you could be with your parents, they have alcohol nearby, and you could be charged. This scenario is unlikely, but has happened. It makes a good argument in court, especially if the person over 21 is willing to testify.

Does this mean you should fight your underage possession of a malt beverage charge? Maybe. It is risky and you could be looking at a conviction that can’t be expunged for five years. You do have the right to appeal for a jury trial, but that can be time consuming and expensive. If you aren’t concerned about the impact the charge will have on your college applications and future job prospects, it might be worth taking the case to trial with an experienced criminal defense attorney by your side.

If you have been charged with possession of a malt beverage under the age of 21 in Wake County, contact lawyer William Prudent at (919) 880-2124 for a free consultation on your charge.

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