Whether you are away at college, headed to spring break, or even in your own home, if you're under 21 years-old in Michigan, you're not allowed to “possess” alcohol.
While many states have Minor in Possession laws, commonly referred to as “MIPs,” which prohibit minors from possessing alcohol, Michigan has some of the toughest laws in the country. In Michigan, an MIP is a criminal misdemeanor and can result in extensive probation, heavy fines, loss of driving privileges, community service, counseling, and a criminal record. If a defendant has a prior MIP conviction, they could end up in jail.
In Michigan, you can be charged with an MIP under the Michigan statute, MCL 436.1703, or a local ordinance. State law may vary greatly from local ordinance, so it is very important to determine which one you are charged under. Under both state and local ordinance, a minor is anyone under 21 years of age, and “possession” includes anything from having a blood alcohol level of 0.02 or above, to having an unopened beer can in your hand.
The Preliminary Breath Test (PBT)
Because Michigan requires a reading of a 0.02 blood alcohol level be present for an MIP conviction, the Preliminary Breath Test, or PBT, is a portable breath test machine that police officers routinely scare minors into taking to prove they’ve been drinking. The problem for the officers is, unless you’re driving a vehicle, you DO NOT have to take the PBT. Under the Michigan Court of Appeals case of People v. Chowdhury, the PBT is an intrusive violation of your Constitutional Rights, and you have the right to refuse to take the test. There is no sanction for refusing to take the PBT.
Even if you consented to the PBT test, you may still have a valid defense. Under People v. Chowdhury, the burden is on the prosecutor to show your consent to the PBT test was freely and voluntarily given. In most cases, the cops force, scare, or coerce minors into giving consent. Therefore, consent was not freely or voluntarily given,
Additionally, even if the court finds that you freely and voluntarily gave your consent, the prosecutor must prove that the PBT was correctly administered. Because many officers do not understand how the test works, it is often administered incorrectly, and an experienced attorney can show that the test results are unreliable and inaccurate, and therefore should not be allowed in as evidence.
“Possession of Alcohol” Requirement
Under Michigan statute and local ordinances, the Minor in Possession charge requires that the prosecutor prove the minor had legal possession and control over the alcohol. Therefore, the mere fact that a minor may be in proximity to alcohol is not enough to prove a crime was committed. Under People v. Wolfe, the Prosecutor must show that you actually possessed the alcohol, or had a right to exercise control over the alcohol.
Legally Consuming Alcohol
Under Michigan law, a 19 or 20 year-old may raise the affirmative defense that the alcohol they are in “possession” of was consumed in Canada, where they are allowed to legally drink. Additionally, drinking alcohol during a religious ceremony may be a valid defense.
There are also common Constitutional defenses that may be applicable to your case.
Under the MIP statute, MCL 436.1703(3), a minor who has not previously been charged with an MIP can receive a deferral, which is an alternative sentence where the Judge will impose a sentence on the defendant without entering the plea as a conviction. If the defendant is able to successfully fulfill the Judge’s sentence, then the conviction is not entered on the defendant’s criminal record. If the defendant is unable to follow the sentence, the defendant can withdraw their plea and continue to trial without the plea being used against them.
The Holmes Youthful Trainee Act (HYTA)
The Holmes Youthful Trainee Act, or HYTA, is governed by MCL 762.11, and is another deferral program for people between the ages of 17 and 20. Although there are a few offenses that are not eligible for HYTA, most charges, including a second offense MIP, may be eligible for deferral under this statute. Additionally, it is possible to received HYTA status multiple times, although many judges will not grant it more than once.