Work to see that the charge gets dismissed, amended, or reduced, ultimately with no conviction and no probation or life-disrupting court requirement.
What we try to do: We negotiate with the Commonwealth Attorney and the police to see if they will reduce the charge to open container under 4.1-308, a class 4 misdemeanor, and not suspend the driver’s license and offer community service in the 24-hour-or-less range that is to be done outside the court provided it is done from a non-profit source and on their letterhead; and then within 90 days have the charge dismissed with no finding of guilt ever being made. This can be done in many situations if there is no driving involved and otherwise not aggravated and the offender was otherwise cooperative with the officer, but of course not guaranteed in every case.
Our firm feels that the code section as written is harsh and hard to complete for a young person who is likely in college or high school and has enough on their plate already; that is why we work hard to reduce it.
4.1-305 “No person under the age of 21 in Virginia shall consume, purchase or possess or attempt to do the same of any alcoholic beverage”. This is a class 1 criminal misdemeanor.
Consequences: If found guilty of this section you shall be guilty of a class 1 misdemeanor (even though an age status offense) and ordered to pay a $500 fine or perform a mandatory minimum of 50 hours community service as a condition of probation and have your license suspended for no less than 6 months and up to a year (creating a major hardship if working). If a juvenile, the authorities can restrict your ability to get a license for the same period of time. Losing a license sets up the young person to incur future driving violations which can quickly spiral.
Deferral without Finding: This is only available for those over 18 that are first offenders but they must accomplish the above requirements to have the charge dismissed, and any shortfall of the above requirements will result in a conviction.
According to Hale v. Commonwealth of Virginia – where the evidence proved that the defendant was under 21 years of age and there was an odor of alcohol about his person and a breath test (Alcosensor) confirmed the presence of alcohol in his body system and the defendant told the police officer that he had consumed a beer earlier – this was sufficient to sustain a conviction for underage possession of alcohol. If you are holding an alcoholic beverage and have not yet consumed it, this is also possession if it is in your dominion and control and you know that it is an alcoholic beverage.
Jiffy Lube Live procedures: The police work the parking lot at the concert venue and will approach anyone they suspect to be underage, and if they see any evidence that the person has been drinking or even holding a beverage they suspect contains alcohol, they will write the underage person a summons for court citing the above code section. This often happens when the underage person is with a larger group of people over 21 who are drinking; they are often not guilty and just around the alcohol and not possessing it but are charged anyway.