Alcohol and the Law: Minor in Possession (MIP) and Fake ID
TIP SHEET: ALCOHOL: MIP & FAKE ID
If you are under 21 and caught drinking, you can be cited for misdemeanor minor in possession of alcohol (California Business and Professions Code Section 25662).
If you are under 21, have a fake ID, and use it to procure alcohol and/or gain entry into bars and/or clubs, you can be cited for a misdemeanor false identification violation (California Business and Professions Code Section 25661).
What can happen if I receive an MIP or Fake ID violation?
- You can be convicted of a misdemeanor, which will appear on your criminal record.
- You can lose your driver’s license for one year (regardless of whether you were driving a car). Under California law (Vehicle Code Section 13202.5), when a minor is convicted of an alcohol-related crime (such as the purchase, possession or consumption of alcohol, furnishing alcohol to a minor, or possessing an open container of alcohol in public), the minor’s driver’s license may be suspended for one year. Even if you appear in court, and the judge or DA offers to reduce your charge to an infraction, and you are only required to pay a fine for this violation, you are still pleading guilty. In this context, a “no contest” plea is exactly the same as a guilty plea. The court sends this conviction information to the DMV, which then automatically suspends your license for one year. Keep in mind that a license suspension is likely to increase your auto insurance premiums once you are eligible to drive again.
- If you are driving a car, you can be charged with a DUI (driving under the influence) if your blood alcohol content is .05 percent or higher, and you can have your license suspended for a year if there’s any trace of alcohol in your body (even just .01 percent blood alcohol content).
If you are caught drinking in public, you can be cited for an Open Container violation (California Business and Professions Code Section 25620), in addition to an MIP.
THE IMPACT OF A CONVICTION
A conviction for MIP or fake ID will appear – and remain – on your criminal record. Consider that many gra duate school applications ask whether you have been convicted of a crime, and that a criminal record can impact your ability to become a doctor, lawyer, credentialed teacher, accountant, or licensed real estate professional. In California, under Penal Code Section 1203.4, you do have the ability to later request a dismissal of a misdemeanor conviction (see the California Courts Self-Help Web site on this topic: http://www.courtinfo.ca.gov/selfhelp/other/crimlawclean.htm). However, even if it is later dismissed, you must still disclose it to government employers or licensing agencies, and the conviction still appears on your record as “dismissed” – so it can still be found by anyone with access to court or criminal records.
I received an MIP or Fake ID violation. What should I do?
There are three approaches you can take to contest the violation and attempt to avoid, or reduce the impact of, a criminal conviction:
1. With the assistance of a private criminal attorney
- A good private attorney will work diligently with you on your case – be aware that not all lawyers are the same, so you should be thoughtful in choosing one. You may receive mailed solicitations from attorneys who got your address from a public filing of charges against you – avoid hiring them. Call the Alameda County Lawyer Referral Service (510-302-2222) for referrals to attorneys with the appropriate knowledge and experience to help you with your charge. Student Legal Services can also provide referrals to private attorneys. Before hiring a private attorney, it is a good idea to meet with more than one, to ask several questions about how your case will be handled and what results to expect, and to verify an attorney’s good standing with the California State Bar (go to http://members.calbar.ca.gov/search/member.aspx).
Once you have found an attorney, s/he will guide you through the rest of the steps, which are described in more detail below. For a misdemeanor offense, a private attorney can appear in court on your behalf, so you may not need to go to court at all.
2. With the assistance of a Public Defender
- If you are charged with a misdemeanor, you have the right to free legal counsel if you qualify under the income guidelines of the local Public Defender. Contact the Alameda County Public Defender’s Office (510-268-7400) to find out when they have intake hours. You will be interviewed to determine whether you qualify.
- Even if you qualify for a Public Defender, at your first court appearance (the “arraignment”), no Public Defender will be in court. You should show up in court before your deadline, plead not guilty to the charge, and advise the judge that you will be consulting with a Public Defender. A date will be set for your next appearance, which is called a pre-trial conference. This will be your first definite opportunity at court to meet with a Public Defender in person (the Public Defender who interviews you for eligibility is unlikely to be the one assigned to your case).
- After the arraignment and before the pre-trial conference, it is a good idea to make an appointment with the Public Defender’s Office to provide them with useful information for your file. Examples of this information include: your current Berkeley transcript, personal reference letters (these should provide the name, address, phone number and profession of the reference writer, an explanation of how they know you, and a statement that they are aware of the charge(s) against you and consider the charges to be out of character and inconsistent with your past behavior), documentation of any alcohol/substance abuse counseling you have attended related to the charge, and evidence of recent community involvement or public service. Although you will not know ahead of time which Public Defender will assist you at the pre-trial conference, these items can be placed in your file in advance. You should also bring copies with you to the pre-trial conference, where the Public Defender will try to negotiate a resolution of your case.
- If possible before the pre-trial conference, it is also a good idea to review the police report with a Public Defender to identify any errors or inaccuracies in the report. The police report will typically not be available until after you make your first appearance at the arraignment.
3. On your own [Note: It is not recommended that you attempt to resolve a misdemeanor case without legal counsel.]
- Immediately check your citation to find out what you’ve been charged with, and to determine your appearance date. You must go to the court that is assigned to you before the date indicated. You may receive a mailed notice from the court indicating a specific date for appearance – but if you don’t, it is still your responsibility to call the court to find out when you need to appear: the Alameda County Traffic Division phone number is (510) 627-4701, and the Criminal Division number is (510) 627-4702. It can take many weeks for your citation to get added to the system, so continue to call even if the clerk tells you that your name and citation are not in the court records.
- Your initial appearance in court is called the “arraignment.” In Alameda County, many infraction and misdemeanor citations are processed by the Traffic Division (currently Department 102 at the Wiley Manuel Courthouse). In the Traffic Division, no District Attorney or Public Defender will be present, and the court typically attempts to resolve citations at the arraignment. If you are charged with a misdemeanor, you have the right to a Public Defender if you qualify financially (see above). Thus, you have the right to plead not guilty, request a Public Defender, and ask that the case be transferred to the Misdemeanor courtroom. You may need to be persistent in making these requests – just explain to the judge that a misdemeanor is a serious charge and you really need to consult with counsel. Please note: although it might seem attractive to plead “no contest” to a reduced infraction charge and only pay a fine, you will still have a conviction and will lose your license for a year, which will increase your car insurance premiums.
If your arraignment occurs in the Misdemeanor Courtroom (currently Department 107 at the Wiley Manuel Courthouse), a District Attorney will be present but a Public Defender most likely will not. Tell the judge that you are representing yourself, that you would like a copy of the police report, and request a later arraignment. Once you have reviewed the police report for inaccuracies and gathered the character documents described in the “Public
Defender” section above, you can attempt to discuss your case with the District Attorney at the later arraignment. You should request a dismissal or other resolution of your case that does not result in a conviction. Alternate resolution, such as “diversion,” “deferred prosecution,” or “deferred entry of judgment” will enable you to have the charge dismissed if you fulfill certain conditions (such as public service and/or alcohol counseling), and a conviction will not appear on your record. If available, this is an excellent option, but the District Attorney will not always consider it.
- Remember that anything you say to the District Attorney can be used against you. It is a good idea to review any offer made by the DA with your own attorney (you can ask the DA for a continuance so that you can discuss the offer with counsel), but you can opt to accept an offer from the DA at the arraignment, which means no further appearances are likely to be required. If your attempts to resolve your case with the DA are unsuccessful, you should ask for the case to be called again and request a further arraignment date so that you can seek the assistance of a Public Defender (see “Public Defender” section above).
- If you are a currently registered student, be sure to consult with Student Legal Services before making an appearance in court on your own.
Are there additional consequences with the University?
Possibly. Cal students who receive alcohol citations from the UCPD, the Berkeley Police Department, or the California Department of Alcoholic Beverage Control may be subject to additional sanctions for violating the Code of Student Conduct, depending upon where the citation was issued. In most cases, these agencies will notify the Center for Student Conduct and Community Standards if a student has committed an alcohol-related violation in the general area of campus. In a student conduct proceeding, you have a right to consult with the Student Advocate’s Office (204 Eshleman Hall, 510-642-6912), as well as private legal counsel, for assistance in your student conduct case. As with a misdemeanor case, it is advisable to seek assistance in a conduct case.
The information in this article is general in nature. For questions about related issues, consult with an attorney.
Currently registered UC Berkeley students can call Student Legal Services for an appointment at (510) 642-3916