Ned Michie
​Attorney at law

Charged with an

Alcohol Related Offense?

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Office in Charlottesville, Virginia
​
​​(434) 296-1198

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​Representing Central Virginia Clients 
​for Over 30 Years

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​legal representation of themselves or their family members on criminal and traffic cases. 
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Other Common Alcohol-Related Offenses
(Underage Possession, Fake IDs, Providing Alcohol to Underage Person, Drinking or Drunk in Public, Drinking While Driving)

The outcome of all criminal cases
can be greatly affected by:

Whether You Decide to Hire an Attorney
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20 COMMON ISSUES and DECISIONS 
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Underage Possession of Alcohol

​Va. Code § 4.1-305 states in part (and subject to exceptions) that:

     "A. No person to whom an alcoholic beverage may not lawfully be sold under § 4.1-304 shall consume, purchase or possess, or attempt to consume, purchase or possess, any alcoholic beverage. . ."

     "B. No person under the age of 21 years shall use or attempt to use any (i) altered, fictitious, facsimile or simulated license to operate a motor vehicle, (ii) altered, fictitious, facsimile or simulated document, including, but not limited to a birth certificate or student identification card, or (iii) motor vehicle operator's license, birth certificate or student identification card of another person in order to establish a false identification or false age for himself to consume, purchase or attempt to consume or purchase an alcoholic beverage."

Penalties

      "C. Any person found guilty of a violation of this section shall be guilty of a Class 1 misdemeanor; and upon conviction, (i) such person shall be ordered to pay a mandatory minimum fine of $500 or ordered to perform a mandatory minimum of 50 hours of community service as a condition of probation supervision and (ii) the license to operate a motor vehicle in the Commonwealth of any such person age 18 or older shall be suspended for a period of not less than six months and not more than one year; the license to operate a motor vehicle in the Commonwealth of any juvenile shall be handled in accordance with the provisions of § 16.1-278.9. The court, in its discretion and upon a demonstration of hardship, may authorize an adult convicted of a violation of this section the use of a restricted permit to operate a motor vehicle in accordance with the provisions of subsection E of § 18.2-271.1 or when referred to a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1. . . "

First Offenders  
      The law, however, does allow the court to give first offenders special favorable treatment. The court can put a guilty defendant into an alcohol awareness class, and if the class is successfully completed and other requirements of the court are met (for example, performing community service and/or being on good behavior for a certain amount of time), the case is dismissed without a conviction. The court can also suspend or restrict the defendant's licence as part of the first offender program.

Fake ID cases

     There are a number of ways these cases can be handled by the police and prosecutor. The friendliest way -- at least on a first offense -- is probably charging the defendant with a violation of the underage possession statute described above.

​The defendant could also be charged, however, under Va. Code ​§ 46.2-347, which states as follows:

"Any underage person as specified in § 4.1-304 who knowingly uses or attempts to use a forged, deceptive or otherwise nongenuine driver's license issued by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or any foreign country or government; United States Armed Forces identification card; United States passport or foreign government visa; Virginia Department of Motor Vehicles special identification card; official identification issued by any other federal, state or foreign government agency; or official student identification card of an institution of higher education to obtain alcoholic beverages shall be guilty of a Class 3 misdemeanor, and upon conviction of a violation of this section, the court shall revoke such convicted person's driver's license or privilege to drive a motor vehicle for a period of not less than 30 days nor more than one year."

1980, c. 519, § 46.1-384.1; 1981, c. 24; 1983, c. 473; 1984, c. 780; 1985, c. 559; 1989, c. 727; 1992, c. 531; 1993, c. 866.

The defendant could also potentially be charged with a violation of ​ Va. Code § 46.2-346,
which states in part:
 
"A. No person shall:
1. Display, cause or permit to be displayed, or have in his possession any driver's license which he knows to be fictitious or to have been cancelled, revoked, suspended, or altered, or photographed for the purpose of evading the intent of this chapter;
2. Lend to, or knowingly permit the use of by one not entitled thereto, any driver's license issued to the person so lending or permitting the use thereof;
3. Display or represent as his own any driver's license not issued to him;
4. Reproduce by photograph or otherwise, any driver's license, temporary driver's permit, learner's permit, or special identification card issued by the Department with the intent to commit an illegal act;
. . . "

Another possibility is charging a defendant in a particular case with a violation of Va. Code § 18.2-204.2, which states as follows:

"A. Except as provided in subsection D of § 18.2-204.1, it shall be unlawful for any person to manufacture, advertise for sale, sell or possess any fictitious, facsimile or simulated driver's license issued by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or any foreign country or government; United States Armed Forces identification card; United States passport or foreign government visa; Virginia Department of Motor Vehicles special identification card; official identification issued by any other federal, state or foreign government agency; or official student identification card of an institution of higher education, or in any way reproduce any identification card or facsimile thereof in such a manner that it could be mistaken for a valid license or identification of any type specified in this subsection.

B. Any person manufacturing, advertising for sale, selling or reproducing such card or facsimile thereof shall be guilty of a Class 1 misdemeanor.

C. Any person possessing any such card or facsimile thereof shall be guilty of a Class 2 misdemeanor.

​D. The provisions of this section shall not preclude an election to prosecute under § 18.2-172, except to prosecute for forgery or uttering of such license or identification card or facsimile thereof as proof of age."
1980, c. 281; 1989, c. 705; 1992, c. 531; 2006, cc. 445, 484; 2011, c. 401.

Depending on the facts of the case, a defendant could even potentially be charged with the much more serious forgery type charges.

Purchasing Alcohol for an Underage Person

Va. Code § 4.1-306 states, in most pertinent part, as follows:

"A. Any person who purchases alcoholic beverages for another person, and at the time of such purchase knows or has reason to believe that the person for whom the alcoholic beverage was purchased was (i) interdicted, or (ii) intoxicated, is guilty of a Class 1 misdemeanor.
                                                                        .  .  . 

B. In addition to any other penalty authorized by law, any person found guilty of a violation of this section shall have his license to operate a motor vehicle suspended for a period of not more than one year. The court, in its discretion, may authorize any person convicted of a violation of this section the use of a restricted permit to operate a motor vehicle in accordance with the provisions of subsection D of § 16.1-278.9 or subsection E of § 18.2-271.1."

Drinking in Public and Being Drunk in Public

   Va. Code § 4.1-308 :
   "A. If any person takes a drink of alcoholic beverages or offers a drink thereof to another, whether accepted or not, at or in any public place, he is guilty of a Class 4 misdemeanor. . . ."

   Va. Code ​§ 18.2-388:
   "If any person profanely curses or swears or is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a Class 4 misdemeanor. . . ."
​
    Note that the police are NOT required to give a suspected intoxicated person a breath or blood test, nor does the prosecutor need one to get a conviction.

"In Public"
     It is important to realize that Virginia courts have decided that "in public," for the purposes of the public intoxication statute, can include being fully on private property but within public view -- for example, on the front porch of your own house, if visible from the street. Crislip v. Commonwealth, 37 Va. App. 66, 554 S.E.2d 96 (2001).
     On the other hand, the phrase "in any public place" used in the drinking-in-public statute, has its own definition. 

Penalties
    As 4th class misdemeanors, the punishment for a conviction will just be a small fine plus court costs, but obviously it is better to not have these convictions on your record if it can be avoided. Note also that drinking on public school grounds is a class 2 misdemeanor.  See Va. Code ​§ 4.1-309.  

Drinking While Driving

 Va. Code § 18.2-323.1 states as follows:

"A. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.

B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.

For the purposes of this section:
"Open container" means any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container.
"Passenger area" means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. This term shall not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons.

C. A violation of this section is punishable as a Class 4 misdemeanor."

1989, c. 343; 2002, c. 890.