5.29Minor Purchasing, Consuming, or Possessing Alcohol, or Having Any Bodily Alcohol Content/Furnishing Fraudulent Identification to a Minor, or Minor Using Fraudulent Identification to Purchase Alcoholic Liquor
“A minor shall not purchase or attempt to purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, possess or attempt to possess alcoholic liquor, or have any bodily alcohol content, except as provided in [MCL 436.1703].” 13
“An individual who furnishes fraudulent identification to a minor or, notwithstanding [MCL 436.1703(1)], a minor who uses fraudulent identification to purchase alcoholic liquor, is guilty of a misdemeanor[.]” MCL 436.1703(2).
A minor who violates MCL 436.1703(1) is responsible for a state civil infraction or guilty of a misdemeanor as follows:
•First Violation:
•“[T]he minor is responsible for a state civil infraction and shall be fined not more than $100.00.” MCL 436.1703(1)(a).
•Additionally, the “court may order a minor under [MCL 436.1703(1)(a)] to participate in substance use disorder services as defined in . . . MCL 333.6230, and designated by the administrator of the office of substance abuse services, and may order the minor to perform community service and to undergo substance abuse screening and assessment at his or her own expense as described in [MCL 436.1703(5)].” MCL 436.1703(1)(a).
•“A minor may be found responsible or admit responsibility only once under [MCL 436.1703(1)(a)].” MCL 436.1703(1)(a).
•Violation After One Prior Judgment:
•The minor is guilty of a misdemeanor punishable by:
•imprisonment for not more than 30 days if the court finds that the minor violated an order of probation, failed to successfully complete any treatment, screening, or community service ordered by the court or failed to pay any fine for that conviction or juvenile adjudication; or
•by a fine of not more than $200; or
•both. MCL 436.1703(1)(b).
•Additionally, the “court may order a minor under [MCL 436.1703(1)(a)] to participate in substance use disorder services as defined in . . . MCL 333.6230, and designated by the administrator of the office of substance abuse services, and may order the minor to perform community service and to undergo substance abuse screening and assessment at his or her own expense as described in [MCL 436.1703(5)].” MCL 436.1703(1)(b).
•Violation After Two or More Prior Judgments:
•The minor is guilty of a misdemeanor punishable by:
•imprisonment for not more than 60 days, if the court finds that the minor violated an order of probation, failed to successfully complete any treatment, screening, or community service ordered by the court, or failed to pay any fine for that conviction or juvenile adjudication; or
•by a fine of not more than $500; or
•both. MCL 436.1703(1)(c).
•Additionally, the “court may order a minor under [MCL 436.1703(1)(a)] to participate in substance use disorder services as defined in . . . MCL 333.6230, and designated by the administrator of the office of substance abuse services, and may order the minor to perform community service and to undergo substance abuse screening and assessment at his or her own expense as described in [MCL 436.1703(5)].” MCL 436.1703(1)(c).
A violation of MCL 436.1703(2) is a misdemeanor punishable by:
•imprisonment for not more than 93 days; or
•fine of not more than $100; or
•both. MCL 436.1703(2).
C.Issues
“In a prosecution for the violation of [MCL 436.1703(1)] concerning a minor having any bodily alcohol content, it is an affirmative defense that the minor consumed the alcoholic liquor in a venue or location where that consumption is legal.” MCL 436.1703(16).
•Custody
An officer or an inspector of the liquor control commission who witnesses a violation of MCL 436.1703 “may stop and detain a person and obtain satisfactory identification, seize illegally possessed alcoholic liquor, and issue an appearance ticket under . . . MCL 764.9c.”14 MCL 436.1705.
•Deferred Proceedings
MCL 436.1703(3) allows the court to defer proceedings and impose probation, without a judgment of guilt or adjudication of responsibility, for individuals who consent to the deferral and plead guilty to a misdemeanor violation of MCL 436.1703(1)(b) (criminal proceedings), or offer a plea of admission (delinquency proceedings) for a misdemeanor violation of MCL 436.1703(1)(b). “If an individual fulfills the terms and conditions of probation, the court shall discharge the individual and dismiss the proceedings.” MCL 436.1703(3). “An individual may obtain only 1 discharge and dismissal under [MCL 436.1703(3)].” Id. MCL 436.1703(3) further provides:
“The court shall maintain a nonpublic record of the matter while proceedings are deferred and the individual is on probation and if there is a discharge and dismissal under [MCL 436.1703(3)]. The secretary of state shall retain a nonpublic record of a plea and of the discharge and dismissal under [MCL 436.1703(3)]. These records shall be furnished to any of the following:
(a) To a court, prosecutor, or police agency on request for the purpose of determining if an individual has already utilized [MCL 436.1703(3)].
(b) To the department of corrections, a prosecutor, or a law enforcement agency, on the department’s, a prosecutor’s, or a law enforcement agency’s request, subject to all of the following conditions:
(i) At the time of the request, the individual is an employee of the department of corrections, the prosecutor, or the law enforcement agency, or an applicant for employment with the department of corrections, the prosecutor, or the law enforcement agency.
(ii) The record is used by the department of corrections, the prosecutor, or the law enforcement agency only to determine whether an employee has violated his or her conditions of employment or whether an applicant meets criteria for employment.”
However, even in cases of deferral, MCL 257.732(5) requires that “[t]he clerk of the court shall . . . forward an abstract of the court record to the secretary of state if an individual has pled guilty to, or offered a plea of admission in a juvenile proceeding for, a violation of . . . MCL 436.1703, or a local ordinance substantially corresponding to [MCL 436.1703], and has had further proceedings deferred under that section. If the individual is sentenced to a term of probation and terms and conditions of probation are fulfilled and the court discharges the individual and dismisses the proceedings, the court shall also report the dismissal to the secretary of state.”
•Preliminary Chemical Breath Analysis
“A peace officer who has reasonable cause to believe a minor has consumed alcoholic liquor or has any bodily alcohol content may request that individual to submit to a preliminary chemical breath analysis.” MCL 436.1703(6). “If a minor does not consent to a preliminary chemical breath analysis, the analysis shall not be administered without a court order, but a peace officer may seek to obtain a court order.” Id. “The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a state civil infraction proceeding or criminal prosecution to determine if the minor has consumed or possessed alcoholic liquor or had any bodily alcohol content.” Id.
•Required Notice When Offender is a Juvenile
If the person who allegedly violated MCL 436.1703(1) is less than 18 years old and unemancipated, the law enforcement agency must notify the minor’s parent(s), guardian, or custodian if the name of the parent, guardian, or custodian is reasonably ascertainable. MCL 436.1703(7). This notice must be given within 48 hours after the agency determines that the person is less than 18 years old and umenacipated, and may be by any means reasonably calculated to give prompt actual notice of the offense, including notice in person, by telephone, or by first-class mail. Id. If the minor is less than 17 years old and incarcerated for a violation of MCL 436.1703(1), the minor’s parents or legal guardian must be notified immediately. MCL 436.1703(7).
•Statutory Exemptions
MCL 436.1703 includes several provisions setting forth individuals who are not considered to be in violation of MCL 436.1703(1):
•“A minor who has consumed alcoholic liquor and who voluntarily presents himself or herself to a health facility or agency[15] for treatment or for observation including, but not limited to, medical examination and treatment for any condition arising from a violation of sections . . .
•“A minor who accompanies an individual who . . . [h]as consumed alcoholic liquor[ and who] [v]oluntarily presents himself or herself to a health facility or agency[16] for treatment or for observation including, but not limited to, medical examination and treatment for any condition arising from a violation of . . . MCL 750.520b to [MCL 750.520g], committed against a minor.” MCL 436.1703(9)(b).
•“A minor who initiates contact with a peace officer or emergency medical services personnel for the purpose of obtaining medical assistance for a legitimate health care concern.” MCL 436.1703(9)(c).
•“The consumption of alcoholic liquor by a minor who is enrolled in a course offered by an accredited postsecondary educational institution in an academic building of the institution under the supervision of a faculty member is not prohibited by this act if the purpose of the consumption is solely educational and is a requirement of the course.” MCL 436.1703(12).
•“The consumption by a minor of sacramental wine in connection with religious services at a church, synagogue, or temple is not prohibited by this act.” MCL 436.1703(13).
•Minors involved in undercover operations. MCL 436.1703(14).
Further, MCL 436.1703 “does not prohibit a minor from possessing alcoholic liquor during regular working hours and in the course of his or her employment if employed by a person licensed by this act, by the commission, or by an agent of the commission, if the alcoholic liquor is not possessed for his or her personal consumption.” MCL 436.1703(8).
“[A] person who is an operator or occupant shall not transport or possess alcoholic liquor in a container that is open or uncapped or upon which the seal is broken within the passenger area of a vehicle upon a highway, or within the passenger area of a moving vehicle in any place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, in [Michigan].” MCL 257.624a(1).
However, “[a] person may transport or possess alcoholic liquor in a container that is open or uncapped or upon which the seal is broken within the passenger area of a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles in [Michigan], if the vehicle does not have a trunk or compartment separate from the passenger area, and the container is in a locked glove compartment, behind the last upright seat, or in an area not normally occupied by the operator or a passenger.” MCL 257.624a(2).
Further, “[e]xcept as otherwise provided in MCL 257.624a, unless prohibited by local ordinance, [MCL 257.624a(1)-(2)] do not apply to a passenger in a commercial quadricycle. A passenger in a commercial quadricycle shall not transport or possess alcoholic liquor other than beer, wine, spirits, or a mixed spirits drink.” MCL 257.624a(5).
MCL 257.901(2) provides for:
•imprisonment for not more than 90 days; or
•fine of not more than $100; or
•both.
“As part of the sentence, the person may be ordered to perform community service and undergo substance abuse screening and assessment at his or her own expense as described in [MCL 436.1703(1)].” MCL 257.624a(3).
Only applicable sanctions are listed below; accordingly, if a particular sanction is omitted from this section, it is not applicable to this offense. The Offense Code Index for Traffic Violations published by the secretary of state and sourced from the Michigan Department of State Court Manual includes a table detailing traffic offenses and applicable sanctions. See Section 1.41 for more information on abstracting procedures.
•Two points. See MCL 257.320a(1)(s); MCL 257.732(1)(a). See Section 1.42 for more information on points.
•License denial mandatory for unlicensed violation; license suspension for 90 days required for prior conviction; license suspension for one year required for two or more prior convictions. See MCL 257.303(1)(j); MCL 257.319(7). A restricted license may be issued. See MCL 257.319(7). See Section 1.43 for more information on license denial and Section 1.45 for more information on license suspension.
•Guilty/Nolo Contendere Pleas
“A court shall not accept a plea of guilty or nolo contendere for a violation of [MCL 257.624a] from a person charged solely with a violation of [MCL 257.625(6)17].” MCL 257.624a(3).
•Definition of Vehicle
A personal electric scooter qualifies as a vehicle under MCL 257.624a because the scooter is “a device upon which a person [is] transported upon a highway.” People v Lyon, 310 Mich App 515, 516-517, 520 (2015) (the defendant was driving the scooter “along the paved portion of the ‘curb lane’” and “weaving into the traffic lane” on a public highway while “holding an open can of beer[]”). The Court noted that “the definition of ‘vehicle,’ the term actually used in MCL 257.624a . . . , is much more inclusive than the definition of ‘motor vehicle[.]’” Lyon, 310 Mich App at 519. “[T]he MVC govern[s a] defendant’s conduct when he use[s a] scooter as a vehicle upon a highway[]” and thereby undertakes “the duties of a vehicle driver, which include refraining from driving . . . with an open container.” Id. at 521.
13. A juvenile who pleads guilty to or offers a plea of admission for violating MCL 436.1703(1) and who has not previously been convicted of or received a juvenile adjudication for violating MCL 436.1703(1), may have proceedings against him or her deferred. See MCL 436.1703(3). See Section 5.29(C) for more information on deferring proceedings under MCL 436.1703(3).
14. See Section 2.9(A) for a discussion of appearance tickets.
15. If the minor is under 18 years old and unemancipated, the health facility or agency must notify the minor’s parent(s), guardian, or custodian as to the nature of the treatment or observation if the name of a parent, guardian, or custodian is reasonably ascertainable. MCL 436.1703(10).
16. If the minor is under 18 years old and unemancipated, the health facility or agency must notify the minor’s parent(s), guardian, or custodian as to the nature of the treatment or observation if the name of a parent, guardian, or custodian is reasonably ascertainable. MCL 436.1703(10).
17.MCL 257.625(6) prohibits a person who is less than 21 years of age from operating a vehicle with “any bodily alcohol content.”