MIP in Texas and "Constructive Possession"

I was wondering if some legal experts could weigh in on a hypothetical situation. Read: No one I know is being charged with an MIP, this is merely a curiosity on my part. I did some research on the text of the law, but this seems like an issue where a thorough knowledge of case law is important to being able to answer the question, and I don’t know how to research that stuff.

Here’s the hypothetical:

A 20 year old is at a house party with friends in a residential neighborhood. The 20 year old is not and has not consumed any alcohol throughout the course of the night, but there is alcohol in nearly every room of the house and everyone around him is drinking.

For an unrelated reason, police are brought to the house and invited in voluntarily. They suspect that the 20 year old is not of age, and think he may be guilty of an MIP. Assume they see him standing around in a room where there are cups of alcohol all around, lots of people are holding them, some are sitting around, etc. The minor however is not holding any alcohol on his person. He is not sitting at a table where people are drinking.

His parents are not around nor have given him permission to drink. He hasn’t had anything to drink.

At this point, suppose the officer questions him, asks him his age and to identify himself, gives him a sobriety test, asks him to blow, whatever. He comes back 0.00. (not sure what happens in this instance at all, if this part of the hypothetical is wacky please let me know).

But the officer sees alcohol all over the house, and even though the 20 yo wasn’t holding any or particularly near any one specific situation where people were drinking, he decides to charge him with an MIP for constructive possession.

Would this be easy to fight? How likely would it be to happen in the first place? Would a police officer be likely to charge a minor in this situation with an MIP for constructive possession, and if so, how hard would it be to fight in court?

If any other details are needed, I can provide them. :slight_smile: Thank you for your help!

What is MIP?

MIP stands for Minor In Possession. It is a separate crime from an MIC (Minor in Consumption).


What the kid has going in his or her favor here is that you can’t just be tagged with constructive possession; they’ve gotta prove to the satisfaction of the jury that the circumstances added up to constructive possession beyond a reasonable doubt. What constructive possession means here, boiled down, is that there was alcohol available where the kid could exercise control over it and that the kid knew and intended to exercise control over it. It’s obvious why the doctrine exists, right - cops bust into your hotel room and you’re sitting on the other side of the room from a bunch of nuclear weapons, state secrets and crack rocks sitting on a table, and you turn out your pockets and say well I’m not in possession of any of that shit! Fuck you, buddy. But that isn’t to say that everybody who’s near a thing can be (appropriately) charged with possession at the discretion of the officer - they need to be able to show that you intended to be in control of it.

What that means is that in the situation you’ve described, it probably should be easy to fight, except for the bit where you get charged and have to hire a lawyer and actually go to trial and all that. But that’s under the situation as you’ve described it, which is why “it depends” is such a lawyerly thing to say. Keep the facts you’ve already got and add a few more, and the case could go the other way pretty easily. The jury needs to be looking for facts which demonstrate that the kid knew about the alcohol, had the ability to control the alcohol, and had the actual intent to control the alcohol. We can’t assume that every person who is standing in a room where anyone is drinking has the intent to go grab a drink. If the kid’s story is “I was there and I knew it was there, but I never intended to drink any of it,” then we have to say, OK, DA, what about it? And if there’s nothing else, there’s no case. If the kid’s holding an empty cup or a bottle opener or a drink ticket or sent some texts about getting blitzed or whatever, maybe there’s an argument to be made. But they have to have something.

Thank you very much! That was a great post.