How to Fight a Minor in Possession Charge

Last Updated: January 21, 2022 References

If you are underage, you are not permitted to have any alcohol on your person in the United States. When a police officer catches you drinking or under the influence, they likely will write you a citation for "minor in possession." Although typically it is a misdemeanor that doesn't result in any jail time, you still should take a minor in possession charge seriously. Not only will it remain as a smudge on your record, but you also could end up losing your driving privileges for up to a year. Since there are few defenses to a minor in possession charge, the best way to fight it typically is to hire an attorney and negotiate with the prosecutor for a deal.^{[1]
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Part 1

Part 1 of 3:

Appearing at Arraignment

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Check your citation. In most cases you won't be arrested for a minor in possession offense. The police officer will write you a citation that will indicate when you are supposed to be in court for your arraignment.^{[3]
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- If you've ever gotten a traffic ticket before, this citation will look similar. Just look for when it says you next have to be in court. That's your arraignment.
- The arraignment is the first hearing you'll have in court. The judge will read the charges against you, make sure you understand them, and ask how you plead.
- You must appear in court in person for this hearing. This may mean you have to miss school or work, so make arrangements as soon as possible.
- You typically will want to hire an attorney, but you don't need to worry about having one for the arraignment. Although you are allowed to be represented by an attorney at arraignment, it isn't strictly necessary as long as you know how to act and what to say.
2
Dress and act appropriately. Your first appearance in court is your chance to make a good first impression on the court clerk, the judge, the prosecutor, and other courtroom staff. A bad impression can be hard to overcome, particularly if you're trying to fight the charge.^{[5]
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- You don't have to wear a suit or a dress (though it won't hurt if you do), but you should look clean and presentable.
- Generally, you should treat your court appearance like a job interview. Wear conservative clothing that is neat and clean.
- Be polite to all court staff, from the security guards at the entrance to the court clerk and the judge.
- Silence your cell phone while you're in court, or leave it at home. You may want to check with the court before your arraignment to find out what items are not allowed in the courthouse. Some courts prohibit electronic devices entirely.
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3
Take a seat in the courtroom. When you find the courtroom where your arraignment is taking place, find a seat in the gallery and wait for your name to be called. The judge likely has several people appearing on the same or similar charges.^{[6]
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- Sit still and quiet, and try to avoid fidgeting or causing a distraction. The judge may call several other people before they get to you.
- If other people facing similar charges are called, it gives you a chance to get familiar with the procedure and what the judge will say to you when your name is called.
- Pay attention to the judge's interactions with others. You may see someone who is acting defiant or impolite – learn from their mistakes.
4
Treat the judge with respect. When the judge calls your name, move to the front of the courtroom. Address the judge either as "your honor," or as "sir" or "ma'am." Do not interrupt the judge when he or she is speaking to you.^{[8]
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- Speak in a loud, clear voice so the judge can hear you – don't mumble or look down. Maintain good posture rather than slumping or hunching over.
- The judge typically will ask you some questions and tell you your rights as a criminal defendant. You also likely will be given a sheet of paper that explains your rights.
- Pay attention to the judge and listen carefully. The judge will ask you if you understand your rights, and make sure you're competent to enter your plea. This is very important, so don't brush it off.
5
Enter your plea. After the judge has read the charges against you and explained the possible penalties for the charge if you are convicted, he or she will ask how you plead. If you want to fight the charge, you should either stand mute or plead not guilty.^{[10]
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- Keep in mind that if you plead guilty, you're waiving all of your rights. At this stage, it isn't advisable to plead guilty – as much as you may simply want the charge to go away.
- If you plead guilty to the charge, it will not go away. Despite the fact that you may only have to pay a fine, the charge will remain on your criminal record as a conviction, and can impact your ability to get financial aid for school or to get a job.
- After you enter your plea, the judge will instruct you on when you next need to appear in court.
- In some courts, you'll go straight to pre-trial after arraignment. This is a meeting with the prosecutor. You may be offered a plea deal at this time, but you don't have to take it right away. If you want to talk to an attorney first, just let the prosecutor know.

Part 2

Part 2 of 3:

Hiring an Attorney

1
Talk to your parents. As a minor, you probably need a parent to help you hire an attorney to represent you if you intend to fight your minor in possession charge. If you're in college, you may be tempted to handle it on your own and not tell your parents – but this may be a mistake.^{[12]
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- Keep in mind that although your parents likely will be upset, but their support can make a difference in how the prosecutor and the judge views your case. Telling your parents early on in the process will send them the signal that you are taking the situation seriously.
- You may be familiar with your constitutional right to have an attorney appointed for you if you can't afford to hire one.
- However, this right does not apply in a minor in possession charge, even though it is a criminal offense, because you don't face jail time if convicted. For this reason, if at all possible, you should hire an experienced criminal defense attorney to handle your case.
- Even if you're over 18 and able to hire an attorney on your own, it's still a good idea to get your parents involved. Although they are not the client and will not be allowed to interfere with your case, they still can help.
2
Schedule several initial consultations. You typically have a little time to find an attorney. If you talk to two or three, you can choose the one that seems best to you and that best fits the budget you and your parents have set.^{[14]
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- Most criminal defense attorneys give free initial consultations, so it shouldn't cost you any money to talk to several.
- The easiest way to find an attorney is to do a search on the internet for criminal defense attorneys in your area who handle minor in possession cases. If you have a friend who has recently been in a similar situation, you might want to ask if they used an attorney and if they would recommend the attorney they hired.
- Particularly if you got your minor in possession charge in a college town, you should have no trouble finding several attorneys who handle these types of cases.
- If you're in college, find out if your school has a student legal services clinic. Larger schools, especially those which also have a law school, typically do.
3
Prepare questions to ask. During an initial consultation, an attorney typically will go over a prepared presentation about their practice and what they can do for you, then ask if you have any questions. The more questions you ask, the more you'll get out of the consultation.^{[17]
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- Get the attorney to explain to you the law in your state. Tell them the story of what happened, and find out from the attorney if you have any strong defenses against the charge.
- Find out how many cases the attorney has handled that were similar to yours, and what the outcomes were in those cases.
- You also need to ask the attorney about their fees. Criminal defense attorneys typically consider minor in possession charges to be small cases, and may offer their services for a flat fee.
4
Compare and contrast the attorneys you interviewed. Once you've interviewed several attorneys, you should have the information you need to choose the best attorney to represent you and help you fight your minor in possession charge.^{[20]
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- While fees probably are a significant factor in choosing your attorney, they shouldn't necessarily be the only reason you choose one attorney over another.
- At the same time, you typically want an attorney who is willing to work for a flat fee over someone who is going to charge you by the hour.
- Although the flat fee may end up being more (depending on how quickly your case is resolved), it's a lot easier to budget if you know up front how much you're going to have to pay.
- Generally, you want to avoid any attorney who acted judgmental or dismissive toward you, or who made you feel intimidated.
- You will get a better outcome if you have a good working relationship with your attorney and believe they are acting in your best interests.
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Make your final selection. Once you've decided which attorney you want to hire, let them know as soon as possible. Criminal defense attorneys typically are very busy and you want to make sure your first choice is still available to take your case.^{[21]
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- Make sure you get a written retainer agreement that spells out exactly how much you're paying your attorney and what they're going to do for you.
- You don't necessarily have to meet with your attorney in person to go over your retainer agreement, but you may want to. If you meet in person, you can ask them questions or have them explain the agreement to you before you sign it.
- Don't pay your attorney any money – and don't let your parents pay them either – until you have a written retainer agreement that you've read, understood, and signed.

Part 3

Part 3 of 3:

Negotiating with the Prosecutor

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Meet with your attorney. Typically your attorney will want to meet with you to discuss your case before negotiations with the prosecutor begin in earnest. They may have already spoken with the prosecutor to get an idea of what kind of deal is on the table.^{[22]
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- It's important for you to be completely honest with your attorney. The more they know about you and your background, as well as the exact circumstances that led to your charges, the more they can help you reach a good result.
- Your attorney will analyze your case, and likely tell you which points work in your favor and which do not. The role of a good defense attorney is to emphasize the points in your favor.
- Based on your story, your attorney may advise you to go ahead and do certain things, such as getting addiction counseling, even before you meet with the prosecutor.
- Even if you don't believe you have an alcohol problem, going to treatment or counseling voluntarily will send a signal to the prosecutor that you have acknowledged the issue and are seeking help.
2
Consider the prosecutor's offer. When you have your first pre-trial meeting with the prosecutor, they likely will have a plea-bargain offer to present to you. In most cases, it won't be the best they could possibly offer to you.^{[24]
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- Since prosecutors have discretion over whether to pursue charges, if you've gotten to this point, it typically means that the prosecutor is reasonably confident they will get a conviction at trial.
- For this reason, prosecutors may not be inclined to be generous with you in regard to an initial plea-bargaining offer.
- At the same time, the prosecutor also typically wants to get your case off their desk, and isn't necessarily excited about the prospect of dragging your case out through a jury trial.
- With the help of your attorney, you can use this situation to your advantage to bargain for a better deal.
3
Plead your case. All the prosecutor knows about you is the information contained in the police report and court documents. The prosecutor may be open to reducing or even dropping the charges once they hear your story.^{[26]
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- If this is your first offense, you are much more likely to get a better deal than if it's your second or third offense.
- This is particularly true if you have a previous minor in possession charge, but any other brushes with the law may impact your ability to strike a good deal as well.
- Ultimately, your attorney likely will want to present you as a "good kid" who followed the rules and was generally responsible, but who made a mistake or was in the wrong place at the wrong time.
- All aspects of your background, including whether you have a job, your grades in school, and your extra-curricular activities can play a part in convincing the prosecutor to either dismiss the charges (which is rare) or at least make an arrangement to keep a conviction off your record.
4
Try to get a deferred sentence. A deferred sentence is perhaps the most sure-fire way to keep the charge off your record. Provided you successfully meet all the terms and conditions of probation for a period of time (typically a year), the charge will be dropped.^{[28]
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- Essentially, when you get a deferred sentence, you are convicted of the crime – you may have to plead guilty in court – but then entry of the conviction is deferred for a number of months or years.
- During that time, you will be on probation. You may have to complete a certain number of hours of community service or get addiction counseling, among other terms and conditions.
- If you successfully complete the probationary period, the conviction will not go on your record.
- You are more likely to get a deferred sentence if the minor in possession charge is your first brush with the law.
5
Be willing to comply with the terms of probation. Whether you get a deferred sentence or otherwise, complying with the terms of your probation, as ordered by the court, is essential if you want to avoid further consequences.^{[30]
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- Even though a minor in possession charge typically is not an offense that carries jail time, a probation violation may land you in jail.
- Furthermore, if you violate any of the terms and conditions of the deal you made with the prosecutor, the deal may be revoked. That means you can still be convicted on the minor in possession charge.
- If you were able to get deferred sentencing, once your probation term is over, you typically must reappear in court. If the judge is satisfied with your conduct, the conviction will not be entered on your criminal record.