Wednesday, July 15, 2009

Is "Minor in Possession" a thing of the past?*

*At least for high school seniors and up? In the criminal defense bar, there has long been an argument that two fairly common criminal violations leveled against persons 18-20 years old in the state of South Carolina were unconstitutional: possession of a pistol and possession/consumption of alcohol by a minor (when the minors were 18-20).

What's the argument? Well...

Article XVII, Sec. 14
Citizens deemed sui juris; restrictions as to sale of alcoholic beverages.

Every citizen who is eighteen years of age or older, not laboring under
disabilities prescribed in this Constitution or otherwise established by law,
shall be deemed sui juris and endowed with full legal rights and
responsibilities, provided, that the General Assembly may restrict the sale of
alcoholic beverages to persons until age twenty-one.

See the argument? First, The South Carolina constitution specifically states that once you reach 18 years of age, absent some disability, you are endowed with full legal rights. It further provides that the General Assembly may restrict THE SALE of alcoholic beverages to persons until the age of twenty-one, but it does not provide that the General Assembly may in any way restrict possession or consumption. There's nothing about pistols in there either, is there?

This has been an argument that the criminal bar has been pushing for years. Recently, Rock Hill attorney Leland Greeley finally got this argument before the South Carolina Supreme Court and won. (see State v. Bolin, Opinion #26494 (May 19, 2008)).

After the Bolin case, everyone has been eager to take this argument in front of a judge in an alcohol possession case. Today, Columbia attorney Joe McCulloch got a signed Order finding S.C. Code 63-19-2450 unconstitutional. Here's that statute:

Alcoholic beverages purchase, consumption, possession.

It is unlawful for a person under the age of twenty-one to purchase,
attempt to purchase, consume, or knowingly possess alcoholic liquors. Possession
is prima facie evidence that it was knowingly possessed. It is also unlawful for
a person to falsely represent his age for the purpose of procuring alcoholic
liquors. Notwithstanding another provision of law, if the law enforcement
officer has probable cause to believe that a person is under age twenty-one and
has consumed alcohol, the law enforcement officer or the person may request that
the person submit to any available alcohol screening test using a device
approved by the State Law Enforcement Division.

So...there you have it. That statute is in direct conflict with the specific language of the state constitution. Conflict between statute and constitution, constitution wins.

Is "minor in possession" no longer a worry for 18-20 year olds? If you're 18-20 years old, I would not be running out possessing and consuming alcohol with no fear just yet. McCulloch's Order was issued by a Magistrate. I have to think the Richland County Solicitor's office may move to appeal the issue. And I would bet a sizable amount of money (if that was legal!) that cops will continue to write tickets and charge this until the SC Supreme Court addresses the issue directly. But the law is the law. And given the Bolin decision and the specific language of the state constitution, it sure seems like it would be hard as hell for this "crime" to survive.

Late update (7/15/09 8:24 pm): WIS reporter Jack Kuenzie has a story including a video interview with McCulloch up on their website. According to Kuenzie's report, the Richland County Solicitor's office does intend to appeal the decision to Circuit Court.

Late, late update (August 3, 2009): There has now been a second court to issue a written Order finding a minor in possession of alcohol unconstitutional. It's not that criminal attys are just now making this argument, it's that these lower Courts are finally listening.

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