Possession vs. Consumption

Possession of Malt Beverage Vs. Consumption of Alcohol


Many people have asked “what is the difference between possession of alcohol and consumption of alcohol?” Under North Carolina Law, there are multiple alcohol offenses that an underage person can be charged with for drinking or possessing alcohol. Chapter 18B: Regulation of Alcoholic Beverages of the North Carolina General Statutes define these differences as follows:

18B-302(b) Purchase, Possession, or Consumption.
It shall be unlawful for:
(1) A person less than 21 years old to purchase, to attempt to purchase, or to possess malt beverages or unfortified wine; or
(2) A person less than 21 years old to purchase, to attempt to purchase, or to possess fortified wine, spirituous liquor, or mixed beverages; or
(3) A person less than 21 years old to consume any alcoholic beverage.

Even with our legislative branch defining what these differences are, there still seems to be some confusion as to this section of law. A lot of the confusion stems from all the different names people use to describe these charges. I hear these charges referred to as drinking tickets, minor in possession of alcohol, underage possession, possession of alcohol, open container, consuming tickets, and so on. Often Law Enforcement Officers charge the incorrect offense or mistakenly charge an offense when one was not actually committed. So before you pay off a citation, plead guilty, or accept responsibility for one of these charges, speak to an attorney to determine what your options might be.

The North Carolina Court of Appeals addressed this issue in State v Hensley, 661 S.E.2d 18, (2008). In this case, an officer followed a vehicle which was traveling at a high rate of speed, the officer lost sight of the vehicle, and the vehicle was abandoned in front of a residence. Upon looking inside the vehicle, the officer observed “beer bottles or some type of wine.” The officer then went to the residence to speak with the suspected driver of the vehicle. He found the defendant to be lying on the couch and asleep. Upon talking to him, he noticed red glassy eyes and an odor of alcohol. The defendant admitted to being 20 years old. The defendant was arrested for Driving While Impaired and Possession of a Malt Beverage by a person less than 21 years old. At trial, the defendant was found not guilty of driving while impaired and guilty of possession of a malt beverage by a person less than 21 years old. The defendant entered notice of appeal to the North Carolina Court of Appeals on the charge of possession of a malt beverage.

Because the defendant had admitted to being less than 21 years old, the only issue on appeal was whether the defendant possessed a malt beverage. The State can show possession by either actual possession or constructive possession. “Actual possession requires that a party have physical or personal custody of the item.” State v. Alston, 141 N.C. App 514, 519 (1998). Under the theory of constructive possession, an accused has possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use.” State v. Brown, 310 N.C. 563, 569 (1984). The Court reasoned that “the State presented substantial evidence to prove defendant possessed both the beer bottles and the wine found in his vehicle. However, while the State presented substantial evidence that defendant possessed the beer bottles and wine discovered in his vehicle, we now determine whether the State presented substantial evidence to prove whether the bottles or the wine defendant possessed contained a malt beverage or could be considered a malt beverage.” Hensley at 22. North Carolina General Statute 18B-101(9) defines a “malt beverage as beer, lager, malt liquor, ale, porter, and any other brewed or fermented beverage containing at least one-half of one percent (0.5%), and not more than fifteen percent (15%), alcohol by volume.” N.C. Gen.Stat. 18B-101(9) (2006).

The State failed to present evidence that there was any liquid remaining in the bottles and the officer threw away the bottles with the labels on them. Therefore, there was no way of proving by inference that the beverages fit the legal definition of a malt beverage, and defendant was not charged with possession of unfortified wine.

The Court granted the defendant’s motion to dismiss and made the following conclusion of law:

Although the State presented substantial evidence that defendant possessed the beer bottles and wine discovered in his vehicle, the State must also present substantial evidence from which the jury could find that the beverages defendant possessed, or constructively possessed, were in fact “malt beverages.” The evidence which supports the State’s case, aside from the mere existence of “beer bottles,” was Deputy Ball’s observations, defendant’s admission, and his blood alcohol concentration. Deputy Ball noticed defendant had “red, glassy eyes,” and he detected an odor of alcohol. In addition, defendant admitted to Deputy Ball that he drank a half bottle of red wine earlier in the evening, and defendant’s blood alcohol concentration level was .11. However, none of these facts demonstrate one of the three necessary elements of the charge against defendant, that defendant “had in his possession a malt beverage,” since wine does not meet the definition of a “malt beverage.” These facts admittedly demonstrate that defendant had consumed some type of alcoholic beverage, but consumption and possession are two different matters.”

Although N.C. Gen.Stat. Chapter 18B, Article 1 does not define the word “consume” or “consumption” in relation to alcoholic beverages, “it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted.” Transportation Service v. County of Robeson, 283 N.C. 494, 500, 196 S.E.2d 770, 774 (1973). “Consume” is defined as “to eat or drink….” Merriam-Webster’s Collegiate Dictionary 268 (11th ed.2003). Certainly, the common meaning of “consumption” as it relates to a beverage in the context of N.C. Gen.Stat. § 18B-302 is to drink the beverage. However, defendant was not tried for consumption of a malt beverage; he was tried only for possession of a malt beverage.

We conclude the State did not meet its burden of proving substantial evidence existed for all three elements of the offense charged. Scott, 356 N.C. at 595, 573 S.E.2d at 868. Accordingly, the trial court erred by not granting defendant’s motion to dismiss. We therefore reverse the judgment. Hensley at 22.

Even though this case has been published and the statutes are pretty clear on the law, it still gets confusing, so seek counsel before accepting responsibility for a crime you may or may not be guilty of.


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