On the front page of today's Eagle Tribune, the paper reports that while Methuen School Superintendent Judith Scannell was in New York over the weekend, police were dispatched to her home. There, they discovered a party of youths (under 21), with several beer bottles and cups inside the kitchen and in the backyard. None of the youths was found to be directly in possession of alcohol, and no arrests were made. Based on the online comments to this article, the town of Methuen seems to be completely divided on whether the police acted appropriately, and they seem even more misguided on the law regarding minors in possession of alcohol. I hope that this blog covers some basic facts and fiction regarding this area of criminal law in Massachusetts.
Under MGL c. 138 s. 34C, "Whoever, being under twenty-one years of age and not accompanied by a parent or legal guardian, knowingly possesses, transports or carries on his person, any alcohol or alcoholic beverages" is considered to have violated this statute (with the exception of performing job-related duties). In house parties such as this one, the critical question becomes "What constitutes possession?"
In dealing with a controlled substance, there are two types of possession- active and constructive. If a police officer saw one of the youths with a beer in his/ her hand, that would be active possession. According to police, that did not happen. The only question is now whether any of these kids was in constructive possession of alcohol. This is often a last-ditch effort to make an arrest where one probably isn't warranted, because constructive possession of alcohol in this situation is almost impossible to prove.
Constructive possession means that the person had knowledge that the substance (alcohol) was there, and the person also had the ability and intention to exercise dominion and control over that substance. Just the knowledge that alcohol is present, without evidence of intent to actually possess it, is not enough. A clear example of such intent would be if the officer saw a youth reach into a cooler filled with nothing but beer, demonstrating an intent to actively possess that beer. But a youth who is merely in the presence of alcohol at one of these unsupervised parties is not guilty of this crime, without other incriminating evidence. Of course, there are still police who often make weak arrests under these circumstances. I actually love taking on these cases as a defense attorney, because I am able to either have them dismissed, or I take them to trial and win. To suggest that the Methuen police selectively chose not to arrest anyone because it was Superintendent Scannell's home, or that they "ignored the law" as has been posted by many bloggers, is unfounded and incorrect. I praise the Methuen police for knowing, understanding, and following the law in this situation, despite the risk of misguided accusations against them.
If you have been charged with Minor in Possession of Alcohol, or any other criminal offense in Massachusetts, contact:
Law Offices of Benjamin P. Urbelis, P.C.
1211 Commonwealth Avenue
Boston, MA 02134