Business and Professions Code 25658 makes it a misdemeanor in California to sell or furnish alcohol to a minor (someone under the state legal drinking age of 21). The law applies both to people who provide alcohol to the minor, as well as to minors who purchase, possess or consume alcohol. A conviction carries a penalty of up to 6 months in county jail, as well as the possible loss of licensing for a business or establishment from where the furnishing takes place.
Below, our California criminal defense attorneys1 explain what it means to furnish alcohol to a minor by addressing
- 1. California's Legal Definition of Furnishing Alcohol to a Minor
- 2. Examples
- 2.1. Undercover operations to arrest individuals who furnish alcohol to minors
- 2.2 "Operation Trapdoor"
- 3. Legal Defenses
- 3.1. Mistake of fact
- 3.2. Additional statutory defenses
- 4. Penalties, Punishment, and Sentencing
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
California Business and Professions Code 25658 regulates the sale of alcohol in California. This law makes it a crime to
- furnish (that is, sell, provide or give) -- or causing to be sold, furnished, or given away -- any alcoholic beverage to a person under the age of 21;
- being a person under 21 and either
- a) purchasing an alcoholic beverage, or
- b) consuming an alcoholic beverage in a place where alcohol is sold; and/or
- being an on-sale licensee and permitting a person who is under 21 to consume any alcoholic beverage on the premises, even if the licensee doesn't have actual knowledge that the individual is under 21 years of age.2
Although there are a variety of ways to violate Business and Professions Code 25658, there are a couple of violations that are more common than others. These include undercover operations designed to "catch"
- individuals who furnish alcohol to minors, and
- underage individuals who try to purchase or consume alcoholic beverages.
One of the most common ways to violate California's "furnishing alcohol to a minor" law is to buy alcohol for a person under 21. This violation frequently occurs at grocery or liquor stores near college campuses.
An underage individual will give you money and ask that you please buy him/her some alcohol. Believing this is really "no big deal" you agree and make the purchase. As you return the alcohol to the minor, the cops "bust" you because either
- they were using the minor as one of their agents - or a youthful-looking officer.in an undercover sting type of operation, or
- they observed you furnishing the alcohol to the minor.
In fact, the California Department of Alcoholic Beverage Control ("ABC") has announced that beginning in January 2011 it will be providing money to local law enforcement agencies that employ these types of undercover operations.
The "shoulder tap" program uses these undercover officers or "agents" to approach unsuspecting individuals in an effort to have them buy alcohol.
The second common practice used to arrest people for violating California's "furnishing alcohol to a minor" law is through a program known as "Operation Trapdoor".
This program, which began in 1999, targets people who are under 21 who attempt to use fake or fraudulent driver's licenses or identification ("I.D.") cards to gain entrance into bars/nightclubs and/or who try to purchase alcoholic beverages.
ABC licensees (that is, bars, nightclubs, liquor stores, etc.) contact law enforcement when they have an underage individual who they suspect is trying to use a fake or fraudulent I.D. The bartender or "bouncer" stalls the individual while law enforcement responds either to question or arrest the minor.
Depending on the circumstances, the underage suspect faces charges for
- Penal Code 470a PC California's law against forging or counterfeiting a driver's license or I.D. card,3
- Penal Code 470b PC California's law against possession of a fake driver's license or identification card,4 and/or
- Vehicle Code 13004 VC California's law against using someone else's identification card.5
Fortunately, there are a variety of legal defenses to Business and Professions Code 25658 California's law against furnishing alcohol to a minor that a California criminal defense lawyer could present on your behalf.
Perhaps the most common is based on a mistake of fact.6 What's interesting about this defense is that "mistake of fact" is not historically a defense that applies to strict liability offenses such as furnishing alcohol to a minor.7
A "strict liability" offense is one where the prosecution doesn't need to prove that the defendant had criminal intent in order to secure a conviction. Business and Professions Code 25658 is a strict liability offense. This is because the prosecution does not need to prove that the defendant knew the individual to whom he/she provided alcohol was underage. The judge/jury can convict the defendant of this offense regardless of that knowledge.
However, there is a modern trend nevertheless to allow a defendant to raise a mistake of fact defense in this type of case where an honest and reasonable belief may justify the defendant's conduct.8 (The same is true of the very similar offense of furnishing dangerous fireworks to a minor, where an honest and reasonable belief that the minor was of age can serve as a defense, or an offense like mislabeling food for sale, where a reasonable belief that the food was correctly labeled can serve as a defense.)
As San Jose criminal defense attorney Cameron Bowman9 explains, "This means that if the judge/jury believes that the defendant honestly and reasonably thought that the minor was of legal drinking age, they could choose to acquit the defendant of the charge."
There are a couple of additional defenses that are written into the law.
California Business and Professions Code 25660 is a defense that is also based on a mistake of fact. If you are a licensee and either sell alcohol to a minor or allow a minor to consume alcohol on your premises, you may be absolved of criminal liability if you did so because you reasonably relied on bona fide (that is, "genuine") government-issued I.D. cards such as a
The card itself doesn't actually have to be government-issued, it can be forged or fake. The critical determination is whether you reasonably believed that it was, in fact, a true government-issued form of identification.
If you inspected the I.D. and it looked as if it were genuine, you would be exempt from prosecution and/or an Alcoholic Beverage Control license suspension/revocation. However, if the I.D. did not appear to be genuine, you would still face liability for this crime.11
Example: A liquor store clerk checked a minor's I.D. as he purchased two 6 packs of beer. The clerk neither removed the I.D. card nor asked the minor to remove the I.D. from his wallet where it was partially concealed behind a plastic window. The card purported to be a California I.D. card that was issued by the California Department of Motor Vehicles.
Had the clerk removed the card, she would have seen that the card
As a result, the clerk was held liable for selling alcohol to a minor because the court could not conclude that she reasonably relied on a bona fide identification card.12
- had no magnetic strip on the back,
- had print that was typewritten instead of computer generated,
- had a raised photo which was separately attached instead of one that was computer generated as a part of the card, and
- that the colors on the card were actually different than those that appear on California issued I.D. cards.
California Business and Professions Code 25667 provides that you are immune from criminal prosecution if you are under 21 and purchase or consume an alcoholic beverage when
- you call 911 and to report that either you or another person needs medical attention due to alcohol consumption,
- you are the first person to make the 911 report,
- you remain at the scene until the medical assistance arrives and cooperate with the medical assistants and/or law enforcement who arrived, AND
- neither you nor the other minor was involved in an activity that was dangerous because of the alcohol consumption, such as violating Vehicle Code 23140 VC being under 21 and driving under the influence.13
If you meet all of the above criteria, you should be acquitted of any criminal wrongdoing.
Business and Professions Code 25658 California's "furnishing alcohol to a minor" law is a misdemeanor. The penalties for furnishing alcohol to a minor vary depending on the exact circumstances that surround your case.
If you are convicted of furnishing alcohol to a minor, you face a maximum $1,000 fine and will be required to perform no less than 24 hours of community service in either an alcohol or drug treatment facility or at a county coroner's office.14
If you are convicted of furnishing alcohol to a minor.and that minor consumes the alcohol and thereby causes either him/herself or another person to suffer great bodily injury or death, you face a six-month to one-year county jail sentence and a $1,000 fine.15
In addition to or in lieu of this offense, prosecutors could charge you with violating Penal Code 272 PC California's "contributing to the delinquency of a minor" law. If convicted of this offense, you face a maximum one-year county jail sentence and a maximum fine of $2,500.16
Along these same lines, if you knowingly allow your child and/or another child who is under 18 years old to consume an alcoholic beverage or controlled substance in your home, you face a misdemeanor punishable by up to one year in the county jail and a maximum $1,000 fine if
- as the result of the alcohol and/or drug use, the child (a) was under the influence of the drug(s), or (b) had a blood alcohol concentration (BAC) of 0.05% or greater,
- you allowed your child or the other underage person to drive a car, AND
- your child or the other minor caused a traffic accident.17
If you are convicted of being under 21 when you either (1) purchased an alcoholic beverage, or (2) consumed an alcoholic beverage in a place where alcohol is sold, you must pay a $250 fine, and perform 24-32 hours of community service in either an alcohol or drug treatment facility or at a county coroner's office. However, a second or subsequent violation subjects you to a maximum fine of $500 and 36-48 hours of community service.18
Additionally, if you were between the ages of 13 and 21 at the time of the offense, you face a one-year driver's license suspension. If you have not yet obtained a driver's license, your ability to drive will be postponed for one year from the date that you are eligible to otherwise obtain a license. And subsequent violations will result in an additional one-year suspension or delay.19
If you are convicted of being an on-sale licensee (that is, a bar, restaurant, etc.) and knowingly permitting a person who is under 21 to consume an alcoholic beverage on the premises.even if you don't know that the individual is under 21 years of age, you face the same penalties listed under section 4.2. above.20
Additionally, the California Department of Alcoholic Beverage Control may suspend your alcohol license for 15 days following your first conviction. A second conviction within a 36-month period will result in a 25-day suspension. A third conviction will result in a license revocation.21
If your suspension is for a first or second offense, you may petition the ABC to pay a fine in lieu of serving your suspension.22
Call us for help...
If you or loved one is charged with Business & Professions Code 25658 BP selling or furnishing alcohol to a minor and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's laws regarding selling or furnishing alcohol to a minor. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.23
Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
California Business and Professions Code 25658 -- California's "furnishing alcohol to a minor" law. ("(a) Except as otherwise provided in subdivision (c), every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor. (b) Any person under the age of 21 years who purchases any alcoholic beverage, or any person under the age of 21 years who consumes any alcoholic beverage in any on-sale premises, is guilty of a misdemeanor. (c) Any person who violates subdivision (a) by purchasing any alcoholic beverage for, or furnishing, giving, or giving away any alcoholic beverage to, a person under the age of 21 years, and the person under the age of 21 years thereafter consumes the alcohol and thereby proximately causes great bodily injury or death to himself, herself, or any other person, is guilty of a misdemeanor. (d) Any on-sale licensee who knowingly permits a person under the age of 21 years to consume any alcoholic beverage in the on-sale premises, whether or not the licensee has knowledge that the person is under the age of 21 years, is guilty of a misdemeanor. (e)(1) Except as otherwise provided in paragraph (2) or (3), any person who violates this section shall be punished by a fine of two hundred fifty dollars ($250), no part of which shall be suspended, or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed and is not attending school, or a combination of a fine and community service as determined by the court. A second or subsequent violation of subdivision (b) shall be punished by a fine of not more than five hundred dollars ($500), or the person shall be required to perform not less than 36 hours or more than 48 hours of community service during hours when the person is not employed and is not attending school, or a combination of a fine and community service as determined by the court. It is the intent of the Legislature that the community service requirements prescribed in this section require service at an alcohol or drug treatment program or facility or at a county coroner's office, if available, in the area where the violation occurred or where the person resides. (2) Except as provided in paragraph (3), any person who violates subdivision (a) by furnishing an alcoholic beverage, or causing an alcoholic beverage to be furnished, to a minor shall be punished by a fine of one thousand dollars ($1,000), no part of which shall be suspended, and the person shall be required to perform not less than 24 hours of community service during hours when the person is not employed and is not attending school. (3) Any person who violates subdivision (c) shall be punished by imprisonment in a county jail for a minimum term of six months not to exceed one year, by a fine of one thousand dollars ($1,000), or by both imprisonment and fine. (f) Persons under the age of 21 years may be used by peace officers in the enforcement of this section to apprehend licensees, or employees or agents of licensees, or other persons who sell or furnish alcoholic beverages to minors. Notwithstanding subdivision (b), any person under the age of 21 years who purchases or attempts to purchase any alcoholic beverage while under the direction of a peace officer is immune from prosecution for that purchase or attempt to purchase an alcoholic beverage. Guidelines with respect to the use of persons under the age of 21 years as decoys shall be adopted and published by the department in accordance with the rulemaking portion of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). Law enforcement-initiated minor decoy programs in operation prior to the effective date of regulatory guidelines adopted by the department shall be authorized as long as the minor decoy displays to the seller of alcoholic beverages the appearance of a person under the age of 21 years. This subdivision shall not be construed to prevent the department from taking disciplinary action against a licensee who sells alcoholic beverages to a minor decoy prior to the department's final adoption of regulatory guidelines. After the completion of every minor decoy program performed under this subdivision, the law enforcement agency using the decoy shall notify licensees within 72 hours of the results of the program. When the use of a minor decoy results in the issuance of a citation, the notification required shall be given to licensees and the department within 72 hours of the issuance of the citation. A law enforcement agency may comply with this requirement by leaving a written notice at the licensed premises addressed to the licensee, or by mailing a notice addressed to the licensee. (g) The penalties imposed by this section do not preclude prosecution or the imposition of penalties under any other provision of law, including, but not limited to, Section 272 of the Penal Code and Section 13202.5 of the Vehicle Code.")
California Penal Code 470a PC -- Forgery or counterfeiting of driver's license or identification card; intent; punishment.
California Penal Code 470b PC -- Displaying or possessing a forged or counterfeit driver's license or identification card.
California Vehicle Code 13004 VC -- Unlawful acts.
California Jury Instructions - Criminal (CALJIC 4.35) -- Ignorance or mistake of fact as a California legal defense.
In re Jennings (2004) 34 Cal.4th 254, 277-278.
See same at 280. ("As in Vogel, supra, 46 Cal.2d 798, 299 P.2d 850, we conclude that, although the prosecution need not prove an offender's knowledge of age in order to establish a violation of section 25658(c), petitioner was entitled to raise an affirmative defense, for which he would bear the burden of proof, that he honestly and reasonably believed Turpin was at least 21 years old. Recognizing the viability of a mistake of fact defense is consistent with the modern trend away from strict liability for criminal offenses as well as with Penal Code section 20 and the statutory scheme of which Business and Professions Code section 25658(c) is but a part.")
San Jose criminal defense attorney Cameron Bowman defends clients throughout Northern California which includes (but is not limited to) the Santa Clara, Contra Costra, San Francisco and Alameda County courthouses.
California Business and Professions Code 25660 -- Bona fide evidence of majority and identity; Armed Forces members; defense to criminal prosecutions.
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2004) 118 Cal.App.4th 1429, 1437. ("We conclude that section 25660 does apply to fake ID's which purport to be government issued. But the Department ALJ found, as a question of fact, there was no reasonable reliance on the particular ID in this case.")
See same at 1434.
CALIFORNIA 2010 LEGISLATIVE SERVICE - 2010 Portion of 2009-2010 Regular Session - CHAPTER 245 - A.B. No. 1999 - ALCOHOLIC BEVERAGES--UNDERAGE DRINKERS--IMMUNITY FROM PROSECUTION.
California Business and Professions Code 25658, subdivision (e)(2)
See same, subdivision (e)(3). ("(3) Any person who violates subdivision (c) shall be punished by imprisonment in a county jail for a minimum term of six months not to exceed one year, by a fine of one thousand dollars ($1,000), or by both imprisonment and fine.")
California Penal Code 272 PC -- Contributing to the delinquency of a minor.
California Business and Professions Code 25658, subdivision (e)(1)
California Vehicle Code 13202.5 -- Drug and alcohol-related offenses by person under age of 21, but aged 13 or over; suspension, delay, or restriction of driving privileges.
See endnote 18, above.
California Department of Alcoholic Beverage Control's "Penalty Guidelines".
California Business and Professions Code 23095
Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's laws regarding contributing to the delinquency of a minor. Our Nevada law offices are located in Reno and Las Vegas.