Tempe, Arizona Minor in Consumption Attorney: ARS 244-41

Under Arizona law, it’s illegal for anyone under 21 to consume alcohol. Underage drinking charges are common in Arizona—especially in Tempe. To discourage underage drinking near college campuses and housing, Tempe and ASU Police issue a high volume of “MIC” citations. Their reasoning is to fight the dangers of alcohol consumption and curtail other crimes associated with drinking. Regardless of their reasoning, when charged, it’s crucial that you protect your interests, rights, and future.

The minor in consumption law reads as follows: “it is unlawful for a person under twenty-one years of age to have in the person’s body any spirituous liquor.” ARS 244(41). Thus, even if someone underage takes one sip of alcohol, they’re breaking the law and may be arrested.

What are the potential penalties and consequences of Minor in Consumption?

Under ARS 4-246(A), minor in consumption is a class 2 misdemeanor. As a class 2 misdemeanor, the maximum penalties are 4 months jail, 2 years of probation, and up to $1372.50 in fines and surcharges. More common sentences include probation, alcohol classes, treatment, and community service. While jail is unlikely for first time offenders, a permanent criminal conviction is a real possibility. A criminal conviction can follow you for the rest of your life because Arizona doesn’t have expungement.

Collateral Consequences to Underage Drinking.

An MIC conviction can negatively impact scholarships, financial aid, graduate school applications, future employment, extra-curricular activities, and campus housing. Many schools and programs have their own internal policies for underage drinking.

Alcohol Diversion or Deferred Prosecution May Avoid the Conviction.

A common result our office obtains for clients is entry into an alcohol diversion program. Successful completion of diversion results in the dismissal of the case. Minor in consumption diversion typically entails three months of alcohol class, community service, and program fees. So long as the program requirements are successfully completed, the underlying charge is dismissed and the conviction is avoided. In some circumstances, a Defendant can complete the program while living in another state.

Tempe and ASU Minor in Consumption Courts.

While our office represents clients in several Courts throughout Arizona, the majority of our underage drinking cases come from the Tempe and ASU jurisdictions. When cited by Arizona State University Police, the underage drinking case is usually held at the University Lakes Justice Court or Kyrene Justice Court. Both justice courts are located at the San Tan Regional Court Center in downtown Chandler. When cited by Tempe Police, the case is usually held at the Tempe Municipal Court. The Municipal court is located at the crossroads of East Fifth Street and Myrtle Avenue. It’s next to the Tempe Police Station.

Primary Law Enforcement Agencies Serving Tempe, Arizona.

Tempe Police Department is Tempe’s main law enforcement agency. They have more than 350 active officers. Misdemeanor cases from Tempe Police—including MIC charges—are sent to the Tempe Municipal Court for city prosecution. ASU Police Department provides additional law enforcement for ASU property under the control of the Arizona Board of Regents. Having mutual agreements with Tempe, ASU police have jurisdiction in the streets surrounding ASU. Minor in consumption cases, charged by ASU police, are typically referred to the University Lakes Justice Court or the Kyrene Justice Court.

Can I request a jury trial for minor in consumption?

Unfortunately, no. Despite facing up to four months in jail, and much more, Arizona Courts believe that the potential penalties aren’t significant enough to warrant a jury trial. Raye v. Jones (Ariz. App. 2003). Instead, any trial is heard by the judge.

Common Defenses in Underage Drinking Cases.

  • Constitutional Violations: Our state and federal constitutions protect against unbridled and unreasonable state conduct. When any State agency violates our constitutional rights, it can warrant the suppression of evidence and can lead to a dismissal. Police often rely on nefarious methods in obtaining evidence and admissions from young Defendants. In those cases, the State should not be able to use improperly obtained statements or evidence.
  • Fruit of the Poisonous Tree. Any evidence, admissions, or testimony discovered as a direct result of unconstitutional government conduct cannot be used. Once an unconstitutional event occurs, evidence directly flowing therefrom, must be suppressed.
  • No alcohol consumed. A person’s mere presence at a bar or party is insufficient to secure a conviction. There must direct or circumstantial evidence that alcohol is in the Defendant’s body.
  • The Recovered Alcohol Doesn’t Belong to the Defendant. While the presence of alcohol may serve as circumstantial evidence, it doesn’t establish whether the Defendant was actually drinking.
  • Statutory Exceptions. Exceptions to the Minor in Consumption laws include consuming for legitimate medical or religious purposes pursuant to ARS 4-226 and ARS 4-249.
  • No Portable Breath Test or Problems with the Breath Test. A portable breath test is admissible to establish the presence of alcohol; it’s the most common scientific evidence used my law enforcement in underage drinking cases; however, the numerical BAC reading of a portable breath test is not admissible in Court. An officer may only testify that it gave a positive reading for alcohol. When an investigation lacks any breath test, it raises doubts as to the sufficiency of the State’s evidence.
  • No Intoxilyzer 8000 or Blood Sample. While Court’s do not require this evidence to prove underage drinking, Arizona only permits a numerical BAC reading when either the Intoxilyzer 8000 is used, or a blood sample is obtained.
  • Mere smell of alcohol. The mere smell of alcohol, alone, is not sufficient to prove alcohol consumption. The presence of alcohol on clothing and companions are reasonable explanations, among others.
  • Only an Admission. A defendant’s out-of-court confession, alone, is insufficient to prove the defendant’s guilt. While the government may rely on a defendant’s confession, it has been long established that, in order to serve as the basis for conviction, the government must also adduce some independent corroborating evidence.


There are options in handling an underage drinking charge in Arizona. With the help and guidance of an experienced criminal defense attorney in Mesa, you may be able to plead to a lesser offense, obtain diversion, or seek an acquittal at trial. Call Tobin Law Office to learn how we can help you, or your child, avoid a permanent criminal conviction.

Contact Tobin Law Office for a Free and Confidential Consultation with Mr. Tobin.

    Tobin Law Office
    1910 S. Stapley Dr.
    Suite 221
    Mesa, AZ 85204

    Phone: 480-447-4837
    Fax: 480-447-4837
    Email: tim@tobinlawoffice.com