Virginia Drinking Laws for Anyone with an Underage Drinking Charge

penalty for underage drinking

Penalty for Underage Drinking

If you are charged with underage drinking, you will want to know what the penalty for underage drinking is. Virginia drinking laws can be difficult to navigate since they include driving while intoxicated, and underage possession of alcohol. However, I will go through the different Virginia drinking laws, and what the penalties are.

Virginia Drinking Laws: Penalty for Underage Drinking

Many of the Virginia drinking laws are found under Virginia code 4.1-305. These underage drinking laws penalize and prohibit the purchase, possession, and sale of alcohol for someone who is under 21. At Leavitt & Martin, we specialize in misdemeanor cases like this.

If you want to read the Virginia drinking laws, you can view them online HERE. I will try to answer some of the common questions I get asked about Virginia drinking laws and underage drinking charges. Underage drinking is a criminal charge, and so the consequences can be long lasting if you don’t address them. Many cases involve college students, who get in trouble with their local campus police who enforce these laws strictly. Colleges and universities have strict alcohol policies, and the police issues summons for underage drinking.

Is Underage Drinking a Misdemeanor or is Underage Drinking a Felony?

Fortunately, Virginia is not THAT strict with underage drinking to classify it as a felony. Virginia classifies underage drinking as a CLASS 1 MISDEMEANOR. So, it is not a felony, but it is the most serious misdemeanor. The range of punishment is:

  • 0-12 months in jail
  • mandatory fine of $500 or 50 hours of community service
  • UP TO $2500 fine
  • license suspension 6 months to 1 year
  • permanent criminal record if found guilty
    • the criminal record CANNOT be expunged if you are found guilty

These are some of the direct consequences for Virginia drinking laws. But they do not come close to addressing the potential secondary consequences many people face after a conviction:

  • school/sports discipline, in addition to what the court does
    • many schools have a zero tolerance policy, and you can lose a scholarship or be kicked out of school for a misdemeanor conviction
  • employment issues
    • many employers are getting MORE serious about what shows up on a background check than in the past
    • years ago, a simple mistake like underage drinking might have been overlooked, but now many employers hold it against potential employees
  • license suspension issues if found guilty

Underage Drinking Charge: How to Get a Drinking Ticket Dropped

How to get a drinking ticket dropped

How to get a drinking ticket dropped

If you have an underage drinking charge, the you likely want to know the best way to proceed. There are several options moving forward:

  1. Get your charge dismissed due to a legal defense
  2. Get your drinking ticket dropped with the first offender’s program
  3. Get your underage drinking charge dismissed with a plea agreement, not pursuant to the first offender program

How to get a Drinking Ticket Dropped with a Legal Defense

There are really three ways to get your underage drinking charge dismissed in Virginia. You can get your underage drinking charge dismissed with a legal defense. You might think these cases are very simple, but they often are not simple. The officers will need to get past hurdles to show why they were legally in a position to arrest you for underage drinking. Did the drinking happen on private property, or public? Were you in public view? Who, if anyone, gave the officer’s permission to be in a position to charge you with an underage drinking charge.

Even if the officers were in a position to give you an underage drinking charge, can they prove you were drinking alcohol? This is something that is often just assumed. This came to mind when I was considering drinks like O’Douls and other non alcoholic drinks that contain some alcohol. If the officers don’t perform any sort of breath analysis, then how do they know that the drink was an alcoholic beverage? In Virginia, not all beverages with alcohol are illegal. The alcohol by volume in the drink must reach a certain level before it becomes illegal. Otherwise, it is not technically an alcoholic beverage.

Virginia Drinking Laws Allow for the Charges to Get Dropped With a First Offenders Program

Virginia judges have the authority to let someone enter a program for first offenders who have an underage drinking charge. Under this first offender program, the judge continues the case for a period of time (usually 6 months to a year). It is a probationary period. The judge can suspend the license. The judge has to order alcohol classes and the defendant is usually put on formal probation, and must do community service. At the end of the probation period, the charge gets dismissed (dropped) and does not result in a conviction for underage drinking.

The benefit to this is that there is no conviction. The negative is that it is a more formal program, and there is more of a record of it than other types of dismissals. The conviction cannot be expunged if the charge is dropped with first offender. There is a better way to get an underage drinking charge dropped.

Underage Drinking Charge Dropped by Agreement

Some locations are very reasonable, and the prosecutor will agree to dismiss an underage drinking charge by agreement. To get this result, your attorney would need to negotiate this deal with the prosecutors office. You cannot get this result unless the prosecutor agrees to it.

The deal works SIMILAR to the first offender program but it is much better. There is no formal probation, and you never enter a plea. The benefit here is that when the underage drinking charge is dropped, then the dismissal is EXPUNGABLE. That means that it is eligible to be expunged if you want to do that in the future. Also, on job applications it is better when the case is dismissed this way. Any conditions the agreement calls for are completely optional. On the outside looking in, it just looks like a simple continuance and then a dismissal. So this is a great result if there is no legal defense to the underage drinking charge.

Virginia Drinking Laws

Virginia drinking laws

Virginia Drinking Laws

4.1-305: You cannot purchase, possess or consume alcohol unless you are at least 21 years old in Virginia. In addition, you cannot use a fake ID or alter an ID. This applies to a driver’s license AND also a student ID at college.

4.1-306: Buying alcohol for some who is not allowed to possess it is illegal, and it is a class 1 misdemeanor as well. If you purchase alcohol for someone who is not 21, or who is intoxicated, then you are guilty of a class 1 misdemeanor.

4.1-307: Must be at least 18 to sell or serve alcohol and it is a class 1 misdemeanor against the person who allowed it to happen.

4.1-308: Drinking in public. You cannot either drink in public OR offer a drink to someone else in public and it is a class 4 misdemeanor if convicted. There is a lot of case law on what it means to drink in a “public place.”

18.2-388: Drunk in public. In Virginia, public intoxication is a class 4 misdemeanor if you are intoxicated in public.

18.2-323.1: Driving with an open container. In Virginia it is illegal, and a class 4 misdemeanor to drive a vehicle with an open container.

18.2-266: Driving while intoxicated. This is the Virginia DUI law.

18.2-266.1: Underage drinking and driving. You do not have to be intoxicated, and if you are, you would get charged with a normal DUI. You just have to have at least a .02 BAC and it is a class 1 misdemeanor. This is known as a “baby” DUI but that’s not an accurate description as it is a class 1 misdemeanor and carries most of the same penalties as a DUI.

Penalty for Underage Drinking Under the Virginia Drinking Laws

I noted some of the penalties above, but what is the difference between a class 4 misdemeanor and a class 1 misdemeanor. In Virginia, misdemeanors are classified as 1, 2, 3, or 4. They are all serious to the extent that they leave you with a permanent criminal record if you are convicted. However, in Virginia a class 1 misdemeanor is the most serious and a class 4 misdemeanor is the least serious. Here is the range of punishment under the Virginia drinking laws that give the penalty for underage drinking:

CLASS 1 MISDEMEANOR: 0-12 months in jail, fine of $0-2500, license suspension up to one year

CLASS 2 MISDEMEANOR: 0-6 months in jail, fine of $0-1000, license suspension up to one year

CLASS 3 MISDEMEANOR: fine of up to $500

CLASS 4 MISDEMEANOR: fine of up to $250

Leavitt & Martin Specialize in Helping Clients With Misdemeanors Like Underage Drinking

Drinking is often considered a normal part of the college experience. But the purchase, consumption, or possession of alcohol is illegal in Virginia to anyone under the age of 21. In Virginia, the charge is Underage Possession of Alcohol and is a Class 1 Misdemeanor. The “possession” of alcohol includes alcohol already consumed. Police can prove this by smelling alcohol on the breath or seeing signs of intoxication. Drinking while underage in Virginia is a serious offense. You should not take the charge lightly.

Underage Possession of Alcohol for Ages 18-20

When charged with underage possession of alcohol, a conviction results in a criminal record. The person will not have the ability to have the record expunged. This can have serious ramifications on the career options for a young adult. The penalties for adult underage drinking include:

penalties for underage drinking

  • up to 12 months in jail
  • a fine of $500-$2,500
  • revocation of driver’s license for 6-12 months
  • up to 50 hours of community service
  • substance abuse counseling

These are the maximum penalties allowed under the law. But you should not assume the Court will let you off with a slap on the wrist. If it is not your first offense or you’re facing additional charges (such as disorderly conduct), there could be serious consequences for a momentary lapse in judgment.

First Time Offenders for Underage Drinking Charge

As noted above, the best result is to have a legal defense to your charge. If that is not available, then we try to negotiate a dismissal for underage drinking that does not involve the first offender program. As a last resort, we use the first offender program to dismiss underage drinking charges.

If you have no prior underage possession charges and a clean criminal record, a more lenient sentence may be available to you. There is a mandatory minimum fine of $500. You may still be able to drive on a restricted license, often only to work and school. Virginia also offers a diversionary program that allows first-time offenders to defer a conviction by seeking substance abuse treatment. This program helps young adults maintain a clean criminal record. It is also common for first-time offenders to receive probation until they are 21 years old. It is very important to abide by the terms and conditions of your probation, or you could be subject to the maximum penalties allowed for the original charge.

Recent Cases of Underage Possession of Alcohol Dismissed

How can I get my underage drinking ticket dropped? We can usually get these cases dismissed so they don’t ruin your future. Sometimes we can get the case completely dismissed, or you MAY HAVE A LEGAL DEFENSE.

Minors Charged with Underage Possession of Alcohol

If police catch someone under the age of 18 possessing alcohol, juvenile court will handle the case. A conviction will not stay on his permanent record. However, the penalties for a juvenile are (perhaps surprisingly) strict. They can include:

  • up to 30 days in a juvenile detention center
  • a mandatory six-month suspension of driver’s license
  • mandated alcohol abuse treatment
  • community service
  • probation

The sentence a minor receives for an underage drinking charge will depend on the circumstances of his case. and the discretion of the judge. A skilled criminal defense attorney may be able to negotiate a lighter sentence.

Need Legal Assistance? Call a Virginia Criminal Defense Attorney.

If you or your child is facing underage possession of alcohol charges, it is highly recommended you consult with a criminal defense attorney as soon as possible. An underage possession conviction can have long-term consequences. An experienced attorney can help. The attorneys at Leavitt & Martin PLLC will fight for the very best outcome in your case.

Contact Us

Contact Leavitt & Martin, PLLC. • Free Initial Consultations

Our office hours are 9 a.m. to 5 p.m., Monday through Friday, but you can call anytime, 24 hours a day, and we can often make weekend and evening appointments available.



116-B Walton Park Ln.
Midlothian, VA 23114


312 South Main Street
Emporia, Virginia 23847

Connect with Us