Question: My daughter was in a car that was pulled over and one of the passengers had been drinking.  When the car was pulled over, it was searched and there were several unopened beers present. 

My daughter was being driven to a restaurant from school and did not know alcohol was present in the vehicle when she entered.  All of the passengers were charged with MIP.  3 of them have already pleaded guilty.

Is she automatically guilty of MIP if she is in proximity of alcohol?

Answer: Absolutely Not. And I don’t just mean that in the ‘gut instinct’ criminal defense lawyer ‘no-one-is-automatically-guilty’ of anything way. There’s more to it than that.

To prove any charge involving possession, whether it’s for a minor and alcohol, or an adult and marijuana, cocaine, etc., the State needs to prove that the defendant knowingly or intentionally possessed the contraband.

If a jury, or a judge in a bench trial, believes that the accused did not knowing possess the substance they are charged with possessing, they will be duty bound to acquit.

On a charge that is ‘only a Class C misdemeanor,’ it is sometimes easier, and undoubtedly less expensive, to sign up for a deferred disposition, than it is to hire a lawyer to go to trial.

But on cases like Class B misdemeanor Possession of Marijuana (or higher felony possession charges), where you need a defense lawyer, unknowing possession is always a valid defense.

See also:  Jury Selection and the Unwitting Possession Defense and Definition of Possession in the Texas Penal Code