Business & Professions Code § 25661 BP – Possession of a Fake ID by a Minor

Business and Professions Code § 25661 BPC prohibits persons under age 21 (1) from presenting a fake ID to purchase alcohol, or (2) from possessing a false or fraudulent ID. This offense is a misdemeanor usually punished by fines and community service but no actual jail or juvenile hall time.

The full language of the code section reads as follows:

(a) Any person under 21 years of age who presents or offers to any licensee, or agent or employee of a licensee, any written, printed, or photostatic evidence of age and identity which is false, fraudulent or not actually their own for the purpose of ordering, purchasing, attempting to purchase or otherwise procuring or attempting to procure, the serving of any alcoholic beverage, or who possesses any false or fraudulent written, printed, or photostatic evidence of age and identity, is guilty of a misdemeanor and shall be punished by a fine of at least 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 nor more than 32 hours of community service during hours when the person is not employed and is not attending school, or a combination of fine and community service as determined by the court. A second or subsequent violation of this section 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 or is not attending school, or a combination of fine and community service, as the court deems just. 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.

(b) The penalties imposed by this section do not preclude prosecution or the imposition of penalties under any other provision of law.

Examples

• Although only 20, Darius uses his older brother’s ID to try to purchase beer at a liquor store.
• Mike is 19 but uses his 22-year-old friend’s ID to get into a bar.
• Sheila is 17 and uses a fake driver’s license to try to get into a nightclub.

Defenses

Luckily, there are several legal defenses that you can raise. These include showing that you were:

• not a minor;
• not purchasing alcohol; and/or,
• arrested after an unlawful search or seizure.

Penalties

Minor possession of a fake ID is a misdemeanor (as opposed to a California felony or an infraction). A first-time possession is punishable by:

• a maximum fine of $250; and/or,
• performance of between 24 and 32 hours of community service.

A second or subsequent charge is punishable by:

• a maximum fine of $500; and/or,
• performance of between 36 and 48 hours of community service.

Our California criminal defense attorneys will highlight the following in this article:

• 1. Is it a crime for a minor to possess a fake ID?
• 2. How can I fight these charges in court?
  • 2.1. Not a minor
  • 2.2. Not purchasing alcohol
  • 2.3. Unlawful search or seizure
• 3. What are the penalties?
• 4. Related offenses

1. Is it a crime for a minor to possess a fake ID?

Business and Professions Code 25661 BP makes it a crime to possess or present a false identification card if you are under 21 years old.

In particular, you commit this crime if you are under the age of 21 and either:

1. present a false or fraudulent ID to a business for the purpose of ordering, purchasing, or attempting to purchase alcohol; or,
2. possess a false or fraudulent identification card.¹

Most violations of this section involve actual possession. This means you were caught with an ID in your hand or within your reach (such as in a pocket, jacket, or bag).

2. How can I fight these charges in court?

You may challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for you to hire an attorney to get the most effective defense.

Three common defenses are that you:

1. were not a minor;
2. were not purchasing alcohol; and/or,
3. underwent an unlawful search or seizure.

2.1. Not a minor

Recall that Business and Professions Code 25661 only applies to minors. Therefore, it is a perfectly valid defense for you to show that you were 21 years of age or older when an alleged offense occurred.

Please note, though, that if you are 21 or over and are caught with a fake ID, you can still be charged with a crime per California Penal Code 470(b).

2.2. Not purchasing alcohol

Regarding the presentation of a fake ID, you are guilty only if you presented the ID to buy, or attempt to buy, alcohol. A legal defense, then, is to show that you were not using a fake ID to purchase alcohol. For example, maybe you were showing a fake ID to purchase cigarettes.

2.3. Unlawful search or seizure

The Fourth Amendment to the U.S. Constitution declares that we have the right to be free from unreasonable “searches and seizures” by law enforcement. If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

The Fourth Amendment’s rule against unreasonable search and seizures means that police may not search you or your property unless one of the following is true:

1. they have obtained a valid search warrant from a judge, or
2. the search falls within one of a number of exceptions to the warrant requirement recognized by federal and California courts.²

3. What are the penalties?

Violating BPC 25661 is a misdemeanor.³ A first-time violation of this fake ID law is punishable by:

• a maximum fine of $250; and/or,
• between 24 and 32 hours of community service.⁴

A second or subsequent violation of this code section is punishable by:

• a maximum fine of $500; and/or
• between 36 and 48 hours of community service.⁵

4. Related Offenses

There are three crimes related to the possession or presentation of a fake ID by a minor. These are:

1. permitting a minor in a place where alcohol is consumed – BPC 25665;
2. minor in possession of alcohol – BPC 25662; and,
3. soliciting sale of alcohol – BPC 25657(a).

Permitting a minor in a place where alcohol is consumed – BPC 25665

Business and Professions Code 25665 BPC makes it a crime for a minor to be on the premises of a business that is licensed to sell alcohol for consumption on those premises (for example, a bar or nightclub).

BPC 25665 penalizes both the business establishment and the minor.

For a prosecutor to show that a business violated the law, they must prove that the owner of a bar or club:

1. was licensed to sell alcohol for consumption on the premises; and,
2. it allowed a minor under the age of 21 to enter and remain in the bar/club.⁶

For a prosecutor to show that a minor violated the law, they must prove that the minor:

1. was under the age of 21; and,
2. entered and remained in the bar/club without lawful business inside.⁷

The owner of a bar or club that violates BPC 25665 will be charged with a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to six months; and/or,
• a maximum fine of $1,000.⁸

A minor that violates BPC 25665 will be charged with a misdemeanor as well. The crime is punishable by a maximum fine of $200.⁹

Minor in possession of alcohol – BPC 25662

Business and Professions Code 25662 is the California statute governing the possession of alcohol by minors when in a public place.

A prosecutor must prove three things to successfully show that you are violating BPC 25662. These are:

1. You were under the age of 21 (at the time of the incident);
2. You possessed an alcoholic beverage; and,
3. You were on a street, highway, public place, or a place open to the public.¹⁰

A first-time violation of BPC 25662 is treated as a California infraction. The offense is punishable by:

• a fine of $250, or
• 24-32 hours of community service.¹¹

A second or subsequent violation of BPC 25662 is charged as a misdemeanor. The offense is punishable by:

• a maximum fine of $500, and/or
• 36-48 hours of community service.¹²

Soliciting sale of alcohol – BPC 25657(a)

Business and Professions Code 25657(a) is the California statute that makes it a crime for the owner of a bar or club to hire or pay someone to solicit alcohol.

BPC 25657(a) says it is a criminal offense for a bar or club to:

1. employ a person to directly solicit the purchase of alcoholic drinks; or,
2. pay such a person a commission on the sale of alcoholic drinks.¹³

Please note that “solicit,” in the context of this statute, means to urge or request someone to drink alcohol.

A violation of BPC 25657(a) is charged as a misdemeanor. The crime is punishable by:

• county jail time for up to six months; and/or,
• a maximum fine of $1,000.¹⁴

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