About This Policy: Underage Drinking: Possession/Consumption/Internal Possession of Alcohol
This policy topic is included in the APIS Highlight on Underage Drinking section. The Highlight's Overview of Underage Drinking Policy in the United States provides additional context that may be helpful in understanding this policy topic. State-by-State summaries of eleven underage drinking policy topics are available in the State Profiles of Underage Drinking Laws section. Maps and charts for all of these policy topics are collected on a single page to provide a more comprehensive graphical overview of underage policies.
Period Covered: 1/1/1998 through 1/1/2022
This policy topic covers laws that prohibit underage alcohol possession, consumption, or internal possession (see Definitions), together with various statutory exceptions to these laws.
All States prohibit possession of alcoholic beverages (with certain exceptions) by those under age 21. In addition, most but not all States have statutes that specifically prohibit consumption of alcoholic beverages by those under the age of 21. Many States that prohibit possession and/or consumption apply various statutory exceptions to these provisions (see below).
States that prohibit underage consumption may allow different exceptions for consumption than those that apply to underage possession.
In recent years, a number of States have passed laws prohibiting the "internal possession" of alcohol by persons under 21 years of age. These provisions typically require evidence of alcohol in the minor's body, but do not require any specific evidence of possession or consumption. Internal possession laws are especially useful to law enforcement in making arrests or issuing citations when breaking up underage drinking parties. Internal possession laws allow officers to bring charges against underage persons who are neither holding nor drinking alcoholic beverages in the presence of law enforcement officers. As with laws prohibiting underage possession and consumption, States that prohibit internal possession may apply various statutory exceptions to these provisions (see below).
APIS codes a State as having an internal possession law if its statutes or regulations prohibit a person under the age of 21 from having alcohol in her or his system as determined by a blood, breath or urine test. Laws that punish persons under the age of 21 for displaying "indicators of consumption," or for "exhibiting the effects" of having consumed alcohol, are not considered to be internal possession laws for the purpose of APIS coding.
Although all States prohibit possession of alcohol by minors, some States do not specifically prohibit underage alcohol consumption. In addition, States that prohibit underage possession and/or consumption may or may not address the issue of internal possession.
NOTE: The APIS tables for Underage Possession/Consumption/Internal Possession of Alcohol report data on prohibitions of three closely related behaviors: 1) Possession of alcoholic beverages, 2) Consumption of alcoholic beverages, and 3) Internal Possession of alcoholic beverages. For each state, each of these behaviors is addressed in a separate row of the APIS tables.
Some States allow an exception to possession, consumption, or internal possession prohibitions when a family member consents and/or is present. States vary widely in terms of which relatives may consent or must be present for this exception to apply and in what circumstances the exception applies. Sometimes a reference is made simply to "family" or "family member" without further elaboration.
APIS codes two types of family member exceptions. The first is an exception for either the consent or presence of a parent or guardian. The second is an exception for either the consent or presence of the spouse of a married minor.
When a statute or regulation is unclear as to which family members must be present and/or consent, APIS assumes that parents, guardians, and spouses are all included. Further detail and explanations for such statutes and regulations are provided in Row and/or Jurisdiction Notes in the comparison tables. Some jurisdictions limit family member exceptions to specific locations. For example, minors might be allowed to possess or consume alcohol with parental consent in their parents' residence, but not elsewhere.
Some States allow exceptions to possession, consumption, or internal possession prohibitions on private property. States vary in the extent of the private property exception, which may extend to all private locations, private residences only, or in the home of a parent or guardian only. In some jurisdictions, a location exception is conditional on the presence and/or consent of a parent, legal guardian, or spouse.
With respect specifically to consumption laws, some States prohibit underage consumption only on licensed premises. Because the number of underage persons who drink on licensed premises is small, APIS codes such States as having no law prohibiting consumption.
|Guardian||Varies from State to State, but generally refers to one who has the legal authority and duty to care for another's (in this case, a minor's) person or property|
|Internal Possession||A minor-in-possession charge that requires evidence of alcohol in the minor's body, as determined by a blood, breath or urine test, but that does not otherwise require any specific evidence of possession or consumption (for example through witness observation or an admission on the part of the minor)|
|Minor||A person under the age of 21 years|
Explanatory Notes and Limitations Specifically Applicable to Underage: Possession
- APIS does not assume that minors are allowed to possess alcohol in a jurisdiction simply because that jurisdiction allows parental furnishing to minors.
- Provisions addressing law enforcement-related exceptions to underage possession are covered in the policy topic: Underage Purchase of Alcohol.
Explanatory Notes and Limitations Specifically Applicable to Underage: Consumption
- APIS does not address provisions that prohibit underage consumption only on licensed premises.
- APIS does not assume that minors are allowed to consume alcohol in a jurisdiction simply because that jurisdiction allows parental furnishing to minors.
- APIS distinguishes prohibitions on underage consumption from prohibitions on underage intoxication. States are not coded as prohibiting underage consumption solely on the basis of provisions that prohibit underage intoxication.
Explanatory Notes and Limitations Specifically Applicable to Underage: Internal Possession
- APIS does not assume that a jurisdiction allows a minor to have alcohol in his or her system simply because that jurisdiction allows parental furnishing to minors.
- APIS considers a State to have an internal possession law if it has a statute or regulation prohibiting a minor from having alcohol in his or her system, as determined by a blood, breath, or urine test. In contrast to such objective tests, laws that punish minors for displaying "indicators of consumption," for having alcohol "in the person’s body," or for "exhibiting the effects" of having consumed alcohol, are not coded as prohibiting internal possession for APIS purposes.
Explanatory Notes and Limitations for Underage: Possession, Consumption, Internal Possession, Purchase and Furnishing
- Some States' provisions do not apply reciprocal exceptions to both the provider of alcohol and the minor (e.g., California permits minors to possess alcohol in private locations, but it is illegal for anyone to provide alcohol to minors in any setting).
- Some States have exceptions for beverages containing less than one-half of one percent alcohol by volume. APIS does not address these types of provisions.
- Laws that allow individuals under 21 years of age to purchase, consume, possess, be furnished with, or have alcohol in their systems, are included as exceptions, even if the exception is limited to 18+ year olds or to a certain type of alcohol (e.g., light wine or beer). Such conditions and limitations that apply to exceptions identified in the comparison tables are described in Row Notes and/or Jurisdiction Notes accessible from the body of the table via links in the Jurisdiction column.
- Some State statutes and regulations provide exceptions for minors married to a "legal age spouse" while others simply refer to a "spouse." APIS codes both of these wordings as exceptions under "spouse." In addition, statutes or regulations may provide an exception when a "family member" or "relative" is present or consents. When a statute or regulation is unclear as to which family members or relatives must be present and/or consent, APIS assumes that parents, guardians, and spouses are all included. A Row or Jurisdiction Note is included in such instances.
- This review does not include the following items related to underage drinking and access to alcohol:
- State and Federal laws related to enforcement and penalties.
- Provisions specific to beer containing not more than 3.2 percent alcohol by weight.
- Provisions that are specific to parks (other than national parks as described on the Federal Law page).
- Provisions that are specific to school or university property.
- Separate laws for the military or for Indian reservations. Approximately 200 tribes across the Nation have jurisdiction and responsibility for laws affecting their reservations. Many have passed their own laws regarding underage drinking and access to alcohol.
Explanatory Notes and Limitations Applicable to All APIS Policy Topics
- State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. For more information on the preemption doctrine, see the About Alcohol Policy page. APIS does not document policies established by local governments.
- In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables.
- APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research.
- Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria.
- The operation or enforcement of statutes or regulations affecting the policies addressed on APIS may have been suspended or modified by executive or administrative orders issued in response to the COVID-19 pandemic. With the exception of the COVID-19 Digest and Dataset, APIS research does not address these orders or the effects they may have on the policies covered by APIS.
- Policy changes in APIS are presented as of the date these changes take effect as law. Users should be aware that in some situations there may be a delay between the effective date of a law and the time a corresponding policy change occurs in practice. Because APIS research is based entirely on primary legal source materials (codified statutes and regulations and, on rare occasions, published court opinions), APIS is unable to accurately determine when policy changes may appear in practice.
- If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute.
- A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column.
(Policies in effect on: 1/1/2022)
The 21st Amendment to the Constitution of the United States provides each State with the primary authority to regulate the sale and distribution of alcoholic beverages within its borders. Courts have provided varying interpretations of the extent of this authority, particularly its interaction with the Interstate Commerce Clause of the Constitution. For more information about the 21st Amendment and the Interstate Commerce Clause, see the About Alcohol Policy section of the APIS Web Site.
The 1984 National Minimum Drinking Age Act, [23 U.S.C. § 158], requires that States prohibit persons under 21 years of age from purchasing or publicly possessing alcoholic beverages as a condition of receiving State highway funds. A Federal regulation that interprets the Act excludes from the definition of "public possession," possession "for an established religious purpose; when accompanied by a parent, spouse or legal guardian age 21 or older; for medical purposes when prescribed or administered by a licensed physician, pharmacist, dentist, nurse, hospital or medical institution; in private clubs or establishments; or to the sale, handling, transport, or service in dispensing of any alcoholic beverage pursuant to lawful employment of a person under the age of twenty-one years by a duly licensed manufacturer, wholesaler, or retailer of alcoholic beverages." [23 C.F.R. § 1208.3]
Generally, minimum drinking age laws on Federal properties are the same as the State where such property is located, with some exceptions for military installations.
The National Park Service prohibits possession of alcohol by a minor or furnishing alcohol to a minor, except where allowed by State law. [36 C.F.R. § 2.35] This regulation also provides that "[i]n a State where a lower minimum age is established, that age limit will apply. . . ."
Similarly, the minimum age to purchase, possess or consume alcoholic beverages on military installations is the same as the State where the installation is located, but this requirement may be waived by the commanding officer of a military installation in special circumstances. [10 U.S.C. § 2683] Moreover, if the military installation is located in more than one State or within one State but within 50 miles of another State, Mexico or Canada, the minimum age may be set at the lowest minimum drinking age.
There is no Federal law specific to underage drinking and access to alcohol on Indian reservations. Indian tribes are domestic dependent sovereigns that have the right of self-government. As such, approximately 200 tribes across the nation have enacted their own laws for underage drinking and access to alcohol.
FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS
23 U.S.C. § 158
United States Code
Title 23 - HIGHWAYS
CHAPTER 1 - FEDERAL-AID HIGHWAYS
§ 158. National minimum drinking age
- (a) Withholding of Funds for Noncompliance.—
- (1) In general.—The Secretary shall withhold 10 per centum of the amount required to be apportioned to any State under each of sections 104(b)(1), 104(b)(3), and 104(b)(4) of this title on the first day of each fiscal year after the second fiscal year beginning after September 30, 1985, in which the purchase or public possession in such State of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.
- (2) State grandfather law as complying.—If, before the later of (A) October 1, 1986, or (B) the tenth day following the last day of the first session the legislature of a State convenes after the date of the enactment of this paragraph, such State has in effect a law which makes unlawful the purchase and public possession in such State of any alcoholic beverage by a person who is less than 21 years of age (other than any person who is 18 years of age or older on the day preceding the effective date of such law and at such time could lawfully purchase or publicly possess any alcoholic beverage in such State), such State shall be deemed to be in compliance with paragraph (1) in each fiscal year in which such law is in effect.
- (b) Effect of Withholding of Funds.—No funds withheld under this section from apportionment to any State after September 30, 1988, shall be available for apportionment to that State.
- (c) Alcoholic Beverage Defined.—As used in this section, the term “alcoholic beverage” means—
- (1) beer as defined in section 5052(a) of the Internal Revenue Code of 1986,
- (2) wine of not less than one-half of 1 per centum of alcohol by volume, or
- (3) distilled spirits as defined in section 5002(a)(8) of such Code.
23 C.F.R. § 1208.3
Code of Federal Regulations
Title 23 - Highways
CHAPTER II - NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION AND FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
SUBCHAPTER B - GUIDELINES
PART 1208 - NATIONAL MINIMUM DRINKING AGE
§ 1208.3. Definitions
As used in this part:
Alcoholic beverage means beer, distilled spirits and wine containing one-half of one percent or more of alcohol by volume. Beer includes, but is not limited to, ale, lager, porter, stout, sake, and other similar fermented beverages brewed or produced from malt, wholly or in part or from any substitute therefor. Distilled spirits include alcohol, ethanol or spirits or wine in any form, including all dilutions and mixtures thereof from whatever process produced.
Public possession means the possession of any alcoholic beverage for any reason, including consumption on any street or highway or in any public place or in any place open to the public (including a club which is de facto open to the public). The term does not apply to the possession of alcohol for an established religious purpose; when accompanied by a parent, spouse or legal guardian age 21 or older; for medical purposes when prescribed or administered by a licensed physician, pharmacist, dentist, nurse, hospital or medical institution; in private clubs or establishments; or to the sale, handling, transport, or service in dispensing of any alcoholic beverage pursuant to lawful employment of a person under the age of twenty-one years by a duly licensed manufacturer, wholesaler, or retailer of alcoholic beverages.
Purchase means to acquire by the payment of money or other consideration.
36 C.F.R. § 2.35
Code of Federal Regulations
Title 36 - Parks, Forests, and Public Property
CHAPTER I - NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR
PART 2 - RESOURCE PROTECTION, PUBLIC USE AND RECREATION
§ 2.35. Alcoholic beverages and controlled substances
- (a) Alcoholic beverages.
- (1) The use and possession of alcoholic beverages within park areas is allowed in accordance with the provisions of this section.
- (2) The following are prohibited:
- (i) The sale or gift of an alcoholic beverage to a person under 21 years of age, except where allowed by State law. In a State where a lower minimum age is established, that age limit will apply for purposes of this subparagraph.
- (ii) The possession of an alcoholic beverage by a person under 21 years of age, except where allowed by State law. In a State where a lower minimum age is established, that age will apply for purposes of this subparagraph.
- (3)(i) The superintendent may close all or a portion of a public use area or public facility within a park area to the consumption of alcoholic beverages and/or to the possession of a bottle, can or other receptacle containing an alcoholic beverage that is open, or that has been opened, or whose seal is broken or the contents of which have been partially removed. Provided however, that such a closure may only be implemented following a determination made by the superintendent that:
- (A) The consumption of an alcoholic beverage or the possession of an open container of an alcoholic beverage would be inappropriate considering other uses of the location and the purpose for which it is maintained or established; or
- (B) Incidents of aberrant behavior related to the consumption of alcoholic beverages are of such magnitude that the diligent application of the authorities in this section and §§ 1.5 and 2.34 of this chapter, over a reasonable time period, does not alleviate the problem.
- (ii) A closure imposed by the superintendent does not apply to an open container of an alcoholic beverage that is stored in compliance with the provisions of § 4.14 of this chapter.
- (iii) Violating a closure imposed pursuant to this section is prohibited.
- (b) Controlled substances. The following are prohibited:
- (1) The delivery of a controlled substance, except when distribution is made by a practitioner in accordance with applicable law. For the purposes of this paragraph, delivery means the actual, attempted or constructive transfer of a controlled substance whether or not there exists an agency relationship.
- (2) The possession of a controlled substance, unless such substance was obtained by the possessor directly, or pursuant to a valid prescription or order, from a practitioner acting in the course of professional practice or otherwise allowed by Federal or State law.
- (c) Presence in a park area when under the influence of alcohol or a controlled substance to a degree that may endanger oneself or another person, or damage property or park resources, is prohibited.
10 U.S.C. § 2683
United States Code
Title 10 - ARMED FORCES
Subtitle A - General Military Law
PART IV - SERVICE, SUPPLY, AND PROCUREMENT
CHAPTER 159 - REAL PROPERTY; RELATED PERSONAL PROPERTY; AND LEASE OF NON-EXCESS PROPERTY
§ 2683. Relinquishment of legislative jurisdiction; minimum drinking age on military installations
- (a) Notwithstanding any other provision of law, the Secretary concerned may, whenever he considers it desirable, relinquish to a State, or to a Commonwealth, territory, or possession of the United States, all or part of the legislative jurisdiction of the United States over lands or interests under his control in that State, Commonwealth, territory, or possession. Relinquishment of legislative jurisdiction under this section may be accomplished (1) by filing with the Governor (or, if none exists, with the chief executive officer) of the State, Commonwealth, territory, or possession concerned a notice of relinquishment to take effect upon acceptance thereof, or (2) as the laws of the State, Commonwealth, territory, or possession may otherwise provide.
- (b) The authority granted by subsection (a) is in addition to and not instead of that granted by any other provision of law.
- (c)(1) Except as provided in paragraphs (2) and (3), the Secretary concerned shall establish and enforce as the minimum drinking age on a military installation located in a State the age established by the law of that State as the State minimum drinking age.
- (2)(A) In the case of a military installation located—
- (i) in more than one State; or
- (ii) in one State but within 50 miles of another State or Mexico or Canada,
- the Secretary concerned may establish and enforce as the minimum drinking age on that military installation the lowest applicable age.
- (B) In subparagraph (A), the term “lowest applicable age” means the lowest minimum drinking age established by the law—
- (i) of a State in which a military installation is located; or
- (ii) of a State or jurisdiction of Mexico or Canada that is within 50 miles of such military installation.
- (3)(A) The commanding officer of a military installation may waive the requirement of paragraph (1) if such commanding officer determines that the exemption is justified by special circumstances.
- (B) The Secretary of Defense shall define by regulations what constitute special circumstances for the purposes of this paragraph.
- (4) In this subsection:
- (A) The term “State” includes the District of Columbia.
- (B) The term “minimum drinking age” means the minimum age or ages established for persons who may purchase, possess, or consume alcoholic beverages.
- (2)(A) In the case of a military installation located—
Source for all citations on this page: www.govinfo.gov/, a service of the U.S. Government Publishing Office (GPO). Excerpts from the United States Code are current as of 2020. Excerpts from the Code of Federal Regulations are current as of 2022. Excerpts from Public Laws of Congress are current as of the year of enactment. The GPO’s Public Domain & Copyright Notice is available at https://www.govinfo.gov/about/policies#copyright .
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