Legislative Issue – Youth Access to Alcoholic Beverages and Enforcement of Minors in Possession Crimes.
Initiative:
The Iowa Association of Chiefs of Police and Peace Officers believe in protecting the welfare and future of Iowa Youth. With that the IACP&PO favors strengthening existing laws and prosecution against persons under the age of 21 who are found in possession of or are consuming alcoholic beverages. The IACP&PO believes that there is a need for more clear and decisive legal tools and statuette language for law enforcement officers and prosecutors to help protect Iowa Youth and to deter the availability and access by these young Iowans to alcoholic beverages.
Issue: Possession of Alcohol Under Legal Age while the alcoholic beverage is present in their system.
Currently persons under the age of 21 and specifically persons under the age of 18 in most counties in Iowa cannot be charged or prosecuted for possession of or consumption of alcoholic beverage under age 21 when the alcoholic beverages are possessed only in their bodies. For example law enforcement officers during a routine encounter finds a passenger of a vehicle, under age 21, who shows clues of intoxication or that they have been consuming alcoholic beverages, but is not in immediate possession of an alcoholic beverage, cannot in most counties in Iowa interdict, charge, or refer these minors as risk for prosecution.
While a few county attorneys are taking a more liberal stand of enforcement of possession of alcohol by persons under age 21 by allowing arrest and prosecution for possession of alcohol within the body, most will not allow this or feel that there is any legal standing to do so. Even in these rare circumstance there is no sanctioned element for the consumption of alcoholic beverages by persons under age 21, other than that in public. At issue; no clear legal language either by statute or by case law that allows for charging or prosecuting when the alcoholic beverages are found only within the body or when minors have been consuming alcoholic beverages but not in public. Part of this initiative is the belief by the IACP&PO that the current statute under 123.47 of the Iowa Code needs to include language that allows for such arrest and prosecutions.
In addition, given this scenario above, even if they officers and prosecutors meet the elements of the crime for public intoxication, a suspect cannot be removed from a vehicle by law enforcement and then later charged with public intoxication. This ruling involves case law on expectations of privacy and the concept the car is an extension of one's home.
What the law enforcement officer ends up with is a drunken teenager, no alcoholic beverages in the car, and no laws to enforce, deter, or correct this risky behavior and very dangerous situation. This leaves the law enforcement officer having to take custody of the teenager with their welfare in mind, and hold that teenager later to be released to their parents. Some law enforcement officials refer to this as “baby sitting”. Sometimes these events can take an officer off the street for hours, when there is difficulty finding the parents or the parents live away for the community.
There is also a concern about taking the teenager into custody for their welfare, when no arrestable offense is present could later cause some significant problems for officers and agencies if the underage suspect does not comply with the officers and is injured in anyway trying to be secured. The question remains, what authority does that officer have to detain that underage suspect? If the officer does not detain and later release to the parents, what liability does that officer or agency possess if that underage suspect is injured later as a result of there use of alcoholic beverages?
For example in Poweshiek County a teenager under 18 years of age, is provided alcoholic beverages at home from their parents, legally, due to an exception within the law, and the child then leaves the residence, gets into a vehicle with a sober driver and friend, and is later then contacted by law enforcement officers during a investigation. Now, since the teenager has been drinking, there is a need to insure the safety of that teen by taking custody of them to be later released to a parent. This custody is without any arrest because this most counties in Iowa is not against the law.
There are two public safety issues involved here. First, that fact that is it legal for the parents of a person under age 21 to administer and allow the use of alcoholic beverages by their teens. The second issue is that this teenager can then legally go into public after consuming alcoholic beverages, and not be violating the law as long as they don't show significant clues of intoxication or are passenger in a vehicle.
Another example, in a Grinnell Police Department case, a underaged female claiming to be 18 (she lied- she was 17) received alcoholic beverages illegally from a friend’s parent at a residence. Later while riding as a passenger in a friends vehicle with two other persons under the age 18, their vehicle was stopped after 1200 am for a traffic violation and suspicions the girls were in violation of curfew. The Grinnell Municipal Ordnance on Curfew did not apply to the first female since she claimed to be 18 and provided false information to the officers regarding her identity. The other two underaged suspects in the car (including the driver), were arrested for curfew, taken into custody, and later released to the parents. The first underaged female, although she had been drinking and was over .08% BAC, was released on foot at the scene as there were no charges. Curfew did not apply based upon the officers believing she was a legal adult and did not show any signs of gross intoxication or lack of motor skills. She also could not be arrested for public intoxication because she was removed from the vehicle. If the Officers were allowed to arrest and charge for persons under age 21 with alcoholic beverages solely in their system or for consuming alcoholic beverages, this first female could have been taken into custody, properly identified, and removed from a potentially harmful environment.
Later this fist female subject was charged with providing false information to the officers and the provider of the alcohol beverages was later identified and charged through this investigation. But the concern still remains that an intoxicated 17 year old female was released into a potentially harmful environment because the investigating officers did not have the proper tools to interdict this situation.
Solution: Modify the existing law under 123.47 of the Iowa Code to include clear decisive language applicable to these situations. (See Appendix II for the full legal excerpt of 123.47)
As part of this initiative the IACP&PO would like to see the law under Iowa Code Chapter 123.47 – Possession of Alcoholic Beverages Under Age 21 to include:
A person under the age of 21 who is found under the influence of alcoholic beverages or has been consuming alcoholic beverages, and/or has a blood alcohol content measured in excess of .02 BAC (same as driving under 21), as measured by certified and calibrated law enforcement alcohol measuring devices, is guilty of possession or consumption of alcohol beverages by a minor, a simple misdemeanor.
Persons convicted of these crimes must, and as ordered by the court, and at their expense receive a substance abuse evaluation by a court certified substance abuse agency.
The Michigan Law, that I offer as a comparative example to Iowa Law reads, “Person under the age of 21 shall not Purchase or attempt to Purchase alcoholic liquor, Consume or attempt to Consume alcoholic liquor, Possess or attempt to Possess alcoholic liquor, or have any bodily alcohol content, except….. (See MLC 436.1703)” (See Appendix I for additional information).
Solutions: Develop a law similar to the State of Michigan's, that when a law enforcement officer request a breath sample by preliminary breath test by persons under age 21 and then refuse, they can be found guilty of a simple misdemeanor.
This allows for a law enforcement officer who has reasonable suspicion that the subject under 21 years of age is either intoxicated or has been consuming alcoholic beverage to request a breath specimen to be measure by either a calibrated preliminary breath tester of other approved certified device a breath specimen to determine alcohol consumption or alcohol intoxication. Failure to comply with this request could result in being arrested or a scheduled fine of $100. The State of Michigan has a law similar to this and based upon conversations I have had with enforcement officials, is extremely effective in enforcing under age drinking laws. In appendix I, I have inserted this Michigan law as an example.
In Conclusion:
As stated yearly by the Iowa Governor's Office of Drug Control Policy the access and use of alcoholic beverages by persons age 12 – 17 is still at alarming levels. It is the belief of the Iowa Association of Chiefs of Police and Peace Officers that this initiative will help shore of some significant problems law enforcement officers and prosecutors face in enforcement, deterrence, and identification of youth troubled by controlled substance issues.
It is our hope that these recommended changes in the law may help stem to the flow and ultimately reduce underage access and consumption of alcoholic beverages.
Authored By:
Jeffrey A. Hughes
Vice President
IACP&PO
Appendix I – Michigan Law(s) Regarding Minors in Possession
Section 436.1703
MICHIGAN LIQUOR CONTROL CODE OF 1998 (EXCERPT)
Act 58 of 1998
436.1703 Purchase, consumption, or possession of alcoholic liquor by minor; attempt; violation; fines; sanctions; furnishing fraudulent identification to minor; screening and assessment; chemical breath analysis; notice to parent, custodian, or guardian; construction of section; exceptions; "any bodily alcohol content" defined.
Sec. 703.
(1) A minor shall not purchase or attempt to purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, possess or attempt to possess alcoholic liquor, or have any bodily alcohol content, except as provided in this section. A minor who violates this subsection is guilty of a misdemeanor punishable by the following fines and sanctions and is not subject to the penalties prescribed in section 909:
(a) For the first violation a fine of not more than $100.00, and may be ordered to participate in substance abuse prevention services or substance abuse treatment and rehabilitation services as defined in section 6107 of the public health code, 1978 PA 368, MCL 333.6107, and designated by the administrator of substance abuse services, and may be ordered to perform community service and to undergo substance abuse screening and assessment at his or her own expense as described in subsection (4).
(b) For a violation of this subsection following a prior conviction or juvenile adjudication for a violation of this subsection, section 33b(1) of former 1933 (Ex Sess) PA 8, or a local ordinance substantially corresponding to this subsection or section 33b(1) of former 1933 (Ex Sess) PA 8, by imprisonment for not more than 30 days but only if the minor has been found by the court to have violated an order of probation, failed to successfully complete any treatment, screening, or community service ordered by the court, or failed to pay any fine for that conviction or juvenile adjudication, a fine of not more than $200.00, or both, and may be ordered to participate in substance abuse prevention services or substance abuse treatment and rehabilitation services as defined in section 6107 of the public health code, 1978 PA 368, MCL 333.6107, and designated by the administrator of substance abuse services, to perform community service, and to undergo substance abuse screening and assessment at his or her own expense as described in subsection (4).
(c) For a violation of this subsection following 2 or more prior convictions or juvenile adjudications for a violation of this subsection, section 33b(1) of former 1933 (Ex Sess) PA 8, or a local ordinance substantially corresponding to this subsection or section 33b(1) of former 1933 (Ex Sess) PA 8, by imprisonment for not more than 60 days but only if the minor has been found by the court to have violated an order of probation, failed to successfully complete any treatment, screening, or community service ordered by the court, or failed to pay any fine for that conviction or juvenile adjudication, a fine of not more than $500.00, or both, and may be ordered to participate in substance abuse prevention services or substance abuse treatment and rehabilitation services as defined in section 6107 of the public health code, 1978 PA 368, MCL 333.6107, and designated by the administrator of substance abuse services, to perform community service, and to undergo substance abuse screening and assessment at his or her own expense as described in subsection (4).
(2) A person who furnishes fraudulent identification to a minor, or notwithstanding subsection (1) a minor who uses fraudulent identification to purchase alcoholic liquor, is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, or both.
(3) When an individual who has not previously been convicted of or received a juvenile adjudication for a violation of subsection (1) pleads guilty to a violation of subsection (1) or offers a plea of admission in a juvenile delinquency proceeding for a violation of subsection (1), the court, without entering a judgment of guilt in a criminal proceeding or a determination in a juvenile delinquency proceeding that the juvenile has committed the offense and with the consent of the accused, may defer further proceedings and place the individual on probation upon terms and conditions that include, but are not limited to, the sanctions set forth in subsection (1)(a), payment of the costs including minimum state cost as provided for in section 18m of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.18m, and section 1j of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.1j, and the costs of probation as prescribed in section 3 of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 771.3. Upon violation of a term or condition of probation or upon a finding that the individual is utilizing this subsection in another court, the court may enter an adjudication of guilt, or a determination in a juvenile delinquency proceeding that the individual has committed the offense, and proceed as otherwise provided by law. Upon fulfillment of the terms and conditions of probation, the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt or without a determination in a juvenile delinquency proceeding that the individual has committed the offense and is not a conviction or juvenile adjudication for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions or juvenile adjudications under subsection (1)(b) and (c). There may be only 1 discharge and dismissal under this subsection as to an individual. The court shall maintain a nonpublic record of the matter while proceedings are deferred and the individual is on probation and if there is a discharge and dismissal under this subsection. The secretary of state shall retain a nonpublic record of a plea and of the discharge and dismissal under this subsection. These records shall be furnished to any of the following:
(a) To a court, prosecutor, or police agency upon request for the purpose of determining if an individual has already utilized this subsection.
(b) To the department of corrections, a prosecutor, or a law enforcement agency, upon the department's, a prosecutor's, or a law enforcement agency's request, subject to all of the following conditions:
(i) At the time of the request, the individual is an employee of the department of corrections, the prosecutor, or the law enforcement agency, or an applicant for employment with the department of corrections, the prosecutor, or the law enforcement agency.
(ii) The record is used by the department of corrections, the prosecutor, or the law enforcement agency only to determine whether an employee has violated his or her conditions of employment or whether an applicant meets criteria for employment.
(4) The court may order the person convicted of violating subsection (1) to undergo screening and assessment by a person or agency as designated by the substance abuse coordinating agency as defined in section 6103 of the public health code, 1978 PA 368, MCL 333.6103, in order to determine whether the person is likely to benefit from rehabilitative services, including alcohol or drug education and alcohol or drug treatment programs. The court may order a person subject to a conviction or juvenile adjudication of, or placed on probation regarding, a violation of subsection (1) to submit to a random or regular preliminary chemical breath analysis. In the case of a minor under 18 years of age not emancipated under 1968 PA 293, MCL 722.1 to 722.6, the parent, guardian, or custodian may request a random or regular preliminary chemical breath analysis as part of the probation.
(5) The secretary of state shall suspend the operator's or chauffeur's license of an individual convicted of violating subsection (1) or (2) as provided in section 319 of the Michigan vehicle code, 1949 PA 300, MCL 257.319.
(6) A peace officer who has reasonable cause to believe a minor has consumed alcoholic liquor or has any bodily alcohol content may require the person to submit to a preliminary chemical breath analysis. A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis. The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor or had any bodily alcohol content. A minor who refuses to submit to a preliminary chemical breath test analysis as required in this subsection is responsible for a state civil infraction and may be ordered to pay a civil fine of not more than $100.00.
(7) A law enforcement agency, upon determining that a person less than 18 years of age who is not emancipated under 1968 PA 293, MCL 722.1 to 722.6, allegedly consumed, possessed, purchased alcoholic liquor, attempted to consume, possess, or purchase alcoholic liquor, or had any bodily alcohol content in violation of subsection (1) shall notify the parent or parents, custodian, or guardian of the person as to the nature of the violation if the name of a parent, guardian, or custodian is reasonably ascertainable by the law enforcement agency. The notice required by this subsection shall be made not later than 48 hours after the law enforcement agency determines that the person who allegedly violated subsection (1) is less than 18 years of age and not emancipated under 1968 PA 293, MCL 722.1 to 722.6. The notice may be made by any means reasonably calculated to give prompt actual notice including, but not limited to, notice in person, by telephone, or by first-class mail. If an individual less than 17 years of age is incarcerated for violating subsection (1), his or her parents or legal guardian shall be notified immediately as provided in this subsection.
(8) This section does not prohibit a minor from possessing alcoholic liquor during regular working hours and in the course of his or her employment if employed by a person licensed by this act, by the commission, or by an agent of the commission, if the alcoholic liquor is not possessed for his or her personal consumption.
(9) This section does not limit the civil or criminal liability of the vendor or the vendor's clerk, servant, agent, or employee for a violation of this act.
(10) The consumption of alcoholic liquor by a minor who is enrolled in a course offered by an accredited postsecondary educational institution in an academic building of the institution under the supervision of a faculty member is not prohibited by this act if the purpose of the consumption is solely educational and is a requirement of the course.
(11) The consumption by a minor of sacramental wine in connection with religious services at a church, synagogue, or temple is not prohibited by this act.
(12) Subsection (1) does not apply to a minor who participates in either or both of the following:
(a) An undercover operation in which the minor purchases or receives alcoholic liquor under the direction of the person's employer and with the prior approval of the local prosecutor's office as part of an employer-sponsored internal enforcement action.
(b) An undercover operation in which the minor purchases or receives alcoholic liquor under the direction of the state police, the commission, or a local police agency as part of an enforcement action unless the initial or contemporaneous purchase or receipt of alcoholic liquor by the minor was not under the direction of the state police, the commission, or the local police agency and was not part of the undercover operation.
(13) The state police, the commission, or a local police agency shall not recruit or attempt to recruit a minor for participation in an undercover operation at the scene of a violation of subsection (1), section 801(2), or section 701(1).
(14) In a criminal prosecution for the violation of subsection (1) concerning a minor having any bodily alcohol content, it is an affirmative defense that the minor consumed the alcoholic liquor in a venue or location where that consumption is legal.
(15) As used in this section, "any bodily alcohol content" means either of the following:
(a) An alcohol content of 0.02 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(b) Any presence of alcohol within a person's body resulting from the consumption of alcoholic liquor, other than consumption of alcoholic liquor as a part of a generally recognized religious service or ceremony.
History: 1998, Act 58, Imd. Eff. Apr. 14, 1998 ;-- Am. 1998, Act 353, Eff. Oct. 1, 1999 ;-- Am. 1999, Act 53, Eff. Oct. 1, 1999 ;-- Am. 2004, Act 63, Eff. Sept. 1, 2004 ;-- Am. 2006, Act 443, Imd. Eff. Nov. 27, 2006
© 2007 Legislative Council, State of Michigan
Dennis D. Bryde, Ph.Denmorter., Director/Professor
Criminal Justice Training Center, MLTAI
Emeritus, Michigan State University
11155 South Beardslee Road, Perry, MI 48872
direct: 517 881-6636 email: bryde@msu.edu
fax: 517 675-7747 office: 517 675-5949
Website: www.freewebs.com/bryde
Appendix II – Iowa Code Chapter 123.47 – Underage Possession of Alcoholic Beverages
123.47 PERSONS UNDER LEGAL AGE -- PENALTY.