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8
Effectiveness of Sanctions and Law Enforcement Practices Targeted at Underage Drinking Not Involving Operation of a Motor Vehicle

Thomas L. Hafemeister and Shelly L. Jackson1

Underage drinking is pervasive in the United States (see Flewelling, Paschall, and Ringwalt, 2002). This chapter focuses on the effectiveness of sanctions and law enforcement practices intended to deter youth from purchasing, possessing, or consuming alcohol, or from using misrepresentation to purchase alcohol.2 The first section of this chapter is divided into three parts: (1) a brief review of relevant federal, state, and local laws, (2) a review of related law enforcement practices, and (3) a review of the sanctions targeted at underage drinking and their effectiveness. The second section of this report briefly reviews (1) federal and state laws pertaining to the responses of elementary and secondary schools to underage drinking, (2) germane elementary through secondary school policies and sanctions, and (3) the effectiveness of these policies and sanctions in curbing underage drinking.

1  

Opinions and points of view expressed in this document are those of the author and do not necessarily reflect the official position of the U.S. Department of Justice.

2  

This chapter is not intended to address policies designed to prevent driving by youth while under the influence of alcohol or supply side policies intended to deter vendors from selling alcohol to youth.



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Reducing Underage Drinking: A Collective Responsibility 8 Effectiveness of Sanctions and Law Enforcement Practices Targeted at Underage Drinking Not Involving Operation of a Motor Vehicle Thomas L. Hafemeister and Shelly L. Jackson1 Underage drinking is pervasive in the United States (see Flewelling, Paschall, and Ringwalt, 2002). This chapter focuses on the effectiveness of sanctions and law enforcement practices intended to deter youth from purchasing, possessing, or consuming alcohol, or from using misrepresentation to purchase alcohol.2 The first section of this chapter is divided into three parts: (1) a brief review of relevant federal, state, and local laws, (2) a review of related law enforcement practices, and (3) a review of the sanctions targeted at underage drinking and their effectiveness. The second section of this report briefly reviews (1) federal and state laws pertaining to the responses of elementary and secondary schools to underage drinking, (2) germane elementary through secondary school policies and sanctions, and (3) the effectiveness of these policies and sanctions in curbing underage drinking. 1   Opinions and points of view expressed in this document are those of the author and do not necessarily reflect the official position of the U.S. Department of Justice. 2   This chapter is not intended to address policies designed to prevent driving by youth while under the influence of alcohol or supply side policies intended to deter vendors from selling alcohol to youth.

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Reducing Underage Drinking: A Collective Responsibility LAWS AND ORDINANCES PROHIBITING UNDERAGE POSSESSION, CONSUMPTION, AND PURCHASE OF ALCOHOL AND RELATED USE OF FALSE IDENTIFICATION Federal Law The National Minimum Drinking Age Act of 1984 (23 USCA §158) requires states to adopt a national minimum drinking age of 21 for “purchase or public possession” of alcohol as a condition for a state’s receipt of federal highway funds. The law has had a sizable effect in that, currently, all 50 states and the District of Columbia have a minimum drinking age law (MDAL) that sets the minimum drinking age at 21 (Office of Inspector General [OIG], 1991). Research has found that this change in MDALs resulted in a decrease in the number of deaths of youth associated with drinking and driving (O’Malley and Wagenaar, 1991; U.S. General Accounting Office, 1987; Jones, Piper, and Robertson, 1992); but there is little research on its impact on other aspects of underage drinking (e.g., possession, consumption, purchase, misrepresentation). State Laws Basic alcohol control policies are established at the state level. States vary considerably in how they have crafted laws related to underage purchase of alcohol (i.e., purchasing alcohol from retailers), possession (i.e., carrying or handling alcohol), consumption (i.e., the drinking of alcohol), and misrepresentation (i.e., lying about one’s age or using false identification to purchase alcohol) (Pacific Institute for Research and Evaluation [PIRE], 2000). For example, according to MADD (2002), 34 states and the District of Columbia have a law prohibiting youth consumption of alcohol, 40 states have a law against the use of false identification to purchase alcohol, and 38 states and the District of Columbia have a law that penalizes an attempt by a youth to purchase alcohol. All 50 states and the District of Columbia have a law that sanctions the actual underage purchase of alcohol (MADD, 2002). Forty-six states and the District of Columbia have statutes prohibiting the possession of alcohol by underage persons. Although not all states prohibit each of these activities, namely, purchase, possession, consumption, and misrepresentation, many do, and the President’s Commission on Model State Drug Laws (1993) recommends that states adopt laws that prohibit all of them.3 3   Discussion of motor vehicle-related offenses is beyond the purview of this chapter. However, two related laws may be relevant to this chapter. Open container laws make it an offense to possess an open container of an alcoholic beverage in the passenger compartment

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Reducing Underage Drinking: A Collective Responsibility For each particular alcohol violation, states’ underage drinking laws either stipulate a specific sanction or establish a range of available sanctions. The nature of these sanctions will be discussed more fully, including whether they should be criminal or noncriminal in nature. It is worth noting, however, that the severity of sanctions varies considerably, from relatively minor fines of $50 to $100 to incarceration (PIRE, 1999). Between these extremes can be found various intermediate sanctions such as required community service, mandated alcohol assessment and treatment, and driver’s license suspension or revocation. In addition, states vary in whether they impose a graduated series of sanctions that attempt to increase the severity of sanctions for subsequent offenses. There are some fairly universal exceptions to the underage drinking laws that some commentators refer to as loopholes (OIG, 1991). For example, a substantial number of states permit youth to possess and consume alcohol on private property, although the presence or consent of their parents is often required (see Table 8-1). Similarly, roughly half permit youth to drink or handle alcohol when the youth’s parent is involved, although many of these states confine this activity to private property (see Table 8-1). Other exceptions include allowing youth to enter an establishment that serves alcohol when accompanied by a parent/guardian (e.g., ARIZ. REV. STAT. § 4-244 [2002]) and permitting youth to handle alcohol when it is a requirement of employment (e.g., in grocery stores, restaurants) (e.g., ME. REV. STAT. ANN. tit. 28-A, § 2051 [2002]). Youth also may be exempt when they are purchasing alcohol for their parents (e.g., IDAHO CODE § 23-1334 [2002]). Finally, youth may be exempt from these laws when the possession or consumption of alcohol is related to a religious practice (e.g., MICH. COMP. LAWS § 436.1703 [2002]) or for a medical purpose (e.g., ARK. CODE ANN. § 04.16.051 [2002]). Table 8-1 provides excerpts of the statutory language used to establish the private property and parental involvement exceptions.     of a motor vehicle. Similarly, anticonsumption laws make it an offense to consume alcoholic beverages in the passenger compartment of a motor vehicle (National Highway Traffic Safety Administration/National Institute on Alcohol Abuse and Alcoholism [NHTSA/NIAAA], 1999). Although these laws are used primarily in conjunction with the operation of a motor vehicle and drunk driving, they can encompass nondriving scenarios such as when youth consume alcohol in a stationary motor vehicle. Because underage drinking often occurs in remote locations, such as parks and beaches (Mayer, Forster, Murray, and Wagenaar, 1998), a stationary motor vehicle may be where youth are found to be drinking and these laws may thus become the means for applying sanctions targeted at underage drinking unrelated to the operation of a motor vehicle.

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Reducing Underage Drinking: A Collective Responsibility TABLE 8-1 State Summary of Private Property and Parental Involvement Exceptions to Underage Drinking Offenses State Private Property Exceptions Exceptions When Parents Are Involved Alabama No exception provided No exception provided Alaska No exception provided No exception provided Arizona No exception provided No exception provided Arkansas No exception provided This section does not prohibit the furnishing or delivery of an alcoholic beverage (1) by a parent to the parent’s child, … if the furnishing or delivery occurs off licensed premises; … (ARK. CODE ANN. § 04.16.051[b][1]) California [prohibits] … any alcoholic beverage in his or her possession on any street or highway or in any public place or in any place open to the public … (CAL. BUS. & PROF. CODE § 25662[a]) … consumes any alcoholic beverage in any on-sale premises … (CAL. BUS. & PROF. CODE § 25658[b]) … does not apply to possession … making a delivery of an alcoholic beverage in pursuance of the order of his or her parent … (CAL. BUS. & PROF. CODE § 25662[a]) Colorado It shall be an affirmative defense [to possess or consume] … while such person was legally upon private property with the knowledge and consent of the owner or legal possessor of such private property and the ethyl alcohol was possessed or consumed with the consent of his parent … who was present during such possession or consumption;… (Colo. Rev. Stat. § 18-13-122[3][a]) It shall be an affirmative defense [to possess or consume] … while such person was legally upon private property with the knowledge and consent of the owner or legal possessor of such private property and the ethyl alcohol was possessed or consumed with the consent of his parent … who was present during such possession or consumption; … (Colo. Rev. Stat. § 18-13-122[3][a])     The provisions of this subsection shall not apply to … a minor who possesses alcoholic liquor while accompanied by a parent … (Colo. Rev. Stat. § 30-89[b][3])

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Reducing Underage Drinking: A Collective Responsibility State Private Property Exceptions Exceptions When Parents Are Involved Connecticut [cannot] … possess any alcoholic liquor on any street or highway or in any public place or place open to the public, including any club which is open to the public, … (CONN. GEN. STAT. § 30-89[b]) No exception provided Delaware This section shall not apply to the possession or consumption of alcoholic liquor … by members of the same family within the private home of any of said members. (DEL. CODE ANN. tit. 4, § 904[f]) This section shall not apply to the possession or consumption of alcoholic liquor … by members of the same family within the private home of any of said members. (DEL. CODE ANN. tit. 4, § 904[f]) District of Columbia No exception provided No exception provided Florida No exception provided No exception provided Georgia The prohibitions … shall not apply with respect to the possession of alcoholic beverages for consumption … when the parent … gives the alcoholic beverage to the person and when possession is in the home of the parent … and such parent … is present. (GA. CODE ANN. § 3-3-23[c]) The prohibitions … shall not apply with respect to the possession of alcoholic beverages for consumption … when the parent … gives the alcoholic beverage to the person and when possession is in the home of the parent … and such parent … is present. (GA. CODE ANN. § 3-3-23[c]) Hawaii … no minor shall have liquor in the minor’s possession or custody in any motor vehicle on a public highway or in any public place, public gathering, or public amusement or at any public beach or public park; … (HAW. REV. STAT. § 281-101.5[b]) No exception provided Idaho No exception provided No exception provided

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Reducing Underage Drinking: A Collective Responsibility State Private Property Exceptions Exceptions When Parents Are Involved Illinois [prohibits ] … any alcoholic beverage in his or her possession on any street or highway or in any public place or in any place open to the public … (235 ILL. COMP. STAT. 5/6-16[a][ii]) This Section does not apply to possession … making a delivery of an alcoholic beverage in pursuance of the order of his or her parent … (235 ILL. COMP. STAT. 5/6-16[a][ii]) It is unlawful for any parent … to permit his or her residence to be used by an invitee of the parent’s child …, in a manner that constitutes a violation of this Section. (235 ILL. COMP. STAT. 5/6-16[a-1]) Indiana No exception provided It is [prohibited] … to knowingly transport [alcoholic beverage] on a public highway when not accompanied by at least one (1) of his parents … (IND. CODE ANN. § 7.1-5-7-7[3]) Iowa … except in the case of liquor, wine, or beer given or dispensed to a person under legal age within a private home and with the knowledge, presence, and consent of the parent … (IOWA CODE ANN. § 123.47[2]) … except in the case of liquor, wine, or beer given or dispensed to a person under legal age within a private home and with the knowledge, presence, and consent of the parent … (IOWA CODE ANN. § 123.47[2]) Kansas No exception provided This section shall not apply to the possession and consumption … when such possession and consumption is permitted and supervised, and such beverage is furnished, by the person’s parent … (KAN. STAT. ANN. § 41-727[e]) Kentucky No exception provided No exception provided Louisiana No exception provided It is unlawful for any person, other than a parent, … to purchase on behalf of a person under 21 years of age any alcoholic beverage. (LA. REV. STAT. ANN. § 14:93.13)

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Reducing Underage Drinking: A Collective Responsibility State Private Property Exceptions Exceptions When Parents Are Involved Maine A minor may not: Consume any liquor …, except in a home in the presence of the minor’s parent … (ME. REV. STAT. ANN. tit. 28-A, § 2051[1][B]) A minor may not: Have in the minor’s possession except: In a home in the presence of the minor’s parent, … (ME. REV. STAT. ANN. tit. 28-A, § 2051[1][E][2]) A minor may not: Consume any liquor …, except in a home in the presence of the minor’s parent … (ME. REV. STAT. ANN. tit. 28-A, § 2051[1][B]) A minor may not: Have … in the minor’s possession except: In a home in the presence of the minor’s parent, … (ME. REV. STAT. ANN. tit. 28-A, § 2051[1][E][2]) Maryland No exception provided No exception provided Massachusetts No exception provided Whoever, being under 21 years of age and not accompanied by a parent …, knowingly possesses, transports or carries on his person, any alcohol or alcoholic beverages, … (MASS. GEN. LAWS ANN. ch. 138, § 34C) Michigan No exception provided No exception provided Minnesota … it is an affirmative defense … that the defendant consumed the alcoholic beverage in the household of the defendant’s parent … and with the consent of the parent … (MINN. STAT. § 340A.503[Subd. 1(2)]) It is unlawful … to possess any alcoholic beverages with the intent to consume it at a place other than the household of the person’s parent … (MINN. STAT. § 340A.503[Subd. 3]) … it is an affirmative defense … that the defendant consumed the alcoholic beverage in the household of the defendant’s parent … and with the consent of the parent … (MINN. STAT. § 340A.503[Subd. 1(2)]) It is unlawful … to possess any alcoholic beverages with the intent to consume it at a place other than the household of the person’s parent (MINN. STAT. § 340A.503[Subd. 3]) Mississippi [it is an offense if he or she] has in his or her possession in any public place, any alcoholic beverages … (MISS. CODE ANN. § 67-1-81[2]) No exception provided Missouri No exception provided No exception provided

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Reducing Underage Drinking: A Collective Responsibility State Private Property Exceptions Exceptions When Parents Are Involved Montana No exception provided Except in the case of an alcoholic beverage provided in a nonintoxicating quantity … by his parent …,… a person may not sell or otherwise provide an alcoholic beverage to a person under 21 years of age. (MONT. CODE ANN. § 16-6-305[1][a])     A parent, … may not knowingly sell or otherwise provide an alcoholic beverage in an intoxicating quantity to a person under 21 years of age. (MONT. CODE ANN. § 16-6-305[1][b]) Nebraska … consume, or have in his or her possession … any alcoholic liquor in any tavern or in any other place, including public streets, alleys, roads, or highways, upon property owned by the State of Nebraska or any subdivision there of, … (NEB. REV. STAT. § 53-180.02) No exception provided   … except that a minor may consume, possess, or have physical control of alcoholic liquor in his or her permanent place of residence … (NEB. REV. STAT. § 53-180.02)   Nevada … possesses any alcoholic beverage in public … Possession “in public” includes possession: (a) On any street or highway; (b) In any place open to the public; and (c) In any private business establishment which is in effect open to the public. (NEV. REV. STAT. § 202.020[2],[4]) The term [in public] does not include: … Possession in private clubs or private establishments; … (NEV. REV. STAT. § 202.020[5][d]) The term [in public] does not include: … Possession in the presence of the person’s parent … (NEV. REV. STAT. § 202.020[5][b])

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Reducing Underage Drinking: A Collective Responsibility State Private Property Exceptions Exceptions When Parents Are Involved New Hampshire No exception provided No exception provided New Jersey … who knowingly possesses … or … consumes any alcoholic beverage in any school, public conveyance, public place, or place of public assembly, … (N.J. STAT. ANN. § 2C:33-15[a]) [offers, serves, or makes available an alcoholic beverage] … This subsection shall not apply to a parent … (N.J. STAT. ANN. § 2C:33-17[a])   It is not a violation …, when a parent … of a minor serves alcoholic beverages to that minor on real property, other than licensed premises, under the control of the parent … (N.J. STAT. ANN. § 60-7B-1[B]) This subsection shall not apply to any person in his home … who offers or serves or makes available an alcoholic beverage … in the presence of and with the permission of the parent … (N.J. STAT. ANN. § 2C:33-17[a]) New Mexico No exception provided It is not a violation …, when a parent … of a minor serves alcoholic beverages to that minor on real property, other than licensed premises, under the control of the parent … (N.M. STAT. ANN. § 60-7B-1[B]) New York No exception provided … may possess any alcoholic beverage with intent to consume if the alcoholic beverage is given: … to the person … by that person’s parent … (N.Y. ALCO. BEV. CONT. LAW § 65-c[2][b]) North Carolina No exception provided No exception provided North Dakota No exception provided No exception provided Ohio No exception provided No underage person shall knowingly possess or consume any low-alcohol beverage in any public or private place, unless accompanied by a parent, … (OHIO REV. CODE ANN. § 4301.631[H])

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Reducing Underage Drinking: A Collective Responsibility State Private Property Exceptions Exceptions When Parents Are Involved Oklahoma … possession of any intoxicating beverage … while such person is upon any public street, road, or highway or in any public building or place. (OKLA. STAT. Tit. 21, § 1215) No exception provided Oregon Except when such minor is in a private residence accompanied by the parent … and with such parent’s consent, … no person … shall have personal possession of alcoholic liquor. (OR. REV. STAT. § 471.430[1]) Except when such minor is in a private residence accompanied by the parent … and with such parent’s consent, … no person … shall have personal possession of alcoholic liquor. (OR. REV. STAT. § 471.430[1]) Pennsylvania No exception provided No exception provided Rhode Island No exception provided No exception provided South Carolina No exception provided No exception provided South Dakota No exception provided No exception provided Tennessee … has in such person’s possession in any public place, any alcoholic beverage, … (TENN. CODE ANN. § 57-4-203 [b][2][A]) No exception provided Texas No exception provided A minor may possess an alcoholic beverage: … if the minor is in the visible presence of his adult parent, … (TEX. ALCO. BEH. CODE ANN. § 106.05[b][2]) Utah … to possess or consume any alcoholic beverage while riding in a limousine or chartered bus. (UTAH CODE ANN. § 32A-12-209[3]) No exception provided Vermont No exception provided No exception provided Virginia No exception provided Except, … where possession of the alcoholic beverages … is due to … an order of his parent; … (VA. CODE ANN. § 4.1-305[A][ii])

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Reducing Underage Drinking: A Collective Responsibility State Private Property Exceptions Exceptions When Parents Are Involved Washington It is unlawful … to be in a public place, … while exhibiting the effects of having consumed liquor …,… exhibiting the effects means … odor … close proximity to container … speech, manner, appearance, … (WASH. REV. CODE § 66.44.270[2][b]) … no person shall open the package containing liquor or consume liquor in a public place. (WASH. REV. CODE § 66.44.100) This subsection (2)(b) [exhibiting the effects of having consumed liquor] does not apply if the person is in the presence of a parent … (WASH. REV. CODE § 66.44.270[2][b]) West Virginia No exception provided No exception provided Wisconsin No exception provided No exception provided Wyoming [an offender is he or she] … who has any alcoholic or malt beverage in his possession or who is drunk or under the influence of alcoholic liquor, … on any street or highway or in any public place … (WYO. STAT. ANN. § 12-6-101[b]) Any person who … furnishes, gives … any alcoholic liquor … who is not … [a] member of his own immediate family, is guilty … (WYO. STAT. ANN. § 12-6-101[a])     This subsection does not apply to possession … by a person [under 21] …: Who is in the physical presence of his parent …; (WYO. STAT. ANN. § 12-6-101[b][I]) Local Ordinances A third arena in which prohibitions against underage drinking have been enacted is at the local or municipal level. Local governments are becoming increasingly active in legislating against crime in general and specifying related sanctions (Logan, 2001), and a number of communities have enacted legislation that targets underage drinking. Local ordinances can send a strong message about what a community considers to be acceptable norms, and this often has been the rationale for adopting such laws (Humphrey, 2000). However, like state laws, local ordinances vary considerably in how they address underage drinking (OIG, 1991; PIRE, 2000). Many municipalities have ordinances in place that are used to supplement or enforce statewide underage drinking laws even though they may

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Reducing Underage Drinking: A Collective Responsibility offenders (e.g., Georgia), while others distinguish among first-, second-, and third-time offenders (e.g., New York). Some states require that a driver’s license suspension, revocation, or denial must accompany the imposition of other sanctions such as a fine (e.g., Idaho), while in other states the inclusion of license suspension, revocation, or denial in addition to other sanctions is optional (Kansas). Alternatively, in Mississippi license suspension can be used in lieu of other sanctions. In Mississippi, a youth whose license is suspended is placed on probation for 90 days subject to such conditions as the judge deems appropriate. If the youth successfully completes this probation, the suspension does not constitute a “conviction.” If the youth violates any of the conditions, the court revokes the youth’s driver’s license and imposes any fines or penalties that the judge would otherwise have assigned, and designates the disposition as a “conviction.” Some states apply this sanction only to offenders with a current driver’s license (e.g., Tennessee), while other states also encompass youth who may subsequently apply for a license by postponing eligibility or delaying the issuance of a license or a permit for a given period of time (e.g., Texas). Some states permit youth to obtain or retain restricted driving privileges (e.g., Oregon), although in some states the youth must establish a “hardship” to qualify for this option (e.g., Virginia). Finally, a few states dictate that the suspension shall not affect the insurance premiums of the offender (e.g., Louisiana) or that any subsequent reinstatement of the youth’s license shall be without further expense to the youth (e.g., Rhode Island). Constitutional Validity of Statutes That Suspend Driver’s Licenses Because the loss or denial of driving privileges can be of considerable importance to a youth, a number of lawsuits have challenged legislative efforts to suspend, revoke, or deny driver’s licenses for underage drinking when the youth’s activity did not involve the use or operation of a motor vehicle. These challenges can be divided into two groups, although both may appear in the same lawsuit. The first group consists of substantive attacks on the legislation, that is, that the substance of the legislation exceeded the legislature’s authority and thereby violated either the federal or state constitutional rights of the youth being sanctioned. The second group encompasses procedural claims that assert that the procedures used were inadequate to protect the due process rights of the youth under either the federal or a state constitution. Both groups of lawsuits have been relatively unsuccessful, although the procedural claims have had somewhat more success than the substantive claims. The courts that have ruled on these claims, however, have indicated some concern that there is insufficient linkage between these sanctions and goals that legislatures were purportedly attempting to accomplish with

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Reducing Underage Drinking: A Collective Responsibility these sanctions. From this it may be implied that there are some limits on their use, particularly if lengthy suspensions are imposed on first-time offenders for relatively innocuous acts. Substantive attacks generally have involved one or more of three basic claims. These three claims are that a statute authorizing the loss or denial of a driver’s license for underage drinking for behavior that did not involve the operation of a motor vehicle violated (1) substantive due process, (2) equal protection, or (3) prohibitions of cruel and unusual punishment. The substantive due process claims typically consist of an argument that there is no obvious connection between underage drinking that was not associated with the operation of a motor vehicle and dangerous driving. Proponents of this argument assert that the loss of a driver’s license should only occur when there has been a demonstration of dangerous driving or there is at least a relatively strong indication that it is likely to occur. The Wyoming Supreme Court found this argument sufficiently convincing to strike down a statute suspending a youth’s driver’s license for underage drinking, but it did so only under what it characterized as the broader and more protective Wyoming state constitution rather than the federal constitution.33 Other courts that have considered this argument have rejected it.34 They typically begin their analyses by noting that obtaining a driver’s license is a privilege and not a right, a position that has been widely accepted in a range of contexts involving obtaining or losing a driver’s license. As a result, the courts’ rationale typically continues, legislation imposing the loss or denial of a driver’s license as a sanction is not subject to a relatively rigorous “strict scrutiny” review. Instead, there need only be a “rational basis” for the legislation.35 Furthermore, under this test, the legislation is generally entitled to a presumption of constitutionality, the burden to es- 33   Johnson v. State Hearing Examiner’s Office, 838 P.2d 158 (Wyo. 1992). 34   State v. Niedermeyer, 14 P.3d 264 (Alaska 2000); People v. Valenzuela, 5 Cal. Rptr. 2d 492 (Cal. App. Dep’t Super. Ct. 1991); Freed v. Ryan, 704 N.E.2d 746 (Ill. App. Ct. 1998); Frantz v. Commonwealth, 649 A.2d 148 (Pa. Commw. Ct. 1994); Commonwealth v. Strunk, 582 A.2d 1326 (Pa. Super. Ct. 1990). See also In re Appeal in Maricopa County, Juvenile Action, 770 P.2d 394 (Ariz. Ct. App. 1989) (mandatory suspension of driver’s license of juvenile for selling marijuana); People v. Zinn, 843 P.2d 1351 (Colo. 1993) (revocation of driver’s license after selling cocaine); Quiller v. Bowman, 425 S.E.2d 641 (Ga. 1993) (suspension of driver’s license for possession of marijuana); Plowman v. Commonwealth, 635 A.2d 124 (Pa. 1993) (suspension of license for possession of small amount of marijuana at license holder’s residence). 35   The exact wording of this test varies somewhat, but a typical example was provided by the Alaska Supreme Court when it defined it (the test) as “allow[ing] a law to pass muster as long as it bears any rational relation to a legitimate legislative goal.” State v. Niedermeyer, 14 P.3d 264, 267 (Alaska 2000).

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Reducing Underage Drinking: A Collective Responsibility tablish that it is unconstitutional is placed on the person attacking it, and the legislature may not be required to provide empirical proof of the validity of its rationale, but can instead rely on rational speculation.36 The bases for the legislation that are typically asserted and accepted are (1) that youth who drink alcohol are likely to drink while driving at some point and that drinking while driving endangers the public safety, or (2) that the ingestion of alcohol by youth endangers their health and safety and that the loss or threatened loss of driving privileges will deter this ingestion. At the same time, courts have noted that these chains of inference “may be tenuous.”37 Nevertheless, absent empirical evidence that directly refutes these inferences, the courts, with the exception of the Supreme Court of Wyoming, have concluded that these inferences are sufficient to provide a rational basis for this legislation.38 A second attack that may be raised focuses on the Equal Protection Clause of either the federal or a relevant state constitution. Some youth offenders have attempted to argue that their equal protection rights are violated when they are subjected to the loss or denial of a driver’s license for alcohol use, but adults do not face the same sanction. This argument has been widely rejected.39 Courts have responded that age is not a pro- 36   Freed v. Ryan, 704 N.E.2d 746, 748 (Ill. App. Ct. 1998). 37   State v. Niedermeyer, 14 P.3d 264, 268 (Alaska 2000). 38   The Supreme Court of Wyoming responded by stating, “the driving force behind enactments such as presented here is to enforce non-use of alcoholic beverages by persons under the age of 19 …. Fines or jail are not deemed adequate punishment; therefore, driver’s license suspension is added to the inflicted deterrent. Realists know that the practical result is more frequent violations of driving without a driver’s license and likely no significant reduction in drinking occurrences.” Johnson v. State Hearing Examiner’s Office, 838 P.2d 158, 166, n.9 (Wyo. 1992). It also noted that “[a] casual acceptance in the cases that a right to drive in this American society is not ‘fundamental’ lacks both economic and logical application to this present real world.” Id. at 175, n.12. See also Commonwealth v. Strunk, 582 A.2d 1326, 1333 (Pa. Super. Ct. 1990) (Popovich, J., dissenting) (irrational to apply sanction of suspending driver’s licenses only for underage drinking and not for other behaviors, particularly when already a significant penalty associated with driving while intoxicated, which presumably serves a considerable deterrent function). See generally People v. Lindner, 535 N.E.2d 829, 832 (Ill. 1989) (in rejecting suspension of driver’s licenses of convicted sex offenders, “[k]eeping off the roads drivers who have committed offenses not involving vehicles is not a reasonable means of ensuring that the roads are free of drivers who operate vehicles unsafely or illegally.”). 39   Carney v. State, 808 S.W.2d 755 (Ark. 1991); People v. Valenzuela, 5 Cal. Rptr. 2d 492 (Cal. App. Dep’t Super. Ct. 1991); Frantz v. Commonwealth, 649 A.2d 148 (Pa. Commw. Ct. 1994); State v. Shawn P., 859 P.2d 1220 (Wash. 1993). See generally In re Appeal in Maricopa County, Juvenile Action, 770 P.2d 394 (Ariz. Ct. App. 1989) (mandatory suspension of driver’s license of juveniles but not adults for drug offenses is permissible); Davis v. State, 977 P.2d 554 (Wash. 1999) (upholding statute authorizing suspension of driver’s licenses of youth under the age of 21 after conviction of certain drug offenses).

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Reducing Underage Drinking: A Collective Responsibility tected class under the Equal Protection Clause and the legislature thus need only provide a rational basis for imposing different sanctions on youth than it does for adults for the same behavior. They note that drinking by youth is generally prohibited and assert that the risk of individuals under the age of 21 abusing alcohol and demonstrating a dangerous disregard for the safe operation of motor vehicles is particularly acute. Thus they have concluded that it is permissible to apply this sanction only to youth under the age of 21. An equal protection argument that has had more success focuses on statutory provisions that expose only youth below a certain age to suspension, and not those youth who are older.40 For example, Utah, Washington, and New Hampshire provide for the loss or denial of a driver’s license if the youth is under the age of 18 at the time of the offense, but not if the youth is 18, 19, or 20. The Supreme Court of Wyoming struck down a similar statutory provision because it did not find a rational basis for a distinction by age group among underage drinkers.41 In criticizing the imposition of suspensions only on youth below age 18, it has been argued that studies show that youth of ages 18 through 20 are more likely to use alcohol, to drive more often, and to harm the public through drunk driving. One judge concluded, “it is difficult to conceive what rational basis the Legislature would have for excluding those aged 18 and older.”42 However, the Supreme Court of Washington upheld this age distinction and found several ways in which the law treats youth under the age of 18 differently from youth of ages 18 through 20.43 The court noted that youth under the age of 18 are subject to the jurisdiction of the juvenile court where the aim of sentencing is both punishment and rehabilitation; that certain restrictions are placed on their ability to obtain a driver’s license, including obtaining the approval of their parents or guardians and successfully completing an approved safety education course; and that they cannot own a car, vote, hold office, independently decide to marry, make a will, or 40   However, equal protection arguments have failed that have challenged the decision of some states to limit these suspensions to youth above a minimum age, such as 13. State v. Shawn P., 859 P.2d 1220 (Wash. 1993). But see Id. at 1229-30 (Madsen, J., dissenting). 41   Johnson v. State Hearing Examiner’s Office, 838 P.2d 158 (Wyo. 1992). 42   Id. at 1228-30 (Madsen, J., dissenting). 43   State v. Shawn P., 859 P.2d 1220, 1225-26 (Wash. 1993). See also Carney v. State, 808 S.W.2d 755, 758 (Ark. 1991) (“[T]he state’s authority to supervise children is broader than that over similar actions by adults …. [T]he General Assembly had to draw the age line with accompanying penalties somewhere.”); State v. Preston, 832 P.2d 513 (Wash. Ct. App. 1992) (upholding age classification because youth under 18 can be considered less responsible than those who are 18 and older as demonstrated by the fact that in several states the legal drinking age is 18).

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Reducing Underage Drinking: A Collective Responsibility serve on a jury. In contrast, the court ascertained, none of these applied to youth 18 and older. In addition, the court determined that youth 18 and older have a greater dependence on a driver’s license for education, employment, or family needs and would be significantly harmed by its suspension. The third substantive attack on the loss or denial of a driver’s license for underage drinking unrelated to the operation of a motor vehicle has asserted that such a sanction constitutes cruel and unusual punishment in violation of either the federal or a state constitution because the sanction is disproportionately severe in comparison to the nature of the offense. Typically this argument asserts that the youth’s consumption or possession of alcohol was a relatively innocuous or isolated event, such as the drinking of a single can of beer on private property that caused no one any harm. The argument continues that the suspension of a youth’s driver’s license for a year, for example, causes an extreme hardship for the youth in today’s society, where the operation of a motor vehicle is vital to the youth’s opportunities to work or pursue other opportunities and the youth’s well-being.44 This set of assertions, however, also has been generally rejected by the courts. Courts have tended to assert either that (1) these are serious offenses because of the link between underage alcohol consumption and highway fatalities, notwithstanding a lack of empirical evidence establishing this link,45 or (2) these sanctions are remedial measures intended to ensure public safety on the streets and highways and are not imposed as punishment.46 In one case, however, the suspension of youth driver’s licenses was struck down as disproportionate when the sanction was imposed on youth under age 19, but not on youth ages 19 and 20.47 Procedural attacks on the imposition of these sanctions have been somewhat more successful. For example, the Supreme Court of Alaska struck down a driver’s license revocation after finding that the administrative 44   Commonwealth v. Strunk, 582 A.2d 1326, 1330 (Pa. Super. Ct. 1990) (“Their social status, their psychological and physical independence, and their ability fully to participate in peer group activity may all be implicated if this privilege is suspended. Furthermore, a driver’s license suspension may affect a youth’s economic welfare by limiting his ability to travel to and from a place of employment.”). 45   Commonwealth v. Strunk, 582 A.2d 1326, 1332 (Pa. Super. Ct. 1990) (90-day driver’s license suspension is not an excessive penalty). 46   People v. Valenzuela, 5 Cal. Rptr. 2d 492, 493 (Cal. App. Dep’t Super. Ct. 1991) (suspension of driving privilege for one year upheld). But see State v. Niedermeyer, 14 P.3d 264, 270-71 (Alaska 2000) (license revocation is not a remedial measure). 47   Johnson v. State Hearing Examiner’s Office, 838 P.2d 158, 177-78 (Wyo. 1992) (suspension of license for 90 days for first conviction, 12 months for subsequent offenses).

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Reducing Underage Drinking: A Collective Responsibility agency responsible for such revocations had acted without providing sufficient procedural safeguards.48 In Alaska, notice was given to the youth at the time of arrest that the youth’s driving privileges were revoked, although a review hearing by telephone could be requested. A conviction on the underlying offense was not required prior to revocation and, indeed, in this case the state ended up not prosecuting the youth for his underage drinking offense (consumption of alcohol). The court concluded that this administrative license revocation constituted a punishment of criminal conduct and necessitated the procedural protections generally accorded criminal prosecutions. The court rejected the state’s argument that this was the mere removal of the license of someone who was not fit to be licensed. The court determined that although the youth’s alcohol offense placed him in the class of minors who tend to drive more carelessly (thereby satisfying the requirements of substantive due process), the removal of the license should not occur automatically, but required an individualized determination with appropriate procedural safeguards. At the same time, the court distinguished the Alaska procedure from other states where a conviction preceded license removal. On the other hand, the Supreme Court of Pennsylvania concluded that the loss of driving privileges for underage drinking was a civil collateral consequence of a youth’s conviction and thus the youth was not required to be informed of this consequence at the time of his or her submission of a guilty plea.49 The court noted that although a criminal defendant ordinarily must be informed of the consequences of submitting a guilty plea, Pennsylvania courts had routinely recognized that suspension of a driver’s license is a collateral civil consequence of a criminal conviction and that it was not required that the defendant know that it would be imposed at the time of his or her guilty plea. The court rejected the youth’s argument that driver’s license suspension should be considered a criminal penalty because the statute imposing it was found in the criminal code, asserting that its placement in the legislative code was not determinative. The court also rejected the youth’s argument that it was a criminal penalty because it was imposed by the sentencing court. The court acknowledged that under the relevant statute, the judge was required to order a license suspension and to transmit this order to the Department of Transportation for execution. However, the court concluded that the judge’s role was “more ministerial in nature than one involving ‘control’ or ‘responsibility’” in that the judge had no control over whether the sentence was actually imposed and the department calculated the period of suspension based on any prior incidents. The 48   State v. Niedermeyer, 14 P.3d 264, 268 (Alaska 2000). 49   Commonwealth v. Duffey, 639 A.2d 1174 (Pa. 1994).

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Reducing Underage Drinking: A Collective Responsibility court characterized the judge’s role as merely guaranteeing that the department receive timely notice of the conviction requiring license suspension. Thus, unlike the Supreme Court of Alaska, this court found that license suspension for underage drinking was not a criminal penalty, but rather a collateral civil consequence of the criminal conviction. It thereby concluded that its imposition required fewer procedural protections than are associated with criminal sanctions in general and the failure to inform the youth of this consequence at the time of the guilty plea did not invalidate the suspension.50 STATES THAT SUSPEND, REVOKE, OR DENY DRIVER’S LICENSES FOR UNDERAGE DRINKING OFFENSES NOT INVOLVING OPERATION OF A MOTOR VEHICLE Alaska (consume/possess): For second offense, may revoke for three months or take possession of the driver’s license (ALASKA STAT. § 04.16.050(c)(2),(3) [2001]); habitual offender (three or more offenses or on probation at time), may revoke for six months or take possession of license (ALASKA STAT. § 04.16.050(d)(2),(4) [2001]); if requested by Department of Motor Vehicles, court may require driver to complete alcohol information course (ALASKA STAT. § 28.15.253 [2001]). Arizona (use fraudulent identification): May suspend driver’s license or deny right to apply for license (ARIZ. REV. STAT. § 4-241[F] [2002]). California (attempt to purchase/consume/possess/use false identification): If age 13 or over, shall suspend driver’s license for one year or, if does not have license, delay application for license by one year (CAL. VEH. CODE § 13202.5 [West 2003]). Delaware (possess/consume): First offense, shall have driver’s license revoked for 30 days; second and subsequent offenses, shall revoke for no less than 90 days and no more than 180 days (DEL. CODE. ANN. tit. 4 § 904[f] [2002]). District of Columbia (purchase/attempt to purchase/possess/drink/ falsely represent age/possess or present fraudulent identification): First offense, shall suspend license for 90 days; second offense, shall suspend for 180 days; third or subsequent offense, shall suspend for one year (D.C. CODE ANN. § 25-1002[d][1]-[3] [2002]). Florida (possess): In addition to any other penalty, for first offense shall withhold, suspend, or revoke license for not less than six months and not more than one year, for second or subsequent offense shall withhold, sus- 50   See also Rexford v. State, 941 P.2d 906 (Alaska Ct. App. 1997) (administrative revocation not “punishment” for double jeopardy purposes).

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Reducing Underage Drinking: A Collective Responsibility pend, or revoke license for two years; court may direct the issuance of a restricted license that limits driving to business or employment purposes (FLA. STAT. ANN. §§ 562.111, 322.056 [West 2002]). Georgia (attempt to purchase): First offense, shall suspend license for six months; second and subsequent offenses, shall suspend for one year (GA. CODE ANN. § 3-3-23.1[b][3] [2002]). Idaho (possess/use/procure/attempt to procure): First offense, shall suspend license for not more than one year, though restricted privileges may be allowed if person shows by preponderance of evidence that privileges are “necessary” (IDAHO CODE § 18-1502[d][1] [2002]); second offense, shall suspend license for not more than two years, though restricted privileges may be allowed if person shows by preponderance of evidence that privileges are “necessary” (IDAHO CODE § 18-1502[d][2] [2002]). Illinois (purchase/possess): May suspend or revoke license or permit (235 ILL. COMP. STAT. 5/6-20, 625 ILL. COMP. STAT. 5/6-206[a][38] [West 2002]). Indiana (use of fraudulent identification): Shall suspend license for maximum of one year (IND. CODE § 7.1-5-7-1 [West 2002]). Iowa (purchase/attempt to purchase/possess): Second or subsequent offense, shall suspend license for period not to exceed one year (IOWA CODE § 123.47[3] [2002]). Kansas (possess/consume/obtain/purchase/attempt to obtain or purchase): Shall suspend license for 30 days or shall not be permitted to obtain a license for 30 days (KAN. STAT. ANN. § 41-727[d][2] [2001]). Louisiana (possess/use/abuse): For a first offense for a person over 12 and under 19, shall deny driving privileges for not less than 90 days but not more than one year or until the person reaches the age of 18, whichever is longer; for a first offense for a person over 18, shall deny driving privileges for not less than 90 days but not more than one year; for a second or subsequent offense, shall deny driving privileges for one year or until the person reaches the age of 19, whichever is longer; may issue restricted driver’s license after first 30 days of suspension if shown that hardship would result from being unable to commute to school or work; no insurer may increase premium rates unless offense directly related to operation of a motor vehicle (LA. REV. STAT. ANN. § 430 [West 2002]). Massachusetts (purchase/attempt to purchase/misrepresent age): Shall suspend license for 180 days (MASS. GEN. LAWS ANN. ch. 138, § 34A [West 2002]). Michigan (purchase/attempt to purchase/consume/attempt to consume/ possess or attempt to possess/use fraudulent identification to purchase): Shall suspend license (MICH. COMP. LAWS § 436.1703[4] [2002]). Minnesota (purchase/attempt to purchase using false identification): Shall suspend license for 90 days (MINN. STAT. § 171.171 [2002]).

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Reducing Underage Drinking: A Collective Responsibility Mississippi (purchase/possess in a “public place”): Shall suspend license for not more than 90 days and may place on probation; license suspension shall not constitute a “conviction”; if probation violated, license shall be returned, fines or penalties that would otherwise have been imposed shall be imposed, and action shall constitute a conviction (MISS. CODE ANN. § 67-1-81[4] [West 2002]). Montana (consume/possess): May suspend license for not less than 60 days or more than one year, although restricted license may be made available after 30 days of suspension period (MONT. CODE ANN. § 45-5-624[2][b] [2001]). New Hampshire (sell/possess/use/abuse): For person 15 years or older but not yet 18, court may suspend or deny license and must notify director [of motor vehicles], and director must suspend or deny application for license for no less than 90 days or more than one year for first offense and no less than six months or more than two years for subsequent offenses, although director must first provide opportunity for hearing [similar provisions not provided for youth 18 or older] (N.H. REV. STAT. ANN. § 263:56-b[I] [West 2002]). New Jersey (possess/consume in motor vehicle): Shall suspend or postpone obtaining of license for six months (N.J. STAT. ANN. § 2C:33-15[b] [West 2002]); purchase/attempt to purchase/consume on premises licensed for retail sale of alcohol/misrepresent age: shall suspend or postpone obtaining of license for six months (N.J. STAT. ANN. § 33:1-81 [West 2002]). New Mexico (purchase/attempt to purchase/receive/possess/permit self to be served): First offense, shall perform 30 hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor (N.M. STAT. ANN. § 60-7B-1[G][1] [2002]); second offense, suspend license for 90 days or add 90 days to date would otherwise become eligible to obtain license and shall perform 40 hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor (N.M. STAT. ANN. § 60-7B-1[G][2] [2002]); third or subsequent offense, suspend license for two years or until reaches age of 21, whichever is greater, and shall perform 60 hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor (N.M. STAT. ANN. § 60-7B-1[G][3] [2002]). New York (use license to purchase/attempt to purchase): First offense, may suspend or deny application for license for three months (N.Y. ALCO. BEV. CONT. LAW § 65-b[6][a] [West 2002]); second offense, may suspend or deny application for license for six months (N.Y. ALCO. BEV. CONT. LAW § 65-b[6][b] [West 2002]); third or subsequent offense, may suspend or deny application for license for one year or until reaches age of 21, whichever is greater (N.Y. ALCO. BEV. CONT. LAW § 65-b[6][c] [West 2002]).

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Reducing Underage Drinking: A Collective Responsibility North Carolina (fraudulent use of identification/assist another person who is underage/purchase/attempt to purchase): Court shall file conviction report with Division of Motor Vehicles and Division shall suspend (pursuant to G.S. 20-17.3) (N.C. GEN. STAT. § 18B-302 [West 2002]). Ohio (use fraudulent identification): Shall suspend license for one year (OHIO REV. CODE § 4507.163 [West 2002]). Oregon (misrepresent age in attempt to purchase or acquire): Shall suspend license or right to apply for license for maximum of one year, though may withdraw upon petition and may recommend to Department of Transportation that hardship permit be granted (OR. REV. STAT. § 471.430[5] [2001]). Pennsylvania (misrepresent age to obtain/purchase/consume/possess/ carry false identification): First offense, shall suspend for 90 days; second offense, shall suspend for one year; third or subsequent offense, shall suspend for two years; any multiple suspensions shall be imposed consecutively; if without license at time, time periods come into force when application for license submitted; if under age 16 at time, eligibility to apply for license delayed by these periods of time (18 PA. CONS. STAT. § 6310.4 [West 2002]). Rhode Island (consume in retail outlet/purchase/attempt to purchase/ have another purchase for/misrepresent age): First offense, may suspend for not more than three months; second offense, may suspend for not more than six months; third or subsequent offense, may suspend for not more than one year (R.I. GEN. LAWS § 3-8-6d][1] [Matthew Bender 2001]); No suspension shall affect insurance rating of offender and license shall be reinstated without further expense (R.I. GEN. LAWS § 3-8-6[d][2] [Matthew Bender 2001]). Tennessee (purchase/attempt to purchase/possess/misrepresent age/use false identification): Shall suspend license (TENN. CODE ANN. § 57-4-203 [West 2002]). Texas (purchase/attempt to purchase/consume/possess): First offense, suspend or deny issuance of license or permit for 30 days; second offense, suspend or deny issuance of license or permit for 60 days; third or subsequent offense, suspend or deny issuance of license or permit for 180 days (TEX. ALCO. BEV. CODE ANN. § 106.071[d][2][A]-[C] [West 2001]). Utah (purchase/attempt to purchase/solicit another person to purchase/ possess/consume): If at least 13 but under 18, first offense may suspend license, second offense shall suspend driver’s license (UTAH CODE ANN. §§ 32A-12-209, 78-3a-506 [Matthew Bender 2002]). Vermont (falsely represent age/possess for purpose of consumption/ consume): Second offense, shall suspend license for 120 days (VT. STAT. ANN. tit. 7 § 657[d][2] [2002]).

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Reducing Underage Drinking: A Collective Responsibility Virginia (purchase/possess/attempt to purchase or possess): May suspend license for not more than one year, although court may upon demonstration of hardship authorize restricted use (VA. CODE ANN. § 4.1-305[C][ii] [West 2002]). Washington (possess/consume/acquire): If age 13 or older and under 18, for first offense, shall suspend license for one year or until reaches age of 17, whichever is longer; for second offense, shall suspend for two years or until reaches age of 18, whichever is longer (WASH. REV. CODE ANN. §§ 66.44.270[2][a], 66.44.365, 46.20.265 [West 2002]). Wisconsin (procure/attempt to procure/possess or consume on licensed premises/presence in retail outlet/falsely represent age/possess/consume): First offense, may suspend license; second or subsequent offense within 12 months, may suspend license, unless involved motor vehicle then shall suspend license (WIS. STAT. § 125.07[4][bs],[c] [West 2002]).