Muldoon, Getz & Reston

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Alcohol and Minors
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

Several New York statutes address the issue of underage drinking. Under the Alcohol Beverage Control Law, a person may not sell alcohol to a person under age 21. ABC Law § 65(1).

Similarly, in the Penal Law, the crime of Unlawfully Dealing with a Child 1st degree bars providing alcohol to a person under 21. Penal Law § 260.20(2).

It is no defense that the child acted as the agent or representative of another person, or that the defendant dealt with the child as such. Penal Law § 260.20(2).

A couple of “minor” exceptions: the statute permits giving alcohol “where the tasting or imbibing of alcoholic beverages is required in courses that are part of the required curriculum.” Penal Law § 260.20(2); see also, ABC Law § 65(5).

Additionally, the Penal Law ban does not apply to the parent or guardian of the minor.

A related offense, Unlawfully Dealing with a Child 2nd degree, addresses the situation of a person under age 16 who is present in an establishment where alcohol is provided. It, too, has a parent/guardian exception: no crime occurs if the child is accompanied by a parent, child or an authorized adult. Penal Law § 260.21(1)(a); see also, ABC Law § 100(2-b)(a).

Another statute addresses the issue of fake proof. ABC Law § 65-b(5) (suspension of driver license for using fake proof).

Affirmative Defense

The Unlawful Dealing 1st statute provides an affirmative defense: that the defendant has not previously been convicted of the crime, and that after the prosecution began, the defendant completed an alcohol awareness program.

Endangering the Welfare of a Child

As noted, the Unlawfully Dealing statute is inapplicable to parents or guardians, but inappropriately providing alcohol to a minor by a parent or guardian could constitute another crime, Endangering the Welfare of a Child. Penal Law § 260.10.

Additionally, a person other than a parent or guardian who provides alcohol to a minor may be prosecuted under the EWOC statute. People v Bergerson, 17 NY2d 398 (1966). However, the mere presence of a minor at a party where alcohol is served is insufficient. People v Weyrick, 55 Misc2d 1063 (City Ct 1968).

An adult who drives under the influence of alcohol with children as passenger may be prosecuted as a felony under Leandra’s Law, VTL § 1192(2-a)(b), as well as for EWOC. People v Cruz, 152 Misc2d 436 (City Crim Ct 1992).

Driving by minors

New York State has a “zero tolerance” policy for drivers under age 21 who drink. Even if not charged criminally, a minor with a .02 -.07% blood alcohol count faces administrative hearing and sanctions. Veh & Traf L §§ 1192-a, 1194-a. A minor with a higher BAC may face criminal charges.
“Sean’s Law” is perhaps similar to the “prompt suspension” law. This authorizes judges to immediately suspend at arraignment the junior driver license or learner permit of a person under age 18 who is charged with DWAI or DWI, even without a blood alcohol reading. Courts are also required to notify parents or guardians if a youth fails to appear on a DWI or DWAI charge. Veh & Traf L § 1193(2)(e),(f).

Unlawful possession of alcohol

The Alcohol Beverage Control Law also weighs in on possession with intent to consume alcohol by minors. Unlawful possession of alcohol by a minor is prohibited under § 65-c.

The ABC statute is curious in a few respects. First, it directs that the accused be issued a summons, but does not authorize an arrest. § 65-c(3).

Second is the punishment provided by the statute. It sets a maximum amount of “community service:” no more than 30 hours. See also ABC Law § 65-b(2)(b),(c). One decision holds that the statute defines a civil offense and that therefore a conditional discharge is not a permitted disposition. People v Ekman, 185 Misc2d 905 (Co Ct 2000).

Civil liability

New York law provides a cause of action for personal or property damage resulting from intoxication or impairment of a person under 21. Gen Obl L § 11-100; see also, Britton v Noe, 275 AD2d 1002 (4th Dept 2000) (youth who was intoxicated assumed risk).

© 2013 by Gary Muldoon