Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 4, #13©

Issue: New York statutes that concern drinking by minors

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).

Unlawfully Dealing with a Child

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, guardian 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).

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, 271 NYS2d 236 (1966). However, the mere presence of a minor at a party where alcohol is served is insufficient. People v Weyrick, 55 Misc2d 1063, 287 NYS2d 715 (City Ct 1968).

An adult who drives under the influence of alcohol with children as passenger may be prosecuted for EWOC. People v Cruz, 152 Misc2d 436, 576 NYS2d 978 (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.

A 2002 enactment, called "Sean's Law," is perhaps similar to the "prompt suspension" law. The new statute 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). The new statute is effective December 23, 2002.

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 is one of the few statutes that sets a maximum amount of "community service": no more than 30 hours. See also ABC Law § 65-b(2)(b),(c). One decision also 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, 715 NYS2d 138 (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, 715 NYS2d 201 (4th Dept 2000) (youth who was intoxicated assumed risk).

Where there's smoke, there's a smoke machine."
John F. Kennedy

AAB Administrative adjudication bureau. Administrative forum for convicting drivers of traffic infractions. Discovery and due process are circumvented and circumscribed in this setting. Vehicle and Traffic Law § 225. Handling a Criminal Case in New York § 1:30.


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