Lawyer Gal's Blog

A Young Lawyer's Perspective

A primer on underage drinking

There is a pervasive normative argument that drinking underage should be legal.  While this debate is venerable, it should not shade the fact that underage drinking is illegal.  And is it a misdemeanor 1, which is on par with a DUI and domestic violence.  It will cost well over $500, plus attorney fees.  With this in mind, here is some background.

-If a cop goes up to a person he suspects of underage drinking and asks the suspect for identification, the suspect has every right to decline.  Why? Simple due process principle: you don’t have to self-incriminate.  When age is an element of an offense, you don’t have to disclose it.

-The cop will likely argue that he’s gonna hit you with failure to disclose. Yes, failure to disclose if suspected of a crime is a crime itself in Ohio per R.C 2921.29(a) IF in a public place.  [So a cop comes to a house party – definitely no way he can ask for ID]. But even if an underager is in public, the statute has an exception for age as an element:

“It is not a violation of this section to refuse to answer a question that would reveal a person’s age or date of birth if age is an element of the crime that the person is suspected of committing.”

Note, though, that the exception would still require you to give your name.  Giving a false name is very bad – will get hit with another charge.

-Let’s say a person is on probation or is in a diversion program for a previous underage drinking.  And lets say that he or she has pictures on facebook holding a beer…yep, you can be hit with a probation violation. Happens all the time.

-This one is fundamental to all offenses, not just underage drinking:  if a cop asks you how much you’ve drank, and you are underage, don’t incriminate yourself.  The state has to prove you committed the offense – don’t prove it for them by talking.  Shut up, shut up, shut up!

-Lastly, a cop might tell you that you are obstructing official business or something along those lines.  I swear, this is taught as a catch all in the police academy.  But caselaw clearly states that obstructing business requires an affirmative act.  You can’t obstruct business if you do nothing [i.e, not furnishing your identification].

I hope you found this primer to be informative.  Btw, this is not to be misconstrued as the creation of atty-client relationship.  I’m just pointing out general law.

Sarah

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May 9, 2010 - Posted by | Uncategorized

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