Consequences of Underage Drinking Ed Spillane Presiding Judge, College Station Some Stats Children and minors who drink increase overall morbidity and mortality rates by 200% between middle childhood and early adulthood 5,000 people under 21 die from alcoholrelated injuries involving underage drinking each year 1900 involve motor vehicle crashes 1600 result from homicides 300 result from suicides Applicable Offenses Under the Texas Alcoholic Beverage Code Driving or Operating Watercraft Under the Influence of Alcohol by a Minor Section 106.041 A minor, operates a motor vehicle or a watercraft In a public place With any detectable amount of alcohol in their system
Applicable Offenses Under the Texas Alcoholic Beverage Code Purchase of Alcohol by a Minor Section 106.02 A minor Purchases Alcohol Applicable Offenses Under the Texas Alcoholic Beverage Code Attempt to Purchase Alcohol by a Minor Section 106.25 A minor, with specific intent to purchase alcohol Does an act amounting to more than mere preparation That intends but fails to commit the offense Applicable Offenses Under the Texas Alcoholic Beverage Code Consumption of Alcohol by a Minor Section 106.04 A minor Consumes An alcoholic beverage Affirmative defense if in visible presence of adult parent, guardian or spouse Not an offense if 1 st person to summon medical assistance for someone with possible alcohol overdose and cooperates with medical and law enforcement personnel
Applicable Offenses Under the Texas Alcoholic Beverage Code Possession of Alcohol by a Minor Section 106.05 A minor Possesses An alcoholic beverage There is an exception if with adult parent, guardian or spouse or in course and scope of legal employment or in the immediate supervision of law enforcement engaged in enforcement Applicable Offenses Under the Texas Alcoholic Beverage Code (cont d) Misrepresentation of Age by a Minor Section 106.07 A minor Falsely states That he or she is 21 years of age or older To a person selling or serving alcoholic beverages Applicable Offenses Under the Texas Alcoholic Beverage Code (cont d) Public Intoxication (Penal Code Sec. 49.02) A person appears in a public place Intoxicated to a degree that the person may be A danger to themselves or others It is a defense is the alcohol or other substance is administered for therapeutic purposes as part of medical treatment administered by a licensed physician
Who is the defendant? A minor is defined as someone under 21 years of age (Sec. 106.01) Must be at least 10 (Penal Code Sec. 8.07) If between 10 15 the child is presumed to be incapable of committing a fine only offense Presumption may be refuted by the state by a preponderance of the evidence that child had ability to understand that conduct was wrong Appearance Under 17 the defendant must appear in court with a parent or guardian to enter a plea (CCP Art. 45.0215) Court must summon parent or guardian Court should also notice the parent or guardian in writing of the obligation to notify the court in writing of the child s current address (if under 17) Appearance Child 10 17 can be taken into non secure custody for no more than 6 hours (CCP Art. 45.058) Child may be released to parent, guardian, custodian or other responsible adult Minor 17 or older may be handled as an adult
Fail to Appear Failure to appear may be charged under Texas Penal Code Sec. 38.10 Under Art. 45.058 of the Code of Criminal Procedure the court may issue an order for nonsecure custody Under Art. 45.057(h) a child may be charged with failure to provide written notice of current address Court may report failure to the Department of Public Safety Possible Punishments First conviction is punishable as a Class C misdemeanor maximum fine of $500 But The court must also order: A Dept. of State Health Services approved 8 hour Alcohol Awareness Program or a drug and alcohol driving awareness program (DADAP) Eight to twelve hours of alcohol related community service except DUIM which requires 20 40 community service hours Possible Punishments Deferred Disposition is authorized for minor with alcohol violations just as in other violations However, the requirements for community service and an alcohol awareness class remain A defendant that is not a child and has been previously convicted at least twice of an alcohol related charge is not eligible for deferred disposition or deferred adjudication Sec. 106.071(i)
Possible Punishments Second Conviction is punishable as a Class C misdemeanor Mandatory 20 40 hours of alcohol related community service, except DUIAM which requires 40 60 Alcohol awareness class is an optional requirement 60 day driver s license denial or suspension effective on 11 th day after conviction except DUIAM which has an administrative driving license suspension deferred disposition is available Possible Punishments Third or more Conviction If a minor but not a child Fine of $250 $2,000 and/or jail time not to exceed 180 days No deferred disposition or adjudication Suspension of driver s license or deny renewal for 180 days If a child Must waive jurisdiction and send to juvenile court Unless court has a qualified Juvenile Case Manager program under CCP Art. 45.056 Alcohol Awareness Class If convicted or placed on deferred disposition an 8 hour approved course is required The course must be approved by the Department of State Health Services or the Texas Education Agency (new law) Drug and alcohol driving awareness programs (DADAP) are now acceptable if they are approved by the Texas Education Agency (New Law Section 106.115)
Alcohol Awareness Class (cont d) If a defendant resides in a county with a population of 75,000 or less and an alcohol awareness program is not readily available in the county The court may allow the defendant to take an approved online course; or The court may require at least 8 hours of community service instead of taking the class This community service does not take the place of other required community service New law Section 106.115 Alcohol Awareness Class (cont d) If a defendant resides in a county with a population of 75,000 or less and an alcohol awareness program is not readily available in the county How do you determine residency Address listed on driver s license If no driver s license then address on voter registration If not registered than address on file with public school If not enrolled in public school, then commission rules If defendant is attending college than where the college is Alcohol Awareness Class (cont d) Or, instead of navigating the residency maze, use the DADAP course as it has an online version that is already approved by T.E.A. Since it is approved as a course, the online version is also approved pursuant to the new provisions of Section 106.115(a)
Community Service Upon 1 st conviction or being placed on deferred disposition the court shall order the defendant to complete 8 12 hours of community service that is related to education about or prevention of misuse of alcohol if available. For DUIAM it is 20 40 hours If that type of community service is not available than rehabilitative community service is allowed New law 106.115(b 3) the Department of State Health Services will compile a list of community service opportunities related to alcohol abuse prevention in each county Completing Alcohol Awareness Class For all of the listed offenses if the class is completed the fine may be reduced in half Court may give an extra 90 days to complete if needed If not completed 1 st conviction court must order DPS to suspend or deny issuance of DL for up to six months 2 nd or subsequent conviction court must order DPS to suspend or deny issuance of DL not to exceed one year Completing Deferred Disposition If deferred disposition is completed Class is completed and proof turned in Community service hours are completed and proof turned in Case is dismissed but still counts as a conviction for enhancement purposes If deferred is not completed case must be set for show cause hearing If no good cause shown same procedure as conviction
Failure to Complete Orders (Fine) If the order that the defendant failed to comply with is for fail to pay a fine and the defendant is a child, or turned 17 before contempt hearing and persons who failed to obey the court order while 17 or older The defendant may be referred to the juvenile court for contempt proceedings or The municipal court may retain jurisdiction and hold the child/person in contempt with: Max fine $500 and/or D.L. suspension until compliance C.C.P. Art. 45.050 Expunction Expunction available in municipal court if: Defendant is now age 21 or older; Defendant only has one conviction under the Alcoholic Beverage Code; and The Court shall charge $30 for each application Sec. 106.12 Reports Juvenile Court when case filed and disposed of (Sec. 51.08(c) F.C.) If under 17: DPS if child fails to appear and when case adjudicated (Secs. 521.201(8) & 521.294(6), T.C.) DPS when child found in contempt for failure to pay & court orders suspension or denial of D.L. (Sec. 521.3451, T.C.) DPS when child makes final disposition
Reports All minors: DPS upon conviction or order of deferred (106.116) DPS when court orders suspension or denial not to exceed 6 months upon failure to complete alcohol awareness program or community service (106.115(d)) For DUIAM also notify DPS if acquitted under 106.041 Parents Court is required to summons parents (Art. 45.0215, C.C.P.) Failure to appear in court with the child is a class C misdemeanor (Art. 45.057(a) C.C.P.) Failure to notify the Court in writing of the child s current address is a Class C misdemeanor (Art. 45.057 C.C.P.) If the defendant is 17 to 21 he/she may appear without a parent The End