Is a ticket for underage alcohol consumption legal if they didn't do a breathalyzer or blood test?
Full Question:
Answer:
The answer will depend on all the facts and circumstances involved. Illegal possession or consumption of ethyl alcohol by an underage person is a strict liability offense, meaning that intent is not examined and mere possession can lead to conviction. A blood or breathalyzer test is not necessary for a conviction.
In some cases a judge will grant a deferred or withheld adjudication, which imposes certain probationary conditions to a dismissal of the charges. If the defendant successfully completes the terms of probation, and the charges are then dismissed, that person can truthfully answer no if asked whether he/she was ever convicted of that crime. However, some applications do inquire about whether a person has ever been placed on deferred adjudication, to which the answer would be yes.Please see the statute below for when defenses or immunity applies. It may also be possible to get a conviction expunged.
Please see the following CO statute:
18-13-122. Illegal possession or consumption of ethyl alcohol by an
underage person — definitions — adolescent substance abuse prevention and
treatment fund — legislative declaration.
(1) As used in this section, unless the context otherwise requires:
(a) "Establishment" means a business, firm, enterprise, service or
fraternal organization, club, institution, entity, group, or residence, and
any real property, including buildings and improvements, connected
therewith, and shall also include any members, employees, and occupants
associated therewith.
(b) "Ethyl alcohol" means any substance which is or contains ethyl
alcohol.
(c) "Possession of ethyl alcohol" means that a person has or holds any
amount of ethyl alcohol anywhere on his person, or that a person owns or
has custody of ethyl alcohol, or has ethyl alcohol within his immediate
presence and control.
(d) "Private property" means any dwelling and its curtilage which is
being used by a natural person or natural persons for habitation and
which is not open to the public and privately owned real property which
is not open to the public. "Private property" shall not include:
(I) Any establishment which has or is required to have a license pursuant
to article 46, 47, or 48 of title 12, C.R.S.; or
(II) Any establishment which sells ethyl alcohol or upon which ethyl
alcohol is sold; or
(III) Any establishment which leases, rents, or provides accommodations
to members of the public generally.
(2)(a) Any person under twenty-one years of age who possesses or consumes
ethyl alcohol anywhere in the state of Colorado commits illegal possession
or consumption of ethyl alcohol by an underage person.
Illegal possession or consumption of ethyl alcohol by an underage person
is a strict liability offense.
(b) (I) Upon conviction of a first offense, illegal possession or
consumption of ethyl alcohol by an underage person shall be punished by a
fine of not more than two hundred fifty dollars. The court, upon sentencing
a defendant pursuant to this paragraph (b), may, in addition to any fine,
order that the defendant perform up to twenty-four hours of useful public
service, subject to the conditions and restrictions of section 18-1.3-507,
and may further order that the defendant submit to and complete an alcohol
evaluation or assessment, an alcohol education program, or an alcohol
treatment program at such defendant's own expense.
(II) Upon conviction of a second offense, illegal possession or
consumption of ethyl alcohol by an underage person shall be punished by a
fine of not more than five hundred dollars, and the court shall order the
defendant to submit to and complete an alcohol evaluation or assessment, an
alcohol education program, or an alcohol treatment program, at the
defendant's own expense. The court may further order the defendant to
perform up to twenty-four hours of useful public service, subject to the
conditions and restrictions specified in section 18-1.3-507.
(III) Upon conviction of a third or subsequent offense, illegal
possession or consumption of ethyl alcohol by an underage person shall be
a class 2 misdemeanor, and the court, in addition to sentencing the
defendant pursuant to the provisions of section 18-1.3-501, shall order
the defendant to submit to and complete an alcohol evaluation or
assessment, an alcohol education program, or an alcohol treatment
program, at the defendant's own expense.
(IV) A person convicted of a violation of this section is subject to an
additional penalty surcharge of twenty-five dollars that shall be
administered to the adolescent substance abuse prevention and treatment
fund.
(3) It shall be an affirmative defense to the offense described in
subsection (2) of this section that the ethyl alcohol was possessed or
consumed by a person under twenty-one years of age under the following
circumstances:
(a) 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 or legal guardian who was present during such possession or
consumption; or
(b) When the existence of ethyl alcohol in a person's body was due solely
to the ingestion of a confectionery which contained ethyl alcohol within
the limits prescribed by section 25-5-410(1)(i) (II), C.R.S.; or the
ingestion of any substance which was manufactured, designed, or intended
primarily for a purpose other than oral human ingestion; or the ingestion
of any substance which was manufactured, designed, or intended solely for
medicinal or hygienic purposes; or solely from the ingestion of a beverage
which contained less than one-half of one percent of ethyl alcohol by
weight.
(c) The person is a student who:
(I) Tastes but does not imbibe an alcohol beverage only while under the
direct supervision of an instructor who is at least twenty-one years of age
and employed by a post-secondary school;
(II) Is enrolled in a university or a post-secondary school accredited or
certified by an agency recognized by the United States department of
education, a nationally recognized accrediting agency or association, or
the "Private Occupational Education Act of 1981", article 59 of title 12,
C.R.S.;
(III) Is participating in a culinary arts, food service, or restaurant
management degree program; and
(IV) Tastes but does not imbibe the alcohol beverage for instructional
purposes as a part of a required course in which the alcohol beverage,
except the portion the student tastes, remains under the control of the
instructor.
(4) The possession or consumption of ethyl alcohol shall not constitute a
violation of this section if such possession or consumption takes place for
religious purposes protected by the first amendment to the United States
constitution.
(4.5) An underage person and one or two other persons shall be immune
from criminal prosecution under this section if they establish the
following:
(a) One of the underage persons called 911 and reported that another
underage person was in need of medical assistance due to alcohol
consumption;
(b) The underage person who called 911 and, if applicable, one or two
other persons acting in concert with the underage person who called 911
provided each of their names to the 911 operator;
(c) The underage person was the first person to make the 911 report; and
(d) The underage person and, if applicable, one or two other persons
acting in concert with the underage person who made the 911 call remained
on the scene with the underage person in need of medical assistance until
assistance arrived and cooperated with medical assistance and law
enforcement personnel on the scene.
(5) Prima facie evidence of a violation of subsection (2) of this
section shall consist of:
(a) Evidence that the defendant was under the age of twenty-one years and
possessed or consumed ethyl alcohol anywhere in this state; or
(b) Evidence that the defendant was under the age of twenty-one years and
manifested any of the characteristics commonly associated with ethyl
alcohol intoxication or impairment while present anywhere in this state.
(6) During any trial for a violation of subsection (2) of this section,
any bottle, can, or any other container with labeling indicating the
contents of such bottle, can, or container shall be admissible into
evidence, and the information contained on any label on such bottle, can,
or other container shall be admissible into evidence and shall not
constitute hearsay. A jury or a judge, whichever is appropriate, may
consider the information upon such label in determining whether the
contents of the bottle, can, or other container were composed in whole or
in part of ethyl alcohol. A label which identifies the contents of any
bottle, can, or other container as "beer", "ale", "malt beverage",
"fermented malt beverage", "malt liquor", "wine", "champagne", "whiskey" or
"whisky", "gin", "vodka", "tequila", "schnapps", "brandy", "cognac",
"liqueur", "cordial", "alcohol", or "liquor" shall constitute prima facie
evidence that the contents of the bottle, can, or other container was
composed in whole or in part of ethyl alcohol.
(7) A parent or legal guardian of a person under twenty-one years of age
or any natural person who has the permission of such parent or legal
guardian may give or permit the possession and consumption of ethyl alcohol
to or by a person under the age of twenty-one years under the conditions
described in paragraph (a) of subsection (3) of this section. This
subsection (7) shall not be construed to permit any establishment which is
or is required to be licensed pursuant to article 46, 47, or 48 of
title 12, C.R.S., or any members, employees, or occupants of any such
establishment to give, provide, make available, or sell ethyl alcohol to a
person under twenty-one years of age.
(8) Nothing in this section shall be construed to prohibit any statutory
or home rule municipality from enacting any ordinance which prohibits
persons under the age of twenty-one years from possessing or consuming
ethyl alcohol, which ordinance is at least as restrictive or more
restrictive than this section.
(9) Nothing in this section shall be construed to limit or preclude
prosecution for any offense pursuant to article 46, 47, or 48 of title 12,
C.R.S., except as provided in such articles.
(10) Upon the expiration of one year from the date of a conviction for a
violation of subsection (2) of this section, any person convicted of such
violation may petition the court in which the conviction was entered for an
order sealing the record of such conviction. The court shall grant such
petition if the petitioner has not been arrested for, charged with, or
convicted of any felony, misdemeanor, or petty offense during the period of
one year following the date of such petitioner's conviction for a violation
of subsection (2) of this section.
(11) The qualitative result of an alcohol test or tests shall be
admissible at the trial of any person charged with a violation of
subsection (2) of this section upon a showing that the device or devices
used to conduct such test or tests have been approved as accurate in
detecting alcohol by the executive director of the department of public
health and environment.
(12) Official records of the department of public health and
environment relating to the certification of breath test instruments,
certification of operators and operator instructors of breath test
instruments, certification of standard solutions, and certification of
laboratories shall be official records of the state. Copies of such
records, attested by the executive director of the department of public
health and environment or his deputy and accompanied by a certificate
bearing the official seal for said department, which state that the
executive director of the department has custody of such records, shall
be admissible in all courts of record and shall constitute prima facie
evidence of the information contained in such records. The official seal
of the department described in this subsection (12) may consist of a
rubber stamp producing a facsimile of the seal stamped upon the
document.
(13) In any judicial proceeding in any court of this state concerning a
charge under subsection (2) of this section, the court shall take judicial
notice of methods of testing a person's blood, breath, saliva, or urine for
the presence of alcohol and of the design and operation of devices
certified by the department of public health and environment for testing a
person's blood, breath, saliva, or urine for the presence of alcohol. This
subsection (13) shall not prevent the necessity of establishing during a
trial that the testing devices were working properly and that such testing
devices were properly operated. Nothing in this subsection (13) shall
preclude a defendant from offering evidence concerning the accuracy of
testing devices.
(14) No law enforcement officer shall enter upon any private property to
investigate any violation of this section without probable cause.
(15) Repealed.
(16)(a) The general assembly hereby finds and declares that:
(I) There are many children in Colorado who struggle with substance
abuse, and their substance abuse problems have a direct social and
economic impact on the state;
(II) It is estimated that in Colorado there are thirty thousand children
and youth between the ages of twelve and seventeen with a substance abuse
problem that often continues into young adulthood;
(III) At any one time, sixty to eighty percent of the youth in the
juvenile justice system have a substance abuse problem, and thirty percent
of the referrals for substance abuse problems in the juvenile justice
system have co-occurring disorders;
(IV) Colorado does not have the capacity to provide substance abuse
treatment for all children who need the treatment. In fiscal year 2004,
only four thousand three hundred eighty children received publicly funded
substance abuse treatment, representing only fifteen percent of the
children in the state who needed substance abuse treatment.
(V) It is necessary for the state of Colorado to provide more adolescent
substance abuse treatment in a developmentally, intellectually, and
socially appropriate manner and therefore it is necessary to create the
adolescent substance abuse prevention and treatment fund for that purpose.
(b) The surcharge collected pursuant to subparagraph (IV) of paragraph
(b) of subsection (2) of this section shall be transmitted to the state
treasurer, who shall credit the same to the adolescent substance abuse
prevention and treatment fund, which fund is hereby created and referred
to in this section as the "fund". The moneys in the fund shall be subject
to annual appropriation by the general assembly to the division of
alcohol and drug abuse in the department of human services, established
in part 2 of article 1 of title 25, C.R.S., for adolescent substance
abuse prevention and treatment programs. The division of alcohol and drug
abuse is authorized to seek and accept gifts, grants, or donations from
private or public sources for the purposes of this section. All private
and public funds received through gifts, grants, or donations shall be
transmitted to the state treasurer, who shall credit the same to the
fund. Any unexpended moneys in the fund may be invested by the state
treasurer as provided by law. All interest and income derived from the
investment and deposit of moneys in the fund shall be credited to the
fund. Any unexpended and unencumbered moneys remaining in the fund at the
end of a fiscal year shall remain in the fund and shall not be credited
or transferred to the general fund or another fund.