Last night community leaders held a public form to defend the Hanover Police Department's "internal possession" policy, while earlier in the day the New Hampshire branch of the American Civil Liberties Union announced it will challenge it.
Although it is ultimately up to the courts to untangle the complex legal issues, both sides maintain their interpretations of the law are correct.
Under New Hampshire law "any person under the age of 21 years who has in his possession anyt liquor or alcoholic beverage shall be guilty of a violation," according to New Hampshire Revised Statutes Annotated179:10.
Under the "internal possession" policy, police can use the presence of alcohol in the bloodstream as circumstantial evidence in cases where an underage drinker is charged with "unlawful possession."
But opponents of "internal possession" interpret NH RSA179:10 as restricting the definition of possession to only mean the external possession of alcoholic beverages.
In 1992, a motion in the New Hampshire legislature attempted to amend the statute so that alcohol in a person's system would be considered possession of alcohol, but on urging from the N.H. House of Representatives Judiciary Committee, the legislature voted overwhelmingly to kill the bill.
But the Hanover District Court has upheld the use of "internal possession" as part of the evidence presented in an "unlawful possession case," according to Hanover Police Chief Nick Giaccone and Town Manager Cliff Vermilya.
Giaccone stressed that "internal possession" is alone not enough to obtain a conviction nor is it the sole basis for an arrest but is used as a basis for launching an investigation to find evidence that the person once had possession of alcoholic beverages.
"At some prior point [the drunk individuals] had to have alcohol in their possession to get it into their system," Giaccone said.
In order to obtain a conviction, the police must show, among other things, that the individual consumed the alcohol in Hanover.
Another New Hampshire law, NH RSA 172-B:4 says the state cannot "adopt or enforce an ordinance or bylaw having the force of law that includes being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal or civil penalty."
NHCLU Executive Director Claire Ebel added that it is illegal to stop a person solely because they appear drunk. She said the NHCLU believes it is unconstitutional to arrest someone on the basis of an investigation launched from this stop.
"The police can not arrest someone if they are not acting in a manner that suggests reasonable suspicion that a crime is being committed," she said. "You can't begin an investigation based on an illegal action."
But Giaccone said officers only approach an individual after noticing something about a person's behavior -- like stumbling or throwing a beer can -- that leads them to believe the individual is underage and intoxicated.
Ebel also claims the Hanover Police's policy of recommending that individuals participate in an alcohol diversion program to avoid criminal punishment violates their civil liberties.
She said only people who have charges filed against them can participate in the Hanover Alcohol Diversion program and intoxication, regardless of an individual's age, is never a crime in New Hampshire.
But Giaccone said no individual who has not been charged with a crime is forced or even offered the chance to undertake an alcohol diversion program.
As an example of the illegality of the "internal possession" policy and police stopping students who appear drunk, Ebel cited a Supreme Court case where the court ruled that an individual cannot be apprehended because he looks conspicuous: a man, commonly known as the "California Walker," was arrested more than 30 times for having a conspicuous appearance.
