A bill that would allow police to arrest underage drinkers for possession of alcohol even if they do not physically possess an alcoholic beverage is currently under review in the New Hampshire State Senate.
The proposed revision would expand the scope of underage alcoholic beverage possession to include "constructive possession," defined as the intent or power to exercise control over an illegal substance. Constructive possession would grant New Hampshire police the power to arrest anyone intoxicated and under 21 for possessing alcohol -- internally.
"Under current law, if you are a person standing with a beer can in your hand, and you're under the age of 21, and there is a kid standing next to you and he just threw his can in the trash, you get arrested, and he doesn't," explained State Representative John Tholl, a co-sponsor of the bill, HB1433.
Although the bill encompasses underage persons who register higher than .02 on a blood alcohol concentration test, physical evidence is not necessary to convict a suspect of constructive possession.
"All we have to show is that we had contact with an individual who had exhibited signs of intoxication," Chief of Hanover Police Nick Giaconne said.
BAC tests are voluntary despite a suspect's age. However, Claire Ebel of the New Hampshire Civil Liberties Union said that many people under 21 are not aware of this and believe that the test is mandatory, opening the possibility for police to abuse the law."It very much frightens me that the bill would allow any police officer to stop any person who appeared to be inebriated or who appeared to be under 21," Ebel said.
New Hampshire State Liquor Commission Chief of Enforcement Aiden Moore refuted concerns that the bill would encourage unwarranted police intrusion.
"This law change will not allow local police or state officers to stand outside of a house and just wait outside for people to come outside and arrest them," Moore said. "Law enforcement can't just arbitrarily stop people walking down the street."
Moore added that under the bill, an underage person could be charged with possession if in the vicinity of an alcoholic beverage. However, it is the officer's responsibility to prove that the person also had the intent to drink.
The proposed revision's heavy reliance on police judgment disturbed State Rep. Martha Solow of Hanover.
"I think it's an overextension of government into private lives," she said. "Mainly I think it gives too much authority to police who could intrude on people's private parties simply on terms of their own private judgement."
Current law requires police officers to detain anyone found to be noticeably intoxicated. If there is no alcohol on an underage drinker at the time, the police cannot charge the individual with alcohol possession but will notify his or her legal guardian.
"We have this law on the books that says that if you are under 21 and drinking, it's a violation, and we can't enforce it unless you are so drunk you forget to throw away your can," said Representative Susan Almy of Lebanon, a co-sponsor of the bill.
Ebel argued that the similarity between the proposed penalties for alcohol possession and driving intoxicated would encourage underage drunk driving. Penalties for drunk driving begin with a $250 fine, a mandatory 90-day license suspension and a costly alcohol awareness program.
While it is possible for a judge to revoke a driver's license under the revised law, this is also a potential punishment under the current version of the law. Total fines for driving while intoxicated are more than the $250 ticket for underage alcohol possession.
"The ones that are going to drive home are the ones who would drive anyway," Tholl said. "I think that the young adults in this state are a lot more intelligent and savvy than a lot of people give them credit for."
