By David A. Fahrenthold
Washington Post Staff Writer
Sunday, February 5, 2006
DURHAM, N.H. -- The alcohol that got Julia Zukerman into trouble with the law wasn't in her hand or in the front seat of her car. In fact, she wasn't drinking or driving -- just walking -- when a police officer told her to "blow a kiss in my face" and smelled her breath for booze.
"I thought I was fine, because I didn't have anything on me," said Zukerman, 19, waiting for her case to be called one recent morning in the courthouse of this college town. "Apparently not."
The alcohol they were interested in was already inside her body.
That's the way the law works now in New Hampshire, where minors can be arrested for what is colloquially called "internal possession" of alcohol, to the point of being intoxicated. In a break with legal tradition, an underage person with drinks in his or her system often faces the same charge as one with a drink in hand.
Similar statutes are now on the books in a handful of other states. Together, they've taken the campaign against underage drinking to a place it has rarely been before: down the gullet and into the bloodstream of teenage imbibers. But they have also spawned criticism from some legal scholars, who say the laws are pushing the definition of a real possession charge.
"When the law makes the offense simply a biological fact, of simply having a certain chemical in one's body, that steps over a line in the law that has been traditionally accepted," said Richard J. Bonnie, a law professor at the University of Virginia who has studied underage drinking.
At first glance, new prohibitions related to underage drinking might seem redundant. After all, every state has some kind of ban on possession of alcohol by those younger than 21, and most also have laws against alcohol consumption by youths. And how could a teenager get alcohol into his stomach without having possessed or consumed it first?
But, here in New Hampshire, police say it's not that simple.
In the old days, they say, the teenagers at a party would drop their drinks and run when officers arrived. That would leave police with few of the particulars -- who drank what, and when -- necessary to build a legal case.
"You couldn't charge them with anything," said Eddie Edwards, the state's chief of liquor law enforcement. "There's no deterrent."
Then, in 2002, the state legislature expanded the old underage-possession statute to apply to those "intoxicated by consumption of an alcoholic beverage." The offense is on the same level as a traffic violation, but carries a $300 fine and the possible loss of a driver's license.
Under the new law, police didn't have to establish when and how a minor had become intoxicated. They needed only to determine that the minor was intoxicated, with the alcohol inside them.
"It's just like looking for someone who's a drunk driver," said Sgt. Kevin Kincaid of the Manchester police. The clues might be a stumbling walk, glassy eyes, an odor of alcohol or a blood alcohol concentration of .02, police say.
Now, according to the judge who oversees New Hampshire's district courts, about half of the state's 6,000 cases of underage-possession in a typical year involve intoxication, not possession in the traditional sense.
But as common as it has become, the law has not lost its capacity to surprise.
"I really had no idea you could get arrested for that," said Chris Cormio, 20, a Massachusetts native now attending Plymouth State University in New Hampshire. Last February, he drank two beers, then set out on foot for a police station to bail out a friend. Cormio said he had brushed his teeth to get rid of the alcohol smell, but an officer noticed something amiss.
"Where I'm from," Cormio said, "they take you home when that happens to you."
So far, such laws remain relatively uncommon.
But that's starting to change: In Virginia, a 2003 bill allowed minors to be prosecuted for showing "physical indicia of consumption of alcohol," whether or not a container of booze is present. Alcohol laws with similar intent have also been enacted in Vermont, Arizona, Utah and Missouri, where legislators approved a new "possession by consumption" statute last summer.
South Dakota has applied the same logic to drug use, targeting controlled substances that are already "absorbed into the human body."
Here in New Hampshire, some legislators are trying to make the law stricter. If their bill passes, police would no longer have to determine whether a young person has drunk enough to be intoxicated -- any alcohol consumption at all would be enough for a charge.
Defense attorneys and some legal experts have objected to this kind of thinking, questioning how anyone could be convicted of "possessing" something that an officer cannot see.
They say laws such as New Hampshire's, which target intoxication, are problematic because an act must be voluntary to be illegal.
That's certainly the case with getting drunk -- drinkers choose to hoist a beer to their lips.
But, the lawyers ask, is the same true of being drunk, meaning the processes that occur once the alcohol is in the bloodstream.
"Intoxication is an involuntary act," said Gabriel Nizetic, a Plymouth defense attorney. "Your body's going to absorb it, whether you want to or not."
The difficulties of carrying out the current law were apparent one recent morning here in Durham District Court, where several defendants were from the nearby University of New Hampshire. Often, these cases sounded less like by-the-book trial proceedings and more like a set of worried parents, parsing the words and actions of a possibly drunk kid.
"The defendant responded, 'I don't know, I guess I had too much to drink,' " a university police officer testified in one case, recounting a late-night conversation in a dorm room where no alcohol was visible. He said the freshman defendant, 18, also seemed to forget his own age and spoke with "a thick tongue."
"Did you ask him if he had taken any illegal drugs?" Joanne Stella, the defense attorney, asked the officer, trying to introduce doubt that alcohol was behind his behavior. No, the officer replied.
Still, the student was found guilty. "What else could he have meant by, 'I've had too much to drink'?" Judge Gerald Taube asked.
In the next case, an officer testified that the defendant, whom he approached on a roadside late at night, "was swaying. Her eyes were bloodshot and glassy."
But, though the officer said he smelled alcohol, on cross-examination he said he wasn't sure whether he had asked the girl whether she had been drinking.
The girl got off, just as Zukerman did later the same day. But, in his ruling on her case, Taube said he was conflicted: "It's close to the line," he said.