Judicial Notebook

Over the past few years considerable effort has been devoted to curtailing underage drinking. Every state has enacted a law that specifically prohibits the consumption, possession or purchase of an alcoholic beverage by individuals under the age of 21. These prohibitions apply regardless of whether a motor vehicle was involved and thus are not limited to drinking and driving. Although a range of sanctions is generally available, the typical sanction imposed has been a fine.

These sanctions are designed to deter underage drinking, although there is virtually no research that has assessed their deterrent effect (Hafemeister & Jackson, in press). Many law enforcement officials, however, have concluded that these sanctions have not deterred this behavior. Indeed, national surveys indicate underage drinking remains high. A recent Centers for Disease Control and Prevention study found, for example, that 47 percent of high school age individuals drank in the past month and 30 percent had had five or more drinks within a two-hour period at least once in the past 30 days (Grunbaum et al., 2002).

Many law enforcement officials have concluded, albeit without confirming empirical research, that fines are a relatively ineffective deterrent, either because parents pay the fines or because most offenders work and can readily pay fines out of what they earn. These officials have concluded that what is needed is a sanction with more personal significance to underage drinkers.

Loss of driving privileges as a sanction

The sanction that has gained considerable recent support is the loss of driving privileges. Currently, 33 states have added this sanction to the arsenal of penalties that may be imposed for underage drinking. This loss can occur even if the operation of a motor vehicle was not involved. The loss of driving privileges is mandatory for an underage drinking offense in 24 states, and in 29 states this sanction is available for a first-time offender. In some states, the loss can be for as much as two years (Hafemeister & Jackson, in press).

Because the loss of driving privileges can have a significant impact on an individual, there have been a number of lawsuits that have challenged this legislation. These challenges consist of three basic attacks. First, that the loss of a driver's license should only occur when there has been a demonstration of dangerous driving or when there is at least a relatively strong indication that it is likely to occur, and that this linkage is missing when the underage drinking was not associated with the operation of a motor vehicle. It is also frequently contended that because possession of a driver's license is so integrally related to life in today's society, the sanction is disproportionately severe in comparison to the nature of the offense, particularly when the alcohol offense was a relatively innocuous or isolated event. Third, it has been claimed that the procedures used in suspending a license are inadequate and violate the due process rights of the individual.

Judicial rulings

These challenges have been relatively unsuccessful. The Wyoming Supreme Court did agree with the first two arguments in striking down the suspension of a driver's license in conjunction with a non-motor vehicle related violation of that state's underage drinking law. And just over a year ago, the Alaska Supreme Court agreed with the third argument when suspension occurred automatically upon arrest and did not require a conviction on the underlying offense.

However, courts in California, Illinois, Pennsylvania and Washington have upheld such sanctions. The grounds typically given for this sanction are that youth who drink alcohol are likely to do so while driving at some point, that the ingestion of alcohol by youth endangers their health and safety, and that the loss of driving privileges will deter this consumption. At the same time, courts have noted that the inferences involved seem tenuous. Nevertheless, absent empirical evidence that directly refutes them, the courts have generally upheld the use of this sanction.

Individuals under age 21 seem largely unmoved by calls to forego alcohol consumption, at least when it does not occur in conjunction with the use of a motor vehicle. The Institute of Medicine and the National Research Council, at the request of Congress, have undertaken a project to develop a strategy to reduce and prevent underage drinking. There is a surprising lack of social science research on whether judicial sanctions, such as the loss of driving privileges, will deter this behavior. Such research could greatly benefit this and similar initiatives and guide judicial review of related legislation.