Underage Drinking

The Law

In Pennsylvania, the offense commonly called “underage drinking” encompasses a much broader range of conduct than just drinking. The “underage drinking” statute prohibits a person under 21 years old from:

  • purchasing,
  • trying to purchase,
  • consuming (drinking),
  • possessing,
  • or knowingly transporting:

Any beverage that contains half of a percent (0.50%) of alcohol-by-volume (a/b/v). Beware of drinks that are labeled as “non-alcoholic,” because they probably aren’t actually “non-alcoholic.” Even “non-alcoholic” beers like O’Doul’s contain 0.50% alcohol-by-volume, and persons under 21 years can still get in trouble from such “non-alcoholic” drinks.

The Initiation of the Case

There are a number of ways that the police can come across a violation of the Underage Drinking law, but the most common way is when someone calls the police to report a loud or obnoxious party. Once police arrive, some people may attempt to escape being detected by the police, but in doing so run the risk of being Tased, tackled, or otherwise injured during pursuit, in addition to facing extra charges. The police may issue you a citation for underage drinking “on the spot,” or they may mail it to you. A police officer cannot place you under arrest for suspected underage drinking unless you are violent, display a threat of imminently being violent, are disorderly, are breaching the peace, or are very drunk. You are required to respond to the citation within 10 business days of receiving it. You should consult with an attorney before responding, so that you will fully understand all of the consequences of each option you have available to you. Your attorney can determine whether or not the police encountered any incriminating evidence illegally. Any searches and seizures that were possibly conducted illegally will be challenged by your attorney, if you decide to hire one.

Underage drinking is considered a “summary offense,” but it is still technically considered to be a “crime” because it is listed in Pennsylvania’s Crimes Code. The charges are resolved in a “summary trial” before a Magisterial District Judge just like that for any other summary crime (the same as Retail Theft, Criminal Mischief, or Disorderly Conduct, when they are graded as summaries). You should display a high degree of formality in front of a Magisterial District Judge; dress professionally and be very polite to everyone you encounter.

The Breathalyzer

Once police have secured the area to make sure no one escapes their detection, they will begin to question each person, one-by-one, and will attempt to determine each person’s age and who has been drinking. Police will likely use a PBT (Preliminary Breath Test), more commonly known as a “breathalyzer,” to get more concrete evidence of whether or not a person has been drinking. While the results of a breathalyzer are not scientifically accurate enough to be admitted in a DUI (driving under the influence) case, for which specific numbers are very important, the results of a breathalyzer can be admissible in underage drinking cases, because the only thing the police have to prove is that an underage person drank any amount of alcohol. That said, many cases have recently been thrown out of Court in Pennsylvania as a result of the case of Commonwealth v. Brigidi. Once the police have proven that a breathalyzer test yielded a number greater than 0.00% BAC (blood-alcohol concentration), the burden shifts to the person charged to prove that such a result was not the result of an illegal consumption of alcohol, but rather that something else like prescription cough syrup caused the “positive” breathalyzer result.

The “Disorderly Conduct” Alternative

The police may choose to charge a suspected underage drinker with “disorderly conduct” instead of underage drinking, even where the underage drinker’s conduct was not at all disorderly. If the police issue you a citation for underage drinking, you can plead “Not Guilty” and nicely ask the police if they would change the charges to “disorderly conduct” if you feel that doing so would be in your best interest. A conviction for disorderly conduct carries different ramifications than does a conviction for underage drinking, as explained below.

The Consequences

If you are convicted of Underage Drinking, the consequences are as follows:

-Suspension of Driver’s License

  • For a length of time:
  • 90 days for the first conviction
  • 1 year for a second conviction
  • 2 years for a third/fourth/fifth/etc. conviction
  • You may qualify for an OLL, or “Occupational Limited License,” which would allow you to drive only for work-related activities.
  • If you don’t have a driver’s license when you are convicted, you will be prohibited from applying for a learner’s permit for the period of time your license would have been suspended had you had a license.

-Fine of up to $300, plus administrative costs of about $120.

  • For second and third convictions, the fine is $500, plus costs.

-Up to 90 days in jail (extremely rare to get any jail time).

-Notification of parents/guardians if under age 18.

-Cleaning your record:

  • Once you reach the age of 21, you can petition the court to “expunge,” or erase, any record of your charges and conviction, if you have satisfied all of the terms of your punishment.

If you are convicted of Disorderly Conduct, the consequences are as follows:

-NO suspension of Driver’s License (biggest ADVANTAGE).

-Fine of up to $300, plus administrative costs of about $120 (same as underage drinking)

-Up to 90 days in jail (extremely rare to get any jail time).

-Cleaning your record:

  • Must wait 5 Years from the date of conviction before you can petition the court to expunge any record of your charges and conviction, if you have satisfied all of the terms of your punishment and met other requirements (biggest DISADVANTAGE of being charged with disorderly conduct instead of underage drinking).

Alternative Punishment Options

For a first offense only (for either underage drinking OR disorderly conduct), the court may, either on its own or upon request of the defendant, order that the defendant is placed in an “adjudication alternative program.” Under this type of arrangement, the defendant is not required to plead guilty, and the court may order one or more of the following “alternative” punishments:

  • Community service
  • Alcohol-education classes
  • Any other reasonable punishment the judge feels fit

It is wise to accept the terms of the punishment and to do a good job while completing them. Upon completing whatever punishment the judge imposed (and showing to the judge that you have, in fact, completed the punishment), the court is required to dismiss, or “throw out,” whatever charges you were originally charged with. You are then relieved of any duty to pay fines or costs. HOWEVER, if you completed the “alternative” punishment pursuant to an UNDERAGE DRINKING charge, your license is still supposed to be suspended, and any subsequent charge of underage drinking will count as a second offense, even though the first charge was dismissed after completing the punishment. It is important to note that not every Court follows the aforementioned rule, so it really pays to have a good attorney help you navigate the system and make the wisest choices.

Appealing the District Judge’s Decision

If you or your attorney believe that the local Magisterial District Judge made a serious mistake regarding any of the applicable laws or procedures, or even if you simply don’t like the result, you have an absolute right to appeal the decision to The Court of Common Pleas (the system of trial courts in Pennsylvania) for the county you were convicted in. If you decide to appeal, you get a trial de novo, or “like new,” and get to present your case all over again, as if the first trial never even happened.