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Underage Drinking Laws in Virginia

Summer is here and school is out.  Whether it’s the weather, the urge to finish off high school years with a bang, the freedom of the college years, or simply the feeling of being young and invincible, studies suggest that first-time use of most substances, including alcohol, peaks during the summer months of June and July.  It is no secret that with a national drinking age of 21, millions of young people across the country imbibe alcohol illegally on a daily basis.

With very limited exceptions, Virginia law makes it a Class 1 misdemeanor[2] for minors to possess alcohol, and by statute minors can be charged for exhibiting “evidence of physical indicia of consumption of alcohol.”[3]  Minors can also be punished criminally for possessing or using fake ID’s to purchase alcohol.[4]  While the relative degree of prosecution of the crime of underage possession of alcohol – i.e. how vigorously the Commonwealth pursues conviction and respective punishment – varies by jurisdiction, minors who illegally possess alcohol can almost certainly count on some combination of community service, loss of driver’s license, and/or monetary fine.  Likewise, Virginia law punishes those who provide alcohol to minors where that person knows or has reason to know the minor is less than 21 years of age.[5]  Such persons also have criminal exposure for contributing to the delinquency of a minor.[6]

Once upon a time, law enforcement officers encountering underage drinking may have just made the incorrigible youths pour the alcohol out and called their parents.  However, with an unmistakable rise in underage drinking and its sometimes tragic consequences, or at the very least an increase in media attention to the issue, many law enforcement officers will issue charges and defer to the court system as to the respective punishment that is ultimately handed down.

In addition to the range of criminal penalties referenced above, Virginia case law has addressed imposition of civil liability for negligence on those who provide alcohol to minors.[8]  Although the general consensus is that Virginia courts do not recognize a cause of action against a social host for injuries resulting from the negligent provision of alcohol to a guest,[9]

Summer is here and school is out.  Whether it’s the weather, the urge to finish off high school years with a bang, the freedom of the college years, or simply the feeling of being young and invincible, studies suggest that first-time use of most substances, including alcohol, peaks during the summer months of June and July.[1]  It is no secret that with a national drinking age of 21, millions of young people across the country imbibe alcohol illegally on a daily basis.

With very limited exceptions, Virginia law makes it a Class 1 misdemeanor[2] for minors to possess alcohol, and by statute minors can be charged for exhibiting “evidence of physical indicia of consumption of alcohol.”[3]  Minors can also be punished criminally for possessing or using fake ID’s to purchase alcohol.[4]  While the relative degree of prosecution of the crime of underage possession of alcohol – i.e. how vigorously the Commonwealth pursues conviction and respective punishment – varies by jurisdiction, minors who illegally possess alcohol can almost certainly count on some combination of community service, loss of driver’s license, and/or monetary fine.  Likewise, Virginia law punishes those who provide alcohol to minors where that person knows or has reason to know the minor is less than 21 years of age.[5]  Such persons also have criminal exposure for contributing to the delinquency of a minor.[6]

Once upon a time, law enforcement officers encountering underage drinking may have just made the incorrigible youths pour the alcohol out and called their parents.  However, with an unmistakable rise in underage drinking and its sometimes tragic consequences[7], or at the very least an increase in media attention to the issue, many law enforcement officers will issue charges and defer to the court system as to the respective punishment that is ultimately handed down.

In addition to the range of criminal penalties referenced above, Virginia case law has addressed imposition of civil liability for negligence on those who provide alcohol to minors.[8]  Although the general consensus is that Virginia courts do not recognize a cause of action against a social host for injuries resulting from the negligent provision of alcohol to a guest,[9] the Virginia Supreme Court has said “[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”[10]  Therefore, it is arguable that an adult may be exposed to civil liability for turning a blind eye to underage drinking while minors are under their supervision.

The Virginia Department of Alcoholic Beverage Control (“ABC”) provides tips for hosting alcohol-free parties, and advises that parents clearly set a “no alcohol” rule, host alcohol-free parties, and remain vigilent.  While this is sound advice, there are conflicting opinions about whether having a more relaxed attitude toward alcohol and youth fosters a healthier attitude toward alcohol.  My own hometown of Berryville, Virginia somewhat jokingly calls itself “a quaint little drinking town with a farming problem.”  When I was much younger, it was not unusual for some parents to supervise underage drinking – the idea being that it was better for kids to drink under adult supervision since they were going to figure out a way to drink anyway.

Regardless of your view on whether the drinking age should be raised or lowered, kids should be introduced to alcohol in small quantities at a younger age or it should be strictly prohibited, there is no doubt that Virginia law imposes criminal punishment for underage consumption of alcohol and those who encourage it.  Although the civil context is less clear, the risks to promoting underage drinking clearly outweigh any perceived benefits.  Either way, when encountering underage drinking, the best advice is to do what any jury is instructed to do upon entering a courtroom: Don’t leave your common sense at the door.

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[1] Monthly Variation in Substance Use Initiation among Adolescents, Nat’l. Survey on Drug Use and Health, The NSDUH Report, July 2, 2012, http://archive.samhsa.gov/data/2k12/nsduh080/sr080initiationsubstanceuse2012.pdf (last visited July 3, 2017).
[2] A Class 1 misdemeanor is punishable by confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.  Va. Code § 18.2-11.
[3] Va. Code § 4.1-305.
[4] Va. Code §§ 4.1-305, 18.2-204.2
[5] Va. Code § 4.1-306.
[6] Va. Code § 18.2-371.
[7] See, e.g., Donna St. George, Teen Driver in Fatal Alcohol-relataed Crash is Sentenced to 18 Months in Jail, (September 10, 2015), https://www.washingtonpost.com/local/education/teen-driver-in-fatal-alcohol-related-crash-sentenced-to-18-months-in-jail/2015/09/10/5f871426-57be-11e5-b8c9-944725fcd3b9_story.html?utm_term=.5ea8ac2efe12 (last visited July 3, 2017).
[8] See Teape v. Ampuero, 73 Va. Cir, 7 (Va. Circuit 2006).
[9] Id.
[10] Kellerman v. McDonough, 278 Va. 478, 684 S.E. 2d 786 (2009).
[11] Virginia Alcohol Laws & Parental Responsibility, https://www.abc.virginia.gov/library/education/pdfs/parent.pdf?la=en
[12] Relaxed Attitudes Toward Alcohol and Youth May Increase Risk of Binge Drinking in College, Inside Science News Service / American Institute of Physics (June 11, 2009), https://www.sciencedaily.com/releases/2009/06/090610124823.htm (last visited July 3, 2017).