More seek trial under alcohol possession law

~ A lawyer representing several teen clients said the new penalties are "totally inappropriate."

The new law revoking driver's licenses for minors caught with alcohol is having an unintended but predictable effect. Defendants are asking for costly and time-consuming jury trials.

That's what Cape Girardeau County Prosecuting Attorney Morley Swingle predicted before the law took effect Aug. 28.

And while it means more work -- a jury trial can consume most of a day in such cases -- Swingle isn't grumbling.

"It really does not bother me when they plead not guilty and set something for trial," Swingle said. "If they have a jury trial and lose, they are responsible for the court costs."

But the uncertainty of paying costs for a trial -- which can be close to $1,000 for juror fees and mileage -- is worth gambling against the certain costs of a guilty plea, lawyer Malcolm Montgomery said.

Montgomery represents about a half-dozen clients charged with possessing alcohol. The new penalty for a first offense -- automatic suspension of driving privileges for 30 days -- can trigger huge increases in insurance rates, he said.

"And all for one mistake of having a beer when he or she is not driving," Montgomery said. "As far as I am concerned, it is totally inappropriate."

The law expanded the "Abuse and Lose" provisions that previously applied only to minors caught with alcohol while driving.

And Montgomery had some choice words for the lawmakers responsible for the change. The law isn't realistic, Montgomery said, and he blames political ambition for the new law. It is an unfair get-tough approach, he said.

"From a discretionary standpoint, this has gotten way out of hand," Montgomery said. "We have got a bunch of young, snot-nosed kids that all want to be governor in the future."

The law covers physical possession of alcohol, such as beer in a cup at a college party, and possession after consumption. A blood alcohol concentration of 0.02 percent on a breathalyzer is enough to trigger the law.

The penalty increases for additional convictions. A second conviction means loss of driving privileges for 90 days and the third offense means no driving for a year.

A standard offer for any minor charged with possessing alcohol is to either pay a fine or accept probation, Swingle said.

The loss of driving privileges applies only to the minor in possession of alcohol law. If a prosecutor changes the charge, the penalties don't apply.

But Swingle said that won't happen in Cape Girardeau County. "We don't reward people for asking for a trial," Swingle said. "The plea offer is there. They can take it or leave it."

Finding a jury of people who never took a drink while under 21 years old could be difficult. Montgomery said he remembers college parties he attended in Capaha Park or Arena Park where police officers checked to make sure everyone was calm but did not make arrests.

"I'm not saying that is OK," he said. "But taking driver's licenses? And who is paying those insurance premiums? The parents."

The trials, despite what might seem like simple circumstances, aren't slam-dunks, Swingle said. "Even when an officer actually sees the person take a sip of the alcohol, it has to be tested. They can claim it wasn't really alcohol."

The first trials under the law could be a test of whether the public agrees with the legislature that additional penalties are needed to stop underage drinking, Montgomery said. They could also show that the public is determined to uphold the law, whatever the result.

"Maybe in the end we will have to take our lumps," he said. "I want to at least test the waters. And I may be putting off what may be inevitable."

rkeller@semissourian.com

335-6611, extension 126