Article

ZERO TOLERANCE

Persons under 21 who drink face hidden and serious dangers.

In response to federal legislation requiring tightening-up of statute relating to underage drinking as a condition for a state’s continuing to receive its full share of federal highway funds, the Mississippi Legislature amended Section 63-11-30 of the Mississippi Code which deals with driving while intoxicated.

The law, as amended, makes it unlawful for a person under the age of 21 to purchase alcoholic beverages, to operate a motor vehicle while having a blood alcohol concentration of two one-hundredths percent (.02%) or more, while persons above the age of twenty one years of age are allowed to have a blood alcohol concentrate of up to eight one-hundredths percent (.08%) before the statute is violated.

This age violation becomes critical when considered in light of the provisions of Subsection (5) of the Statute. This subsection provides that any person with an alcohol concentration above the prohibited level (.02% for drivers under the age of 21 years; .08% for drivers over the age of 21 years) and who in a negligent manner causes the death, disfigurement or permanent disability of another, is subject to prosecution for a felony which, upon conviction, carries a potential maximum penalty of 25 years in the penitentiary for each such injury and the sentencing may be ordered to be served consecutively; therefore, if in a single accident, for example, three persons are so injured, the offending driver could be sentenced to a prison term of 75 years.

The gross disparity between the treatment of persons under and over the age of 21 years is illustrated by the following hypothetical examples:

A person two days shy of his or her twenty-first birthday, while driving with a blood alcohol concentration of .02% negligently causes an accident resulting in the injuries described in the statute to two other persons, this driver could be charged with two felony offenses (one for each injured person) and upon conviction could be sentenced to 50 years in prison.

If the same driver under the same conditions with the same blood alcohol concentration happened to be two days or even one day past his or her twenty-first birthday, no criminal violation would have occurred.

While this statute would appear to unfairly discriminate against persons under the age of 21 years, the Mississippi Supreme Court has held that such disparate treatment does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution since its purpose is to “protect public safety” and to “prohibit under-age drinking and driving” which are legitimate governmental objectives and the statute is, therefore, constitutional.

In most instances, it does not require a large amount of an alcoholic beverage to produce a blood alcohol concentration of .02%. One-half a beer or even strong mouthwash might be enough. For persons under the age of 21, the consequences can be devastating for them and their families.