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Legal issues surrounding underage drinking
City Ordinances and State Laws Applicable to Underage Drinking
There are numerous laws and statutes that address the issues of alcohol offenses for persons under the age of 21. It is important to point out that the penalty for these offenses may be different depending on the age of the offender. Youths that are 17 years old and under who commit these offenses fall under the jurisdiction of the State's Children Code. Therefore, what is treated as a criminal offense for an adult, 18 years and older will be viewed as a delinquent act if committed by a minor under 18. These individuals fall under different legal jurisdictions in regards to the punitive actions that can be imposed against them. We will try to present some of the most common offenses that we see occurring in our community.
Click on a heading below to expand section.
Possession of Alcohol (MIP)
Delinquent Act Section 32A-2-3A(2)-applies to ages 17 years old and under
"buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse."
Misdemeanor: 60-7B-1C-applies to ages 18-20 years old
It is a violation of the Liquor Control Act for a minor to buy, attempt to buy, receive, possess or allow himself to be served with alcoholic beverages
Presenting/Making a False ID
Delinquent Act: "any altering or forging of a driver's license or permit or any making of a fictitious license or permit" 32A-2-3A(1)(h)-applies to minors 17 years old and under
Petty Misdemeanor: Liquor Control Act, applies to ages 18-20
"a minor who presents to any person licensed pursuant to the provisions of the Liquor Control Act or any employee, agent, or lessee of that person any written, printed or photostatic evidence of age or identity that is false, for the purposes of procuring or attempting to procure any alcoholic beverages, is guilty of a petty misdemeanor." 60-7B-7
Misdemeanor: Motor Vehicle Code, applies to age 18 and over "any person who uses or possesses an altered, forged, or fictitious driver's license or permit is guilty of a misdemeanor." 66-5-18A
Felony: Motor Vehicle Code, applies to ages 18 and over
"any person who alters or forges a driver's license or permit or who makes a fictitious driver's license or permit is guilty of a 4th degree felony." 66-5-18B
Open Container
Delinquent Act: Section 32A-2-29A,B
Misdemeanor: Motor Vehicle Code 66-8-138 (applies to anyone under 18 charged with a traffic violation and prosecuted as an adult in court)
"knowingly drink any alcoholic beverage or have in one's possession any receptacle containing alcohol which has been opened, had its seal broken or the contents of which have been partially removed, while in a motor vehicle, while on a public highway."
DWI
Delinquent Act: 32A-2-3A(1)(a)-applies to 17 years old and under "any driving while under the influence of intoxicating liquor or drugs" Misdemeanor: Motor Vehicle Code 66-8-102-applies to age 18 or over
"Drive a vehicle within the State while under the influence of intoxicating liquor, or while under the influence of any drug to a degree which renders the person incapable of driving safely; or drive with an alcohol concentration of .08 or more in the breath or blood."
Administrative License Revocation Relating to DWI
Law: Non-Criminal Sanction, applies to all drivers: Driving privileges will be revoked administratively (through MVD, not the courts) for driving in New Mexico with a blood or breath alcohol concentration of .02 or higher (if under age 21), or .08 or higher (if 21 or over), or .04 or higher (driving a commercial vehicle) or for refusing to take a chemical test. 6608-11B and C
License: Under 21: 1st offense: 6 months revocation; subsequent offense or any refusal; 1 year revocation. Under 18, DWI is a traffic violation that will set back graduated driving privileges for drivers under 18 for at least 90 days, 66-5-8C; see 66-5-1.1F for definition of a "traffic violation."
Selling or Serving Alcohol to a Minor
Felony (4th degree), applies to age 18 or over:
"to knowingly, (1) sell, serve or give alcoholic beverages to a minor or permit a minor to consume alcoholic beverage on the licensed premise; (2) buy alcoholic beverages for or procure the sale or service of alcoholic beverages to a minor; (3) deliver alcoholic beverages to a minor or (4) aid or assist a minor to buy, procure or be served with alcoholic beverages, 60-7B-1 (Minor here means someone under 21 years of age - 60-7B-E)
Felony (4th degree): Contributing to the Delinquency of a Minor: "any person committing any act or omitting the performance of any duty, which act or omission causes or tends to cause or encourage the delinquency of of any person under the age of 18 years, 30-6-3.
Offenses by Children (MIP-City Code Violation) 12-5-5
Applies to those under 21 years old:
"under the age of 21 years procuring, buying, purchasing, possessing or obtaining any alcoholic beverage"
Unlawfully Assisting Minors to Obtaining Alcoholic Liquors 12-5-4
"consists of either: (A) selling alcoholic liquor to a minor or serving, aiding or assisting a minor to buy, procure, obtain or be served alcoholic liquor; or (B) inducing any other person to sell, serve, or deliver any alcoholic beverage to a minor"
Failure of Parental Responsibility 12-5-6
"consists of a person knowingly permitting his child or ward to violate the provisions of 12-5-5"
Premise Liability 11-11-5
"Any occupant of property within Albuquerque city limits who know or should have known that property within their care and control is used to provide, offer, or permit the usage of illegal drugs, or whose property is not subject to the Liquor Control Act (60-7B-1 through 60-7B-13 NMSA 1978), and whose property is used to provide, offer, or permit the consumption of intoxicating liquors by 3 or more persons who are under the age of 21 without their parent's or guardian's knowledge or consent or the order of a practicing physician, or as part of a religious ceremony, and who have failed to use reasonable control and ordinary care to keep persons under the age of 21 from consuming intoxicating liquors on their property is in violation of this ordinance"