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Hershey Summer Concert Series 2012- Underage Drinking and the PBT

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A person commits a summary offense if he or she, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses, or knowingly and intentionally transports any liquor or malt or brewed beverages.  

By Attorney Elisabeth K.H. Pasqualini, Criminal Lawyer, Harrisburg, PA

The Hershey Summer Concert Series for 2012 will feature the following artists:

June 23, 2012-  Demi Lovato

June 29, 2012-  Dave Matthews Band

July 3, 2012-  Stevie Nicks

July 14, 2012-  Nickelback

August 11, 2012-  Big Time Rush

August 15, 2012-  Def Leppard

August 17 and August 18, 2012-  Summer Mix Tape

September 1, 2012-  Rock Allegiance

There is no doubt that the Derry Township Police Department and the State Police will have stepped-up enforcement for underage drinking and drug possession, such as marijuana.

A person commits a summary offense if he or she, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses, or knowingly and intentionally transports any liquor or malt or brewed beverages.  18 Pa.C.S. Section 6308.  For these purposes, it is not a defense that the liquor or malt or brewed beverage was consumed in a jurisdiction other than the jurisdiction where the citation for underage drinking was issued.  If you are convicted of underage drinking in PA, there is a strong likelihood that the consequences, including a license suspension, will follow you to your own state.  (See my mainsite page link for interstate license compacts).

In at least one case, the defendant was entitled to a reversal of his conviction for underage drinking, notwithstanding the fact that a police officer arrested the defendant at a party in a park while he stood next to a car with a can of beer on the hood and that the officer testified that he smelled what he believed to be beer on the defendant's breath, since consumption of alcohol by the defendant was not proven beyond a reasonable doubt where:

  1. There was no actual observation of the defendant either drinking or in possession of alcohol;
  2. There was no evidence that the defendant exhibited any degree of intoxication;
  3. There was no evidence to establish the alcoholic content of any beverage that the defendant might have consumed; and
  4. There was a reasonable possibility that the consumption of nonalcoholic or very low alcohol malt or brewed beverage accounted for the odor on the defendant's breath.

Do the Police Have to Offer a Portable Breathalyzer Test?

No. There is no obligation placed upon the police to make a PBT or some other form of Blood Alchohol test available prior to an arrest for underage drinking under the statute.  This is entirely different from a Driving Under the Influence, where police must offer you a test sample of your own.  (See my article link to prior article on DUI/Right to own test).  However, a preliminary breath test is reliable to discern the presence or absence of alcohol in a suspect's blood, so that the results are admissible to support a charge of underage drinking, and they create a rebuttable presumption that the defendant has engaged in the prohibited activity. 

So, If I Have a 'Positive PBT', Does It Mean I'm Guilty?

No, a positive preliminary breath test result is not per se proof that the defendant has engaged in underage drinking and he or she may present evidence to establish that the positive result was not the result of illegal ingestion of alcohol.  However, in a prosecution for underage drinking, it is not always necessary for the Commonwealth to have direct evidence of the alcoholic content of the beverage consumed; a conviction can be based on circumstantial evidence.

If you've been charged with Underage Drinking or Drug Possession at a Hershey Concert, it is important to have competent counsel represent you at your hearing before the magisterial district judge.  Do not risk your good name and reputation.  Have an attorney present.  You may contact the firm of Shaffer & Engle Law Offices, LLC to discuss your case for free.  You may call us toll free or email us with your questions today.

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