Thursday, September 26th, 2013

Underage Drinking Cannot Be a Jailable Offense & Related Implications

The Illinois Supreme Court’s decision in the case of In re Shelby R. determined that a minor cannot be sentenced to jail for a criminal act, if the same act would not be a criminal offense for an adult.  The Court further held that even a violation of probation for such an offense does not constitute a basis to incarcerate a minor.

The pertinent facts in Shelby R. are that a 14-year-old was charged with several criminal acts including Unlawful Consumption of Alcohol by a Minor—a Class A misdemeanor under the state statute (her blood alcohol content was 0.142).  The minor pled guilty to the alcohol offense and was sentenced to 18 months of probation.  During her probation, the minor tested positive for illicit substances, and the court revoked her probation and sentenced her to 364 days of detention.

The Supreme Court reasoned that the plain language of the Juvenile Court Act under Section 5-401(3) did not allow a term of imprisonment for underage drinking: “Except for minors accused of violation of an order of the court, any minor accused of any act under federal or State law, or a municipal or county ordinance that would not be illegal if committed by an adult, cannot be placed in jail [or other detention facility].  Juveniles accused with underage consumption and underage possession of alcohol cannot be placed in jail [or other detention facility].”

The prosecution argued that the minor in Shelby R. violated a court order by failing to abide by her terms of probation when she tested positive for illegal drugs, and this violation of a court order is a separate basis for incarceration.  The Court rejected that argument and adopted a narrow reading of the language “minors accused of violation of an order of the court” to mean “minors who have not yet been found guilty of violating a court order.”  Thus, a minor determined to be in violation of a court order is no longer accused of violating a court order, leaving no room to sentence the minor for an underage offense.

Local governments are advised to review ordinances pertaining to underage drinking, smoking, and similar age-based offenses, so that the ordinances do not provide a penalty which could include a period of incarceration.  For example, if any such ordinance is labeled as a “misdemeanor” without a prescribed fine-only penalty, it may be unenforceable in a court.


Brad Stewart

Author: Brad Stewart