It looks, smells, tastes like beer but boozing teens go free in Pa. Police angry as court demands lab tests

July 27, 1992|By Russell E. Eshleman Jr. | Russell E. Eshleman Jr.,Knight-Ridder News Service

MOUNT JOY, Pa. -- Hot car. Loud music. Cold beer.

For a couple of 18-year-olds zipping down the main drag of this tiny Lancaster County town on a sultry evening recently, it couldn't get any better than this.

But, believe it or not, even after the police showed up, pulled them over, issued them citations and sent them home to upset parents, it got better, much better.

The boys were never punished by the law.

"We witnessed the driver taking a swig from what looked like a beer bottle. We found open containers of Michelob Light and Coors Light in the front of the car by the seat," said Mount Joy Police Sgt. Ned R. Ensminger. "But the charges were dropped."

Why?

In the eyes of the state's legal system right now, even though that pungent, golden liquid inside an open beer bottle looks like beer, smells like beer and tastes like beer, it doesn't necessarily mean it is beer.

It has to be chemically tested and proven that it contains at least one-half of 1 percent alcohol.

That edict, made by the state Supreme Court two months ago, has left police officers throughout Pennsylvania, particularly in smaller communities, angry and frustrated.

Unless they confiscate the beer, pay to have it tested by a private laboratory or wait until the state police can do it, and sit through tedious hearings for what used to be routine cases, authorities have little hope right now of getting underage drinking convictions.

"We're losing all our underage drinking arrests," said Mount Joy Police Chief John Sweigart. "We don't even go to hearings now. It's a waste. If anybody has an attorney who's got a law degree from somewhere other than a matchbook cover, he'll beat it."

The problem stems from the court's 5-2 decision in May in a case involving Tau Kappa Epsilon fraternity at Pennsylvania State University in State College, which was charged in 1986 with serving minors at a party.

Undercover officers attended the party and made the arrests. Though it lost at both the Common Pleas and Superior Court levels, the fraternity won an appeal at the Supreme Court, which ruled that a chemical analysis, not testimony, was necessary to uphold underage drinking convictions.

"Familiarity with the taste and appearance of beer does not provide the certitude achieved by proper scientific analysis," Justice Stephen A. Zappala wrote for the majority. "The physical experience of drinking beer does not translate itself into an ability to ascertain what percentage of alcohol is contained in a liquid."

Without mentioning brands, Justice Zappala noted in his six-page opinion the availability of non-alcoholic beer, such as O'Doul's and Sharp's. There was no way to prove, he suggested, that the brews coming out of the fraternity's tap didn't contain less than one-half of 1 percent of alcohol.

Law-enforcement officials have interpreted the opinion to mean that, even in the case of youths who are caught with open bottles of beer, chemical tests are necessary to get convictions.

The ruling "defies common sense," said Delaware County District Attorney William H. Ryan Jr.

"When you have a beer party, everybody knows why these kids && are there," he said. "They're not there to drink O'Doul's."

Mr. Ryan also condemned Justice Zappala's opinion for being "open ended" and giving no clear direction as to whether testing is required for beer only, or also for wine and liquor.

Many law-enforcement officials are interpreting the decision to mean that only beer needs to be tested, since unlike wine and liquor, it is prohibited by law from having its percentage of alcohol printed on its label.

Justice James T. McDermott, who, along with Justice Rolf Larsen, voted against the fraternity in the case, wrote an impassioned dissent (Justice McDermott died a month after the case was decided).

"Such contortions," Justice McDermott said of testing, "only serve to undermine the respect for the legal process and to further the public perception that a clever lawyer is more important than the purpose of the law or the guilt or innocence of the defendant."

Justice McDermott also tinkered with a well-known saying in his dissent.

"If something walks like a duck, sounds like a duck, flies like a duck and swims like a duck, then it is a duck," he said, "without having an ornithologist explain . . . the biological intricacies that qualify a certain species of winged fowl as a duck."

Edward S. Blanarik Jr., the State College attorney who represented the fraternity, defended the majority's ruling, noting that the state "bears the burden of proving each and every element" of its case, including leaving no doubt that the stuff in beer cans and bottles is beer.

"It's similar to a drug conviction," he said. "You may know, I may know

and the police may know what a marijuana plant looks like, but if you're going to proceed . . . you have to have a laboratory analysis to establish it."

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