BILL ANALYSIS Ó
AB 1128
Page 1
Date of Hearing: April 30, 2013
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1128 (Salas) - As Amended: April 18, 2010
SUMMARY : Makes it an alternate felony/misdemeanor with the
felony offense punishable by 16 months, two, or three years in a
county jail for any person convicted of selling or furnishing an
alcoholic beverage to a person under 21years of age, who
thereafter consumes the alcohol and proximately causes great
bodily injury (GBI) or death to himself, herself, or another
person, rather than a straight misdemeanor. Specifically, this
bill :
1)States that any person that sells to, purchases for,
furnishes, or gives away any alcoholic beverage to a person
under 21 years of age, and the person under 21 years of age
thereafter consumes the alcohol and proximately causes GBI or
death to himself, herself, or another person is guilty of a
felony punishable by 16 months, two, or three years in a
county jail.
2)Provides that a retail employee of a licensee shall not be
subject to a felony prosecution, as specified, for the sale of
alcoholic beverages to a person under the age of 21 unless the
retail employee knew the person to whom the beverage was sold
was under 21years of age.
EXISTING LAW :
1)States that every person who sells, furnishes, gives, or
causes to be sold, furnished, or given away, any alcoholic
beverage to any person under the age of 21 years is guilty of
a misdemeanor punishable by imprisonment in the county jail
not exceeding six month, by a fine not to exceed $1,000, or by
both a fine and imprisonment. [Business and Professions Code
Section 25658(a).]
2)States that any person who violates existing law by purchasing
any alcoholic beverage for, or furnishing, giving, or giving
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away any alcoholic beverage to, a person under the age of 21
years, and the person under the age of 21 years thereafter
consumes the alcohol and thereby proximately causes GBI or
death to himself, herself, or any other person is guilty of a
misdemeanor punishable by not less than six months or not more
than one year in a county jail. [Business and Professions
Code Section 25658(c).]
3)Provides that any on-sale licensee who knowingly permits a
person under the age of 21 years to consume any alcoholic
beverage in the on-sale premises, whether or not the licensee
has knowledge that the person is under the age of 21 years, is
guilty of a misdemeanor punishable by imprisonment in the
county jail not exceeding six month, by a fine not to exceed
$1,000, or by both a fine and imprisonment. [Business and
Professions Code Section 25658(d).]
4)Provides that except as provided by law, any person who
violates existing law by furnishing an alcoholic beverage, or
causing an alcoholic beverage to be furnished, to a minor
shall be punished by a fine of $1,000, no part of which shall
be suspended, and the person shall be required to perform not
less than 24 hours of community service during hours when the
person is not employed and is not attending school. [Business
and Professions Code Section 25658(e)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "On August 31,
2012, a student at Fresno State University drank to the point
of death at an off campus fraternity party. The deceased
student was one of 12 underage students who were provided
alcohol by three individuals ages 22, 24, and 28. According
to Fresno Police Chief Jerry Dyer, two of the individuals
bought eight bottles of distilled spirits, and took a group of
pledges into the 'trophy room' at the fraternity house. Chief
Dyer reported the deceased underage student was taken to
another room at some point, where 'sober brothers' would keep
an eye on him. It was about 1:30 a.m. when the victim was
found to be 'unresponsive.' He later died in a hospital. In
a press release, Fresno D.A. Elizabeth Egan said, 'Sadly, the
fact is that the death was 100 percent preventable.' "
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2)Defining the Elements of Business and Professions Code Section
25658(c) : Alcohol regulation has long devolved to the power
of the states under the Twenty-First Amendment. Business and
Professions Code Section 25658(c) does not explicitly require
that the offender have knowledge, intent, or some other mental
state when purchasing or furnishing the alcoholic beverage.
[In re Michael Lee Jennings (2004) 34 Cal. 4th 254, 262.] In
re Michael Lee Jennings deals squarely with the issue imagined
by the author. In that case, the defendant had a party where
underage attendants consumed alcohol and then got into an
accident resulting in GBI. The court stated, "The generalized
action of the typical social party host, providing libations
for his or her guests, do not run afoul of the more specific
Business and Professions Section 25658(c), because as a
general matter, such hosts cannot be said to have purchased
alcoholic beverages for any particular guest. To violate
Business and Professions Section 25658, one must not only
furnish alcohol to an underage person, one must purchase the
alcohol for that person (emphasis added). In light of the
plain meaning of the statutory language, we conclude that
Business and Professions Section 25658 applies to any
situation in which an individual purchases alcoholic beverages
for an underage person." (Id., at 266.) The most common
manifestation of this scenario is 'shoulder tapping', meaning
an underage person approaching an adult to buy liquor for
them."
3)Prior Legislation
a) AB 1657 (Runner), of the 2007-08 Legislative Session,
was identical to this bill in that AB 1657 made furnishing
an alcoholic beverage to a person under 21years of age who
proximately causes GBI or death a felony. AB 1657 failed
passage in the Senate Committee on Public Safety
b) AB 454 (Runner), of the 2005-06 Legislative Session, was
identical to this bill in that AB 454 made furnishing an
alcoholic beverage to a person under 21years of age who
proximately causes GBI or death a felony. AB 454 failed
passage in the Senate Committee on Public Safety.
c) AB 2967 (Runner), of the 2005-06 Legislative Session,
was identical to this bill in that AB 2967 made furnishing
an alcoholic beverage to a person under 21years of age who
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proximately causes GBI or death a felony. AB 2967 failed
passage in the Senate Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
California Narcotics Officers Association
Opposition
None
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744