While somewhat off the topic of OVI, a recent Ohio case is significant relating to the supervision of child drinking underage. The case, State v. Wise, 2010 Ohio 2040, involved the underage drinking by a 19 year old and subsequent arrest for violating Ohio underage drinking law, R.C. 4301.69(E)(1).
The law makes it illegal for anyone under the age of 21 to consume an alcoholic beverage nor be under the influence in public. An exception to the statute occurs when the child consumes alcohol with the permission of and under the supervision of an adult. In this case, the 19 year old consumed three beers at his mother’s home and then left with friends. He met several other friends and was walking down a street at 1:00 am, when a police officer stopped the group when he recognized a 16 year old with the group. The curfew for anyone under the age of 18 was 11:00 pm. The officer smelled alcohol emanating from the Defendant and charged him with underage drinking.
The crux of the case involved an interpretation of the statute. The lower court stated:
“Clearly, as long as defendant was in his mother’s home and she knew where he was, defendant was being supervised by his parent. However, when she granted him permission to leave, she could no longer ‘oversee’ or ‘direct’ the defendant. One could argue that defendant was done consuming alcohol, so he no longer needed to be supervised. However, this would seem to defeat the purpose of the supervision, as anyone knows the effects of alcohol take time to start and time to end. If the officer could detect that defendant was drinking, then he should still have been under the direction and oversight of his parent. He was not.”
The lower court found the defendant guilty of underage consumption, R.C. 4301.69(E)(1).
The appellate court disagreed. The court distinguished between the Defendant’s consumption of alcohol and his being intoxicated in a public place. In its decision the court stated,
“…the evidence is insufficient to support a conviction under the statute for consuming alcohol. It is undisputed that at the time appellant consumed the alcohol, he was supervised by a parent. At the point in time where appellant leaves the house, the issue no longer is his consumption of the alcohol under R.C. 4301.69(E)(1), but whether he is under the influence of alcohol in a public place.”
At that point the court applied the evidentiary rule in State v. Taylor (1981), 3 Ohio App.3d 197, 3 Ohio B. 224, 444 N.E.2d 481 where the court stated, “A mere odor of alcohol is not enough by itself to provide probable cause to arrest for driving under the influence of alcohol.” Applying this rule to the present case, the court pointed out there was no evidence presented that the defendant was under the influence at the time of his arrest. Therefore, there was insufficient evidence to support his conviction under R.C. 4301.69(E)(1) as no evidence was presented that the defendant was “under the influence” in a public place.
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