February 1, 1982

Mr. Larry Gullickson 
Attorney at Law 
Box 296 
Lake Preston, South Dakota 57249

Official Opinion No. 82-5

Underage Consumption of Low-Point Beer

Dear Mr. Gullickson:

You have requested an official opinion from this office in regard to the following question:

QUESTION: 

Is it a Class 2 misdemeanor for a person under the age of eighteen years to possess or consume low-point beer if such person was given the low-point beer by or in the immediate presence of a parent or guardian or spouse over twenty-one years of age if such individual does not remain in the presence of a parent, guardian or spouse as long as such beer is in the minor's possession or until consumption is complete?

You point out there is an apparent conflict between SDCL 35-9-1 and 35-9-4 as well as 35-6-27.  Each of these statutes was most recently enacted by the 1971 liquor recodification in Ch. 211.  SDCL 35-6-27 prohibits a licensee from selling or giving any low-point beer to any person who is less than eighteen years of age or to any person who is intoxicated at the time.  SDCL 35-9-1 makes it a misdemeanor to sell such a low-point beverage to any person under eighteen unless it is done in the immediate presence of a parent or guardian or spouse over the age of eighteen or by the prescription or direction of a duly licensed practitioner or nurse of the healing arts for medical purposes.  SDCL 35-9-4 makes it a misdemeanor for a person under the age of eighteen to purchase, attempt to purchase, possess or consume low-point beer or to misrepresent his age for the purpose of purchasing or attempting to purchase low-point beer from any licensee under Title 35.

Questions similar to these have been considered by my predecessors and are found at Official Opinions 68-19 and 71-37. The same conflict has existed in these laws for some time, that is, that while under one statute a licensee may not sell to a minor, under another statute the sale may take place if it is done in the presence of a parent or guardian, and under still another statute a minor, whether or not in the presence of a parent or guardian, is prohibited from purchasing, attempting to purchase, possessing or consuming certain alcoholic beverages.  Since we are dealing with a criminal violation we must apply the general rule in South Dakota that a crime must be statutorily defined with definiteness and certainty and a statute which either forbids or requires doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning violates the first essential of due process.  State v. Havens, 264 N.W.2d 918.   In this case where we have a statute which permits an act to be done and a statute which prohibits the same, it is my opinion that a crime could not successfully be charged because of vagueness. This is the import of the prior opinions referred to which attempted to harmonize the conflicting statutes and which basically say that the minor in the presence of a parent or guardian may purchase, possess and consume alcoholic beverages.  It would be my opinion further that the presence of the parent, guardian, or spouse is crucial to the permissibility of the act and that the sale, use, possession, or consumption may not take place unless the  minor is in the immediate presence.  Thus, if the parent leaves, the minor may no longer purchase, possess or consume such alcoholic beverages.

Respectfully submitted,

Mark V. Meierhenry
Attorney General