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If I am under 21, is it legal in Illinois to drink as long as I am not drunk?

There are numerous means by which a person under the age of 21 (youthful drivers) is acting against the Illinois Vehicle. 625 ILCS Chapters 2-6 and 11 contain the statutory law relating to Driving Under the Influences offenses in Illinois. Many of the Illinois traffic laws are written in broad terms and the discretion for enforcing them is vested in the Illinois Secretary of State. 625 ILCS 5/2-101; People v. Pine, 129 Ill. 2d 88, 542 N.E.2d 711, 134 Ill. Dec. 365 (1989)

The Secretary of State has implemented administrative rules to carry out his statutory mandate. 92 Illinois Administrative Code (IAC), Parts 1000, 1001, 1030, 1040 Although the Secretary of State has broad discretion, the rules he promulgates may not exceed his statutory mandate. Franz v. Edgar (1985), 133 Ill.App.3d 513, 88 Ill.Dec. 557, 478 N.E.2d 1165, appeal denied, 108 Ill.2d (31).

You must first look to the Illinois Vehicle Code to determine if a certain action related to the safe operation of motor vehicles is legal. No driver may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken. 625 ILCS 5/11-502 This is commonly referred to as illegal transportation of alcohol or “open container”.

Upon determining that an act is illegal, you must next look to the statutes and rules to discern the penalties and driver’s license sanctions. The Illinois Vehicle Code provides that a youthful offender who is convicted of illegal transportation may, at the discretion of the Secretary of State, suffer a driver’s license suspension. 625 ILCS 5/6-206(a)(33)

The Vehicle Code does not make the suspension automatic or indicate for how long it will be. For the answer to this, you must refer to the Administrative Code. 92 IAC §1040.43 a) provides that the Secretary “shall”(mandatory) suspend for 12 months.

On the other hand, the Vehicle Code is specific with regards to a second conviction. A second conviction while under the age of 21 is a mandatory revocation as provided by statute. 625 ILCS 5/6-205(a)(13)

A youthful offender may also be suspended for a conviction due to a violation of Liquor Control Act of 1934 or similar local ordinance. 625 ILCS 5/6-206(a)(38). Again, the Vehicle Code has no specific requirement that the Secretary of State must suspend for a conviction. But the IAC does. 92 IAC §1040.34 a) 9)

By contrast, the Vehicle Code requires a 3-month suspension, no more, no less, if you receive supervision for a violation of the Liquor Control Act of 1934. 625 ILCS 5/6-206(a)(43) and occupy a motor vehicle.  A 12-month suspension for such a violation is excessive. Webb v. White, 364 Ill. App. 3d 650, 850 N.E.2d 233, 302 Ill. Dec. 796 (4th Dist.2006)

In none of the above circumstances is it necessary for the state to prove that you were drinking, or drunk, or that you were driving or intended to do so. Any discernible connection with alcohol (a beer in your hand for instance) is sufficient. People v. Boeckmann, 238 Ill. 2d 1, 932 N.E.2d 998, 342 Ill. Dec. 537 (2010)

There is also the matter of a “fake ID”, meaning that you are under 21 and are found in possession of a license or identification card that belongs to someone over the age of 21. This is grounds for the Secretary of State to impose a suspension of your driver’s license 625 ILCS 5/6-206(a)(10)

The administrative code states that a suspension will be imposed for 12 months. (92 IAC §1040.32 a) 3) This is longer that a drinking ticket because having a fake ID creates the added danger that you will purchase alcohol for others and for yourself on other occasions. The Secretary does not have to prove that you used the ID; mere possession is enough. Freed v. Ryan, 301 Ill. App. 3d 952, 704 N.E.2d 746, 235 Ill. Dec. 173 (1st Dist. 1998)

Strangely, the license penalties for drinking after driving, the Zero Tolerance law, are only 3 months if you take a test and blow above zero but lower than .08 and 6 months if you refuse. 625 ILCS 5/11-501.8 You may apply for a hardship license during the suspension. 92 Ill. Adm. Code §1001.600

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