4-241

4-241. Selling or giving liquor to underage
person; illegally obtaining liquor by underage person; violation;
classification; definitions

A. If a licensee, an employee of the licensee or any other person questions or has
reason to question that the person ordering, purchasing, attempting to purchase or
otherwise procuring or attempting to procure the serving or delivery of spirituous liquor
or entering a portion of a licensed premises when the primary use is the sale or service
of spirituous liquor is under the legal drinking age, the licensee, employee of the
licensee or other person shall do all of the following:

1. Demand identification from the person.

2. Examine the identification to determine that the identification reasonably
appears to be a valid, unaltered identification that has not been defaced.

3. Examine the photograph in the identification and determine that the person
reasonably appears to be the same person in the identification.

4. Determine that the date of birth in the identification indicates the person is
not under the legal drinking age.

B. A licensee or an employee of the licensee who follows the procedures prescribed
in subsection A of this section and who records and retains a record of the person's
identification on this particular visit is not in violation of subsection J of this
section or section 4-244, paragraph 9 or 22. This defense applies to actions of the
licensee and all employees of the licensee after the procedure has been employed during
the particular visit to the licensed premises by the person. A licensee or an employee of
the licensee is not required to demand and examine identification of a person pursuant to
subsection A of this section if, during this visit to the licensed premises by the
person, the licensee or any employee of the licensee has previously followed the
procedure prescribed in subsection A of this section.

C. Proof that the licensee or employee followed the entire procedure prescribed in
subsection A of this section but did not record and retain a record as prescribed in
subsection B of this section is an affirmative defense to a criminal charge under
subsection J of this section or under section 4-244, paragraph 9 or 22 or a disciplinary
action under section 4-210 for a violation of subsection J of this section or section
4-244, paragraphs 9 or 22. This defense applies to actions of the licensee and all
employees of the licensee after the procedure has been employed during the particular
visit to the licensed premises by the person.

D. A licensee or an employee who has not recorded and retained a record of the
identification prescribed by subsection B of this section is presumed not to have
followed any of the elements prescribed in subsection A of this section.

E. For purposes of section 4-244, paragraph 22, a licensee or an employee who has
not recorded and retained a record of the identification prescribed by subsection B of
this section is presumed to know that the person entering or attempting to enter a
portion of a licensed premises when the primary use is the sale or service of spirituous
liquor is under the legal drinking age.

F. It is a defense to a violation of subsection A of this section if the person
ordering, purchasing, attempting to purchase or otherwise procuring or attempting to
procure the serving or delivery of spirituous liquor or to enter a portion of a licensed
premises when the primary use is the sale or service of spirituous liquor is not under
the legal drinking age.

G. A person penalized for a violation of subsection J of this section or section
4-244, paragraph 22 shall not be additionally penalized for a violation of subsection A
of this section relating to the same event.

H. The defenses provided in this section do not apply to a licensee or an employee
who has actual knowledge that the person exhibiting the identification is under the legal
drinking age.

I. Any of the following types of records are acceptable forms for recording the
person's identification:

1. A writing containing the type of identification, the date of issuance of the
identification, the name on the identification, the date of birth on the identification
and the signature of the person.

2. An electronic file or printed document produced by a device that reads the
person's age from the identification and that requires the signature of the person.

3. A dated and signed photocopy of the identification.

4. A photograph of the identification.

5. A digital copy of the identification.

J. An off-sale retail licensee or employee of an off-sale retail licensee shall
require an instrument of identification from any customer who appears to be under
twenty-seven years of age and who is using a drive-through or other physical feature of
the licensed premises that allows a customer to purchase spirituous liquor without
leaving the customer's vehicle.

K. The following written instruments are the only acceptable types of
identification:

1. An unexpired driver license issued by any state or Canada if the license
includes a picture of the licensee.

2. A nonoperating identification license issued pursuant to section 28-3165 or an
equivalent form of identification license issued by any state or Canada if the license
includes a picture of the person and the person's date of birth.

3. An armed forces identification card.

4. A valid unexpired passport or border crossing identification card that is issued
by a government or a voter card that is issued by the government of Mexico if the
passport or card contains a photograph of the person and the person's date of birth.

L. A person who is under the legal drinking age and who misrepresents the person's
age to any person by means of a written instrument of identification with the intent to
induce a person to sell, serve, give or furnish spirituous liquor contrary to law is
guilty of a class 1 misdemeanor.

M. A person who is under the legal drinking age and who solicits another person to
purchase, sell, give, serve or furnish spirituous liquor contrary to law is guilty of a
class 3 misdemeanor.

N. A person who is under the legal drinking age and who uses a fraudulent or false
written instrument of identification or identification of another person or uses a valid
license or identification of another person to gain access to a licensed establishment is
guilty of a class 1 misdemeanor.

O. A person who uses a driver or nonoperating identification license in violation
of subsection C or E of this section is subject to suspension of the driver or
nonoperating identification license as provided in section 28-3309. A person who does
not have a valid driver or nonoperating identification license and who uses a driver or
nonoperating identification license of another in violation of subsection C or E of this
section has the person's right to apply for a driver or nonoperating identification
license suspended as provided by section 28-3309.

P. A person who knowingly influences the sale, giving or serving of spirituous
liquor to a person under the legal drinking age by misrepresenting the age of such person
or who orders, requests, receives or procures spirituous liquor from any licensee,
employee or other person with the intent of selling, giving or serving it to a person
under the legal drinking age is guilty of a class 1 misdemeanor. A licensee or employee
of a licensee who has actual knowledge that a person is under the legal drinking age and
who admits the person into any portion of the licensed premises in violation of section
4-244, paragraph 22, is in violation of this subsection. In addition to other penalties
provided by law, a judge may suspend a driver license issued to or the driving privilege
of a person for not more than thirty days for a first conviction and not more than six
months for a second or subsequent conviction under this subsection.

Q. A person who is of legal drinking age and who is an occupant of unlicensed
premises is guilty of a class 1 misdemeanor if both of the following apply:

1. Such person knowingly allows a gathering on such unlicensed premises of two or
more persons who are under the legal drinking age and who are neither:

(a) Members of the immediate family of such person.

(b) Permanently residing with such person.

2. Such person knows or should know that one or more of the persons under the legal
drinking age is in possession of or consuming spirituous liquor on the unlicensed
premises.

R. For the purposes of subsection H of this section, "occupant" means a person who
has legal possession or the legal right to exclude others from the unlicensed premises.

S. A peace officer shall forward or electronically transfer to the director of the
department of transportation the affidavit required by section 28-3310 if the peace
officer has arrested a person for the commission of an offense for which, on conviction,
suspension of the license or privilege to operate a motor vehicle is required by section
28-3309, subsection A, B or D, or if the peace officer has confiscated a false
identification document used by the person to gain access to licensed premises.

T. A person who acts under a program of testing compliance with this title that is
approved by the director is not in violation of section 4-244.

U. Law enforcement agencies may use persons who are under the legal drinking age to
test compliance with this section and section 4-244, paragraph 9 by a licensee if the law
enforcement agency has reasonable suspicion that the licensee is violating this section
or section 4-244, paragraph 9. A person who is under the legal drinking age and who
purchases or attempts to purchase spirituous liquor under the direction of a law
enforcement agency pursuant to this subsection is immune from prosecution for that
purchase or attempted purchase. Law enforcement agencies may use a person under the legal
drinking age pursuant to this subsection only if:

1. The person is at least fifteen but not more than nineteen years of age.

2. The person is not employed on an incentive or quota basis.

3. The person's appearance is that of a person who is under the legal drinking age.

4. A photograph of the person is taken no more than twelve hours before the
purchase or attempted purchase. The photograph shall accurately depict the person's
appearance and attire. A licensee or an employee of a licensee who is cited for selling
spirituous liquor to a person under the legal drinking age pursuant to this subsection
shall be permitted to inspect the photograph immediately after the citation is issued.
The person's appearance at any trial or administrative hearing that results from a
citation shall not be substantially different from the person's appearance at the time
the citation was issued.

5. The person places, receives and pays for the person's order of spirituous
liquor. An adult shall not accompany the person onto the premises of the licensee.

6. The person does not consume any spirituous liquor.

V. The department may adopt rules to carry out the purposes of this section.