§ 65-B — Offense for one under age of twenty-one years to purchase or attempt to purchase an alcoholic beverage through fraudulent means

§ 65-b. Offense for one under age of twenty-one years to purchase or\nattempt to purchase an alcoholic beverage through fraudulent means. 1.\nAs used in this section: (a) "A device capable of deciphering any\nelectronically readable format" or "device" shall mean any commercial\ndevice or combination of devices used at a point of sale or entry that\nis capable of reading the information encoded on the magnetic strip or\nbar code of a driver's license or non-driver identification card issued\nby the commissioner of motor vehicles;\n (b) "Card holder" means any person presenting a driver's license or\nnon-driver identification card to a licensee, or to the agent or\nemployee of such licensee under this chapter; and\n (c) "Transaction scan" means the process involving a device capable of\ndeciphering any electronically readable format by which a licensee, or\nagent or employee of a licensee under this chapter reviews a driver's\nlicense or non-driver identification card presented as a precondition\nfor the purchase of an alcoholic beverage as required by subdivision two\nof this section or as a precondition for admission to an establishment\nlicensed for the on-premises sale of alcoholic beverages where admission\nis restricted to persons twenty-one years or older.\n 2. (a) No person under the age of twenty-one years shall present or\noffer to any licensee under this chapter, or to the agent or employee of\nsuch licensee, any written evidence of age which is false, fraudulent or\nnot actually his own, for the purpose of purchasing or attempting to\npurchase any alcoholic beverage.\n (b) No licensee, or agent or employee of such licensee shall accept as\nwritten evidence of age by any such person for the purchase of any\nalcoholic beverage, any documentation other than: (i) a valid driver's\nlicense or non-driver identification card issued by the commissioner of\nmotor vehicles, the federal government, any United States territory,\ncommonwealth or possession, the District of Columbia, a state government\nwithin the United States or a provincial government of the dominion of\nCanada, or (ii) a valid passport issued by the United States government\nor any other country, or (iii) an identification card issued by the\narmed forces of the United States. Upon the presentation of such\ndriver's license or non-driver identification card issued by a\ngovernmental entity, such licensee or agent or employee thereof may\nperform a transaction scan as a precondition to the sale of any\nalcoholic beverage. Nothing in this section shall prohibit a licensee or\nagent or employee from performing such a transaction scan on any of the\nother documents listed in this subdivision if such documents include a\nbar code or magnetic strip that that may be scanned by a device capable\nof deciphering any electronically readable format.\n (c) In instances where the information deciphered by the transaction\nscan fails to match the information printed on the driver's license or\nnon-driver identification card presented by the card holder, or if the\ntransaction scan indicates that the information is false or fraudulent,\nthe attempted purchase of the alcoholic beverage shall be denied.\n 3. A person violating the provisions of paragraph (a) of subdivision\ntwo of this section shall be guilty of a violation and shall be\nsentenced in accordance with the following:\n (a) For a first violation, the court shall order payment of a fine of\nnot more than one hundred dollars and/or an appropriate amount of\ncommunity service not to exceed thirty hours. In addition, the court may\norder completion of an alcohol awareness program established pursuant to\nsection 19.25 of the mental hygiene law.\n (b) For a second violation, the court shall order payment of a fine of\nnot less than fifty dollars nor more than three hundred fifty dollars\nand/or an appropriate amount of community service not to exceed sixty\nhours. The court also shall order completion of an alcohol awareness\nprogram as referenced in paragraph (a) of this subdivision if such\nprogram has not previously been completed by the offender, unless the\ncourt determines that attendance at such program is not feasible due to\nthe lack of availability of such program within a reasonably close\nproximity to the locality in which the offender resides or matriculates,\nas appropriate.\n (c) For third and subsequent violations, the court shall order payment\nof a fine of not less than fifty dollars nor more than seven hundred\nfifty dollars and/or an appropriate amount of community service not to\nexceed ninety hours. The court also shall order that such person submit\nto an evaluation by an appropriate agency certified or licensed by the\noffice of alcoholism and substance abuse services to determine whether\nthe person suffers from the disease of alcoholism or alcohol abuse,\nunless the court determines that under the circumstances presented such\nan evaluation is not necessary, in which case the court shall state on\nthe record the basis for such determination. Payment for such evaluation\nshall be made by such person. If, based on such evaluation, a need for\ntreatment is indicated, such person may choose to participate in a\ntreatment plan developed by an agency certified or licensed by the\noffice of alcoholism and substance abuse services. If such person elects\nto participate in recommended treatment, the court shall order that\npayment of such fine and community service be suspended pending the\ncompletion of such treatment.\n (d) Evaluation procedures. For purposes of this subdivision, the\nfollowing shall apply:\n (i) The contents of an evaluation pursuant to paragraph (c) of this\nsubdivision shall be used for the sole purpose of determining if such\nperson suffers from the disease of alcoholism or alcohol abuse.\n (ii) The agency designated by the court to perform such evaluation\nshall conduct the evaluation and return the results to the court within\nthirty days, subject to any state or federal confidentiality law, rule\nor regulation governing the confidentiality of alcohol and substance\nabuse treatment records.\n (iii) The office of alcoholism and substance abuse services shall make\navailable to each supreme court law library in this state, or, if no\nsupreme court law library is available in a certain county, to the\ncounty court law library of such county, a list of agencies certified to\nperform evaluations as required by subdivision (f) of section 19.07 of\nthe mental hygiene law.\n (iv) All evaluations required under this subdivision shall be in\nwriting and the person so evaluated or his or her counsel shall receive\na copy of such evaluation prior to its use by the court.\n (v) A minor evaluated under this subdivision shall have, and shall be\ninformed by the court of, the right to obtain a second opinion regarding\nhis or her need for alcoholism treatment.\n 4. A person violating the provisions of paragraph (b) of subdivision\ntwo of this section shall be guilty of a violation punishable by a fine\nof not more than one hundred dollars, and/or an appropriate amount of\ncommunity service not to exceed thirty hours. In addition, the court may\norder completion of an alcohol training awareness program established\npursuant to subdivision twelve of section seventeen of this chapter\nwhere such program is located within a reasonably close proximity to the\nlocality in which the offender is employed or resides.\n 5. No determination of guilt pursuant to this section shall operate as\na disqualification of any such person subsequently to hold public\noffice, public employment, or as a forfeiture of any right or privilege\nor to receive any license granted by public authority; and no such\nperson shall be denominated a criminal by reason of such determination.\n 6. In addition to the penalties otherwise provided in subdivision\nthree of this section, if a determination is made sustaining a charge of\nillegally purchasing or attempting to illegally purchase an alcoholic\nbeverage, the court may suspend such person's license to drive a motor\nvehicle and the privilege of an unlicensed person of obtaining such\nlicense, in accordance with the following and for the following periods,\nif it is found that a driver's license was used for the purpose of such\nillegal purchase or attempt to illegally purchase; provided, however,\nthat where a person is sentenced pursuant to paragraph (b) or (c) of\nsubdivision three of this section, the court shall impose such license\nsuspension if it is found that a driver's license was used for the\npurpose of such illegal purchase or attempt to illegally purchase:\n (a) For a first violation of paragraph (a) of subdivision two of this\nsection, a three month suspension.\n (b) For a second violation of paragraph (a) of subdivision two of this\nsection, a six month suspension.\n (c) For a third or subsequent violation of paragraph (a) of\nsubdivision two of this section, a suspension for one year or until the\nholder reaches the age of twenty-one, whichever is the greater period of\ntime.\n Such person may thereafter apply for and be issued a restricted use\nlicense in accordance with the provisions of section five hundred thirty\nof the vehicle and traffic law.\n 7. (a) In any proceeding pursuant to subdivision one of section\nsixty-five of this article, it shall be an affirmative defense that such\nperson had produced a driver's license or non-driver identification card\napparently issued by a governmental entity, successfully completed the\ntransaction scan, and that the alcoholic beverage had been sold,\ndelivered or given to such person in reasonable reliance upon such\nidentification and transaction scan. In evaluating the applicability of\nsuch affirmative defense, the liquor authority shall take into\nconsideration any written policy adopted and implemented by the seller\nto carry out the provisions of this chapter. Use of a transaction scan\nshall not excuse any licensee under this chapter, or agent or employee\nof such licensee, from the exercise of reasonable diligence otherwise\nrequired by this section. Notwithstanding the above provisions, any such\naffirmative defense shall not be applicable in any other civil or\ncriminal proceeding, or in any other forum.\n (b) A licensee or agent or employee of a licensee may electronically\nor mechanically record and maintain only the information from a\ntransaction scan necessary to effectuate the purposes of this section.\nSuch information shall be limited to the following: (i) name, (ii) date\nof birth, (iii) driver's license or non-driver identification number,\nand (iv) expiration date. The liquor authority and the state\ncommissioner of motor vehicles shall jointly promulgate any regulation\nnecessary to govern the recording and maintenance of these records by a\nlicensee under this chapter. The liquor authority and the commissioner\nof health shall jointly promulgate any regulations necessary to ensure\nquality control in the use of transaction scan devices.\n 8. A licensee or agent or employee of such licensee shall only use the\ninformation recorded and maintained through the use of such devices for\nthe purposes contained in paragraph (a) of subdivision seven of this\nsection, and shall only use such devices for the purposes contained in\nsubdivision two of this section. No licensee or agent or employee of a\nlicensee shall resell or disseminate the information recorded during\nsuch scan to any third person. Such prohibited resale or dissemination\nincludes, but is not limited to, any advertising, marketing or\npromotional activities. Notwithstanding the restrictions imposed by this\nsubdivision, such records may be released pursuant to a court ordered\nsubpoena or pursuant to any other statute that specifically authorizes\nthe release of such information. Each violation of this subdivision\nshall be punishable by a civil penalty of not more than one thousand\ndollars.\n