2020 Georgia Code
Title 3 - Alcoholic Beverages
Chapter 3 - Regulation of Alcoholic Beverages Generally
Article 2 - Prohibited Acts
§ 3-3-23. Furnishing To, Purchase Of, or Possession by Persons Under 21 Years of Age of Alcoholic Beverages; Identification; Serving, or Handling by Persons Under 21 Years of Age in the Course of Employment; Seller's Receipt of False Identification; Immunity for Seeking Medical Assistance for Alcohol Related Overdose

1. Except as otherwise authorized by law:
   1. No person knowingly, directly or through another person, shall furnish, cause to be furnished, or permit any person in such person's employ to furnish any alcoholic beverage to any person under 21 years of age;
   2. No person under 21 years of age shall purchase, attempt to purchase, or knowingly possess any alcoholic beverage;
   3. No person under 21 years of age shall misrepresent such person's age in any manner whatever for the purpose of obtaining illegally any alcoholic beverage;
   4. No person knowingly or intentionally shall act as an agent to purchase or acquire any alcoholic beverage for or on behalf of a person under 21 years of age; or
   5. No person under 21 years of age shall misrepresent his or her identity or use any false identification for the purpose of purchasing or obtaining any alcoholic beverage.
2. The prohibitions contained in paragraphs (1), (2), and (4) of subsection (a) of this Code section shall not apply with respect to the sale, purchase, or possession of alcoholic beverages for consumption:
   1. For medical purposes pursuant to a prescription of a physician duly authorized to practice medicine in this state; or
   2. At a religious ceremony.
3. The prohibitions contained in paragraphs (1), (2), and (4) of subsection (a) of this Code section shall not apply with respect to the possession of alcoholic beverages for consumption by a person under 21 years of age when the parent or guardian of the person under 21 years of age gives the alcoholic beverage to the person and when possession is in the home of the parent or guardian and such parent or guardian is present.
4. The prohibition contained in paragraph (1) of subsection (a) of this Code section shall not apply with respect to sale of alcoholic beverages by a person when such person has been furnished with proper identification showing that the person to whom the alcoholic beverage is sold is 21 years of age or older. For purposes of this subsection, the term "proper identification" means any document issued by a governmental agency containing a description of the person, such person's photograph, or both, and giving such person's date of birth and includes, without being limited to, a passport, military identification card, driver's license, or an identification card authorized under Code Sections 40-5-100 through 40-5-104. "Proper identification" shall not include a birth certificate and shall not include any traffic citation and complaint form.
5. If such conduct is not otherwise prohibited pursuant to Code Section 3-3-24, nothing contained in this Code section shall be construed to prohibit any person under 21 years of age from:
   1. Dispensing, serving, selling, or handling alcoholic beverages as a part of employment in any licensed establishment;
   2. Being employed in any establishment in which alcoholic beverages are distilled or manufactured; or
   3. Taking orders for and having possession of alcoholic beverages as a part of employment in a licensed establishment.
6. Testimony by any person under 21 years of age, when given in an administrative or judicial proceeding against another person for violation of any provision of this Code section, shall not be used in any administrative or judicial proceedings brought against such testifying person under 21 years of age.
7. Nothing in this Code section shall be construed to modify, amend, or supersede Chapter 11 of Title 15.
8. In any case where a reasonable or prudent person could reasonably be in doubt as to whether or not the person to whom an alcoholic beverage is to be sold or otherwise furnished is actually 21 years of age or older, it shall be the duty of the person selling or otherwise furnishing such alcoholic beverage to request to see and to be furnished with proper identification as provided for in subsection (d) of this Code section in order to verify the age of such person; and the failure to make such request and verification in any case where the person to whom the alcoholic beverage is sold or otherwise furnished is less than 21 years of age may be considered by the trier of fact in determining whether the person selling or otherwise furnishing such alcoholic beverage did so knowingly.
9. Any retailer or retail consumption dealer, or any person acting on behalf of such retailer or retail consumption dealer, who upon requesting proper identification from a person attempting to purchase alcoholic beverages from such retailer or retail consumption dealer pursuant to subsection (h) of this Code section is tendered a driver's license which indicates that such driver's license is falsified, is not the driver's license of the person presenting it, or that such person is under the age of 21 years, the person to whom said license is tendered shall be authorized to either write down the name, address, and license number or to seize and retain such driver's license and in either event shall immediately thereafter summon a law enforcement officer who shall be authorized to seize the license either at the scene or at such time as the license can be located. The procedures and rules connected with the retention of such license by the officer shall be the same as those provided for the acceptance of a driver's license as bail on arrest for traffic offenses pursuant to Code Section 17-6-11.
10. 1. As used in this subsection, the term:
       1. "Alcohol related overdose" means an acute condition, including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, resulting from the consumption or use of alcohol or that a layperson would reasonably believe to be resulting from the consumption or use of alcohol for which medical assistance is required.
       2. "Medical assistance" means aid provided to a person believed to be experiencing an alcohol related overdose by a health care professional licensed, registered, or certified under the laws of this state who, acting within his or her lawful scope of practice, may provide diagnosis, treatment, or emergency services relative to such overdose.
       3. "Seeks medical assistance" means accesses or assists in accessing the 9-1-1 system or otherwise contacts or assists in contacting law enforcement or a poison control center or provides care to a person experiencing or believed to be experiencing an alcohol related overdose while awaiting the arrival of medical assistance to aid such person.
    2. Any person who in good faith seeks medical assistance for someone who is experiencing an alcohol related overdose shall not be arrested, charged, or prosecuted for a violation of paragraphs (2) through (5) of subsection (a) of this Code section if the evidence for the arrest, charge, or prosecution of such violation resulted from seeking such medical assistance. Any person who is experiencing an alcohol related overdose and, in good faith, seeks medical assistance for himself or herself or is the subject of such a request shall not be arrested, charged, or prosecuted for a violation of paragraphs (2) through (5) of subsection (a) of this Code section if the evidence for the arrest, charge, or prosecution of such violation resulted from seeking such medical assistance. Any such person shall also not be subject to:
       1. Penalties for a violation of a permanent or temporary protective order or restraining order; or
       2. Sanctions for a violation of a condition of pretrial release, condition of probation, or condition of parole based on a violation of paragraphs (2) through (5) of subsection (a) of this Code section.
    3. Nothing in this subsection shall be construed to limit the admissibility of any evidence in connection with the investigation or prosecution of a crime with regard to a defendant who does not qualify for the protections of paragraph (2) of this subsection or with regard to other crimes committed by a person who otherwise qualifies for protection pursuant to paragraph (2) of this subsection. Nothing in this subsection shall be construed to limit any seizure of evidence or contraband otherwise permitted by law. Nothing herein shall be construed to limit or abridge the authority of a law enforcement officer to detain or take into custody a person in the course of an investigation or to effectuate an arrest for any offense except as provided in paragraph (2) of this subsection.

(Code 1933, § 5A-510, enacted by Ga. L. 1981, p. 1269, § 22; Ga. L. 1985, p. 753, §§ 1, 3; Ga. L. 1985, p. 782, §§ 1, 2; Ga. L. 1986, p. 789, §§ 1, 2; Ga. L. 1988, p. 1372, § 1; Ga. L. 1989, p. 1227, § 1; Ga. L. 1997, p. 1085, § 1; Ga. L. 2014, p. 683, § 2A-1/HB 965.)

- Designation of child who possesses alcoholic beverages as a "child in need of services," § 15-11-2(11).

Contributing to delinquency of minor, § 16-12-1.

Authority of State Board of Education regarding instructional programs and materials pertaining to effects of alcohol, § 20-2-13.

Age of majority, § 39-1-1.

Motor carriers prohibited from transporting passengers under age 21 drinking alcohol, § 40-1-108.

- Parents' right to action against persons selling or furnishing alcoholic beverages to underage child, § 51-1-18.

Liability for acts of intoxicated persons, § 51-1-40.

- For article recommending more consistency in age requirements of laws pertaining to welfare of minors, see 6 Ga. St. B. J. 189 (1969).

ANALYSIS

• General Consideration
• Jury Instructions
• Constitutionality

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided prior to the 1988 enactment of O.C.G.A. § 51-1-40, concerning liability for acts of intoxicated persons and under former Code 1993 §§ 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103.

- O.C.G.A. § 3-3-23 does not state that it is the duty of the person furnishing or selling liquor to make a determination as to whether or not the person to whom an alcoholic beverage is sold is a minor. Monteford v. State, 162 Ga. App. 491, 292 S.E.2d 93 (1982).

- A person who encourages a noticeably intoxicated person under the legal drinking age to become further intoxicated and who furnishes to such intoxicated person more alcohol, knowing that such person will soon be driving a vehicle, is liable in tort to a person injured by the negligence of such intoxicated driver. Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985).

O.C.G.A. § 51-1-6 does not establish a cause of action based on the violation of O.C.G.A. § 3-3-23. Lumpkin v. Mellow Mushroom, 256 Ga. App. 83, 567 S.E.2d 728 (2002).

- A consumer of alcohol cannot recover damages from the provider of the alcohol for injuries caused by the consumer to a third person. Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985).

This section does not create a civil cause of action. Keaton v. Kroger Co., 143 Ga. App. 23, 237 S.E.2d 443 (1977) (decided under former Code 1993 § 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103).

- Evidence was insufficient to show that any breach of duty by a bowling alley relating to alcohol was the proximate cause of the death of a passenger in a car driven by a minor who had been served beer at the bowling alley, where there was no evidence that any employee had knowledge that the minor was intoxicated or would be driving an automobile. Kalpa v. Perczak, 658 F. Supp. 235 (N.D. Ga. 1987).

"Force and arms" was not an element of the offenses of statutory rape, O.C.G.A. § 16-6-3, child molestation, O.C.G.A. § 16-6-4, or furnishing alcohol to a minor, O.C.G.A. § 3-3-23, and since an indictment was couched in the words of the statutes and correctly informed the defendant of the offenses charged, the indictment's allegation of use of force was mere surplusage and was properly disregarded. Colon v. State, 275 Ga. App. 73, 619 S.E.2d 773 (2005).

- In a negligence action, a drinking establishment breached its duty, under O.C.G.A. § 3-3-23(a)(1), to abstain from serving alcohol to an under aged drinker who later died from injuries sustained from falling from a jeep. Lumpkin v. Mellow Mushroom, 256 Ga. App. 83, 567 S.E.2d 728 (2002).

Offenses of furnishing alcohol to minors and maintaining a disorderly house did not merge, because each of the offenses had elements not required by the other and each prohibited a distinct type of criminal conduct. Tate v. State, 198 Ga. App. 276, 401 S.E.2d 549 (1991).

- O.C.G.A. § 3-3-23 (c)'s requirement to "give" appears to be satisfied if the parents constructively "give" the alcoholic beverage, by authorizing a person under 21 to consume alcohol in their home. Krebsbach v. State, 209 Ga. App. 474, 433 S.E.2d 649 (1993).

- Possession of alcohol by a minor may be either a delinquent or an unruly offense, and, since it may be a delinquent act, violating a court-ordered probation imposed for such an offense may likewise be a delinquent act. In re C.P., 217 Ga. App. 505, 458 S.E.2d 166 (1995).

- The effect of the Effingham County ordinance is to prohibit sales to minors under more specific circumstances than does O.C.G.A. § 3-3-23's general prohibition against furnishing alcoholic beverages to minors. In so doing, the Effingham County ordinance only augments and strengthens § 3-3-23, and does not conflict with that section in any manner. Accordingly, the Effingham County ordinance is not preempted by § 3-3-23, and hence is not invalid pursuant to Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a). Grovenstein v. Effingham County, 262 Ga. 45, 414 S.E.2d 207 (1992).

- Trial court erred by rejecting entertainers' challenge under the uniformity clause, Ga. Const. 1983, Art. III, Sec.VI, Para. IV(a), to a city's ordinance prohibiting persons aged 18 to 21 from entering adult entertainment establishments where alcohol was served because the ordinance conflicted with O.C.G.A. §§ 3-3-23 and3-3-24(a), allowing persons over 18 to work in such establishments. Willis v. City of Atlanta, 285 Ga. 775, 684 S.E.2d 271 (2009).

- Defendant's claim that the administration of an alco-sensor test was improper because a positive alco-sensor of a minor established guilt of the crime of minor in possession of alcohol by consumption under O.C.G.A. § 3-3-23 was incorrect; O.C.G.A. § 3-3-23(a) explicitly provided that underage alcohol consumption was not a crime if the consumption was otherwise authorized by law. Brown v. State, 299 Ga. App. 402, 683 S.E.2d 614 (2009).

- See Lee v. State, 201 Ga. App. 827, 412 S.E.2d 563 (1991); Gilbert v. State, 262 Ga. 840, 426 S.E.2d 155 (1993); Lee v. State, 224 Ga. App. 542, 481 S.E.2d 264 (1997); Baggs v. State, 265 Ga. App. 282, 593 S.E.2d 734 (2004).

Defendant's conviction for underage drinking of an alcoholic beverage was upheld on appeal since the police officer smelled alcohol on the defendant's breath in the county wherein the defendant was arrested, which was enough to establish venue, pursuant to O.C.G.A. § 17-2-2(h), and because the defendant never produced evidence that a parent or guardian gave the defendant the beer that the defendant admitted to drinking and that the possession of the beer was in the home and presence of a parent or guardian, the defendant failed to establish the affirmative defense under O.C.G.A. § 3-3-23(a)(2). Burchett v. State, 283 Ga. App. 271, 641 S.E.2d 262 (2007).

- Crimes of possession of alcoholic beverage by underage person and furnishing alcohol to minor do not require state to prove certain alcohol level in defendants. State v. Ealum, 283 Ga. App. 799, 643 S.E.2d 262 (2007).

Evidence was sufficient to support defendant's conviction for furnishing alcohol to a minor. The victim testified that defendant gave the victim, a minor, alcohol to drink in defendant's home, and the victim's parent testified that when the victim returned home, the victim's eyes were bloodshot and the parent could smell the alcohol on the victim's breath. Dockery v. State, 309 Ga. App. 584, 711 S.E.2d 100 (2011).

Exclusion in comprehensive business liability insurance policy applying to sale of intoxicating beverages to a minor or to an intoxicated person excluded coverage for claims based on violations of statute on sales of alcohol to minors and dram shop law and was not void as against public policy. Hartford Ins. Co. v. Franklin, 206 Ga. App. 193, 424 S.E.2d 803 (1992).

- The trial court erroneously dismissed an accusation charging the defendant with possession of alcohol by an underage person in violation of O.C.G.A. § 3-3-23(a)(2) based solely on the defendant's completion of an alcohol education course, without providing notice to the state or the defendant, and without conducting a sentencing hearing, as such impermissibly interfered with the state's right to prosecute and no defect on the face of the accusation existed; moreover, the trial court erred in withdrawing the defendant's no contest plea absent a formal defense motion seeking the plea. State v. Carr, 287 Ga. App. 691, 652 S.E.2d 597 (2007).

- See Hadaway v. State, 190 Ga. App. 5, 378 S.E.2d 127 (1989); Dickerson v. State, 193 Ga. App. 605, 388 S.E.2d 736 (1989), overruled on other grounds by Zilke v. State, 2016 Ga. LEXIS 422 (Ga. 2016).

Jury Instructions

Refusal of instruction on requirement to prove defendant's knowledge.

- When defendant was prosecuted under O.C.G.A. § 3-3-23(a)(1) for serving alcohol to a minor, it was not error for a trial court to refuse to give defendant's proffered instructions on the requirement to prove defendant's knowledge of the age of the person to whom alcohol was served or on mistake of fact because the jury was instructed, inter alia, on the requirement that defendant knowingly served alcohol to a minor, and, pursuant to § 3-3-23(h), that, when a reasonable person could reasonably be in doubt as to whether a person to whom alcohol was served was 21 years old or older, it was a defendant's duty to request identification and that defendant's failure to do so could be considered in determining if defendant knowingly furnished alcohol to a minor. Butler v. State, 298 Ga. App. 129, 679 S.E.2d 361 (2009).

- Defendant's conviction for serving alcohol to a minor, under O.C.G.A. § 3-3-23(a)(1), was reversed because: (1) the state relied on circumstantial evidence to show that defendant knowingly served alcohol to a minor; and (2) the trial court erroneously refused defendant's request for an instruction on circumstantial evidence under O.C.G.A. § 24-4-6. Butler v. State, 298 Ga. App. 129, 679 S.E.2d 361 (2009).

Cited in Bishop v. Fair Lanes Bowling, Inc., 623 F. Supp. 1195 (N.D. Ga. 1985); Spivey v. Sellers, 185 Ga. App. 241, 363 S.E.2d 856 (1987); Darracott v. State, 191 Ga. App. 675, 382 S.E.2d 664 (1989); Riley v. H & H Operations, Inc., 263 Ga. 652, 436 S.E.2d 659 (1993); In re B.J.G., 234 Ga. App. 285, 506 S.E.2d 449 (1998); Beaman v. City of Peachtree City, 256 Ga. App. 62, 567 S.E.2d 715 (2002); David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003); Penny v. McBride, 282 Ga. App. 590, 639 S.E.2d 561 (2006); Beckom v. State, 286 Ga. App. 38, 648 S.E.2d 656 (2007).

This section is not void for vagueness, as its clear intent is to preclude an individual from furnishing alcoholic beverages to a person less than 19 years of age unless that person is an active member of the military or meets the remaining exceptions to O.C.G.A. § 3-3-23. Kelley v. State, 252 Ga. 208, 312 S.E.2d 328 (1984).

- O.C.G.A. § 3-3-23 (purchase of alcoholic beverages) does not violate the equal treatment clause of the Fourteenth Amendment because it treats 18 year old members of the armed forces differently from all other 18 year olds. Kelley v. State, 252 Ga. 208, 312 S.E.2d 328 (1984).

- O.C.G.A. § 3-3-23 is constitutional and does not violate equal protection since the General Assembly made rational distinctions with respect to the possession of alcohol and recognized that young people were more accountable under certain supervised settings or conditions. Hanson v. State, 275 Ga. 470, 569 S.E.2d 513 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under former Code 1933, § 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

The sale of alcoholic beverages to minors is prohibited in this state. 1965-66 Op. Att'y Gen. No. 65-75 (rendered under former Code 1993 §§ 58-612 and Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, §§ 52, 157, 220 et seq., 243, 324.

- 48 C.J.S., Intoxicating Liquors, §§ 488 et seq., 511.

- Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306.

Entrapment to commit offense against laws regulating sales of liquor, 55 A.L.R.2d 1322.

Liability, under dramshop acts, of one who sells or furnishes liquor otherwise than in operation of regularly established liquor business, 8 A.L.R.3d 1412.

Criminal offense of selling liquor to a minor or permitting him to stay on licensed premises as affected by ignorance or mistake regarding his age, 12 A.L.R.3d 991.

Serving liquor to minor in home as unlawful sale or gift, 14 A.L.R.3d 1186.

What constitutes violation of enactment prohibiting sale of intoxicating liquor to minor, 89 A.L.R.3d 1256.

Liability of state or municipality in tort for damages arising out of sale of intoxicating liquor by state or municipally operated liquor store or establishment, 95 A.L.R.3d 1243.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

Intoxicating liquors: employer's liability for furnishing or permitting liquor on social occasion, 51 A.L.R.4th 1048.

Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.

Social host's liability for death or injuries incurred by person to whom alcohol was served, 54 A.L.R.5th 313.