Underage Drinking & the Law

What parents need to know now about the new Social Host Laws

Former White House attorney accuses Orange County Deputy DA of improper lobbying

DDA McIntire

Click on photo for video of Deputy DA McIntire’s full statement

[Note from Editor: The Social Host Ordinance was passed by the Laguna Beach City Council despite vocal public opposition on December 4, 2012 and is currently in effect]

Assistant District Attorney lobbies the Laguna Beach City Council for a Social Host Ordinance in her official capacity

Was appearance before local city council an abuse of her office, lobbying under the color of law?

By Howard Hills, Guest Columnist

On November 13, 2012, Orange County Deputy District Attorney Anna McIntire appeared before the Laguna Beach City Council to lobby for adoption of a Social Host Ordinance (SHO), making it a crime to allow a gathering in a private home at which an adult “knows or reasonably should have known” minors had access to alcohol. The SHO was explicitly and without reservation endorsed by Deputy DA McIntire in her official capacity – including provisions making hosting of a gathering a crime if adults present failed to take “reasonable steps” to prevent minors from drinking. If an adult “in control” of the gathering failed to take such reasonable steps, the act of allowing the gathering retroactively became a crime, and the gathering itself became illegal. The SHO she endorsed did not require as an element of the crime, as California state law does, that police have evidence of a specific act that constitutes serving, providing or offering alcohol to a minor alcohol.

Under the “reasonable steps” standard in the SHO that McIntire endorsed, the ordinance provided that adult hosts had a “legal duty” to inspect government issued ID’s to confirm whether guests could drink at the gathering, and prevent underage guests from doing so. The SHO she endorsed in the name of the County of Orange and the District Attorney also imposed a “legal duty” on any adult “in control” of the gathering to prevent an amount of alcohol from being present on the premises where a gathering is taking place that exceeds the amount to be consumed by guests who are of legal age to consume alcohol. McIntire did not have any problem with the utter absurdity of this provision and the impossibility of compliance.

At the outset of her presentation to the elected City Council in a town within her official jurisdiction, McIntire introduced and identified herself as a “Deputy District Attorney in the Vehicular Homicide Unit.” She stated that her duties included prosecution of “DUI cases resulting in death.” She also stated that her duties include “an obligation to reduce deaths” caused by DUI offenders.

Leaving no doubt that she was testifying in her official capacity, she stated the so-called duty to promote prevention through political lobbying was “…why I and my office is [sic] in favor of the SHO.” Yet, she failed to cite the statutory authority or official authorization for her to make political lobbying to prevent teen drinking in order to reduce DUI deaths part of her official duties as a prosecutor in the Office of the District Attorney, whose actual official duties otherwise appear to relate exclusively to proving in court when a crime under her official cognizance has been committed.

McIntire then asserted before the City Council and the public that the proposed SHO to be voted on that night would “bridge the gap that exists with current state law.” The first example of an applicable state law she cited as deficient and in need of augmentation by a local ordinance was CA Penal Code Section 272, under which serving a minor alcohol is included in the misdemeanor crime of contributing to the delinquency of a minor. With regard to Section 272, McIntire stated:

“This statute requires that we prove in court that an individual promotes, encourages or causes a minor to drink…this is obviously something that is difficult to do in a social host situation…The courts have said knowledge is not enough, we must show the adult is actually doing something to promote or cause a minor to drink.”

Wait. Isn’t proving crimes as defined by the legislature and the courts her job? Didn’t she take an oath to uphold the laws as enacted by the legislature and interpreted by the courts? Telling the City Council the state law under which serving minors has been successfully prosecuted for decades is so “difficult” that they should vote for the SHO was not the end of it. McIntire was just getting warmed up.

The next statute she described as insufficient was CA Business & Professions Code Section 25658, which makes it a crime to serve alcohol to minors, but generally is enforced primarily on the premises of businesses. In respect to this state law, McIntire stated, “It is hard for a law enforcement officer to determine who actually furnished…from evidence of who actually gave it to minors on the premises.”

Wait. Didn’t she say it was in the social host context that proof of specific acts was difficult? Now, she was insisting that even on public access premises the requirement of specific acts under state law is too onerous, making it necessary for the council members to cast their votes in favor of the SHO that very night.

On the basis of her assessment that applicable state law hinders effective deterrence of teen drinking, McIntire told the City Council, the large public crowd present, those watching the proceedings on television and the press covering the story:

“Some concerns have been raised that this ordinance does nothing that existing state law does not do…State law is more broad and requires charges to be brought by the District Attorney…Council members, we ask that you vote in favor of the SHO…Because it does provide avenues that do not exist under current state law to combat teenage drinking.”

Wait. Is the purpose of the state law she is sworn to uphold to prevent teen drinking, or prevent adults from serving alcohol to minors? State law already prohibits serving minors, and the SHO McIntire endorsed did not make teen drinking any more of a crime than it already is under state law. It only makes it a crime for an adult to host a gathering where teens drink, even if the adult does not knowingly and intentionally take a specific action to serve or provide the alcohol to the minor.

Penetrating this fog of confusion in McIntire’s testimony, the only logical interpretation the City Council and public could give to her testimony was that the SHO would be a more effective deterrent to teen drinking than referral of cases to the District Attorney for prosecution under applicable state law.

To those present the only meaning that could be given to her testimony was that the DA’s office believes a local law that can be prosecuted by the local police, exercising local discretion under the supervision of the City Manager and City Council, is needed because the state legislature and courts have not provided law enforcement with the tools to “keep kids safe” from the illegal serving of alcohol to minors.

If the latter were true, fair enough. However, teen drinking is at historical lows nationwide, and in Laguna Beach the statistics, for the year before McIntire testified, reportedly showed only one case involving teen alcohol use while driving. In addition, the California state programs for prosecution of adults who contribute to delinquency of minor by providing alcohol to kids triggers immediate intervention to protect kids and support family recovery, by some measures considered among the best in the nation.

So what is McIntire’s real agenda? DUI death cases? Teen drinking? Who knows?

But the most pronounced theme was her repeated emphasis on what she, with great specificity, characterized as the impediments to application of state law posed by the elements of proof required by the state legislature and courts to convict adults who serve minors. Indeed, she rather openly disdains the “difficulty” of investigating crimes under applicable state law, and the problems of proof this poses for prosecutors.

Coupled with her complaints about the courts requiring knowledge, intent, and specific acts in order to convict a defendant, her testimony constitutes an expression of her professional and official preference for the SHO over state law as a means to combat teen drinking. Missing is any empirical evidence that a SHO will reduce DUI offenses, much less deaths caused by DUI offenders, which is the only topic on which she was even arguably qualified to give testimony in her official capacity.

In this context, it also is vitally important to note that the SHO she endorsed reduces the first offense to an infraction, no matter how aggravated the alleged crime. Thus, for all her disparagement of state laws and state courts for requiring prosecutorial capability to meet such onerous requirements as actual proof of knowledge and specific acts, one suspects she would see it all much differently if proceeding under state law instead of a local SHO would advance her career.

For example, in any aggravated first offense case in which proof of a violation of CA Penal Code Section 272 in a state court is not beyond the level of “difficulty” she finds so burdensome, no doubt McIntire would insist on prosecution under the state law she so disdains. Since she would not be involved unless there was a death implicated, it would come as no surprise if she prosecuted a minor DUI offender who caused a death for homicide, then used the violation of either the SHO and/or Section 272 as evidence in bringing homicide charges against by an adult who hosted the party at which the minor had access to alcohol.

While disparaging the criminal law criteria and elements of state law, McIntire said nothing to the City Council about the vague and imponderable criteria for defining a crime under the SHO. McIntire ineptly characterizes state law as “more broad” than the SHO, when the SHO is far more broadly worded and state law is actually far more specific, requiring the knowledge and specific act elements as she herself noted in complaining about how “difficult” it is to prove an offense under state law.

In her statement to the City Council as ADA, McIntire did not offer credible information relevant to the impact of teen drinking on vehicular homicides, or even the impact of the SHO trend on teen drinking. Instead, she explicitly stated that she was there on behalf of the District Attorney seeking to influence the votes of the elected City Council on the proposed ordinance.

Thus, she was there to lobby in her official capacity on a political question before the City Council. She did not address due process, family rights, equal protection, privacy or vagueness issues raised by opponents, or the impossibility of enforcing the “reasonable steps” and “legal duty” provisions of the SHO that she nevertheless urged the City Council to impose as a criminal law.

Based in large part on her forceful if substantively confused testimony, the City Council unanimously approved the SHO on first reading. After the meeting, more than one council member stated privately that her testimony had more impact than any other speaker.

Thereupon, a debate ensued in Laguna Beach for weeks in which federal and state constitutional and criminal law issues were brought into focus. Critical issues that McIntire ignored entirely or glossed over were brought forth by opponents whose concerns she had summarily dismissed in her testimony as misplaced and wrong. As a result, the SHO was revised to address crucial issues of both substantive and procedural due process in criminal cases that McIntire missed or obfuscated.

Against overwhelming public opposition, the much improved but still flawed and deficient SHO was passed on second reading, but not unanimously as it had been approved on first reading. In a closely divided vote, the Mayor and a newly elected council member voted against the SHO, citing its flaws and the lack of evidence its benefits, in terms of deterrence, would justify its intrusiveness on privacy and family rights.

It was no secret that the three votes in favor were cast to keep campaign promises another newly elected council member made to supporters of the SHO during the recent campaign in exchange for their support, rather than on the merits or in a form that addressed adequately the conspicuous prevalence of opposition to the measure.

Thus, through her legally inept, politically divisive and ethically questionable testimony, ADA McIntire acted in concert with supporters of the SHO and contributed to the creation of political pressure on the City Council to adopt a sloppy and unenforceable statute that never should have been enacted into law. She jumped right into the middle of a political battle and took sides in a controversial public debate, not in her own name but in the name of the District Attorney.

She misled the City Council to believe her testimony addressed an official matter within her professional responsibility to prosecute DUI homicides, but her statements turned out to be a disjointed diatribe on prevention of teen drinking. No matter how well-intentioned her statements were based on personal bias not official facts or policy. She testified without providing any supporting information or evidence about DUI offenses by teens in Laguna Beach, much less DUI deaths in which teen drinking addressed by SHO was a factor.

For presenting biased and misleading testimony in her official rather than her personal capacity, and doing so in the name of the District Attorney, and disparaging the validity and public good of the very state criminal laws she is sworn to uphold, ADA McIntire should be counseled, admonished and disciplined. A refresher course on why the state legislature and state courts require proof of knowledge, intent and specific acts before strident prosecutors can win convictions and send accused persons to jail would be a good start.

As it stands now her message to the community was that the legislature and courts have impeded justice by requiring due process of law and proof of the elements of a crime based on evidence. It was not a good civics lesson, to say the least. We would like to see some documentation to establish whether or not the District Attorney knew of and approved the testimony given in his name.

She seems like a sincere and dedicated public servant and, if so, her superiors should take the time and make the effort to use this episode as a professional training development opportunity. Intellectual honesty is an important element of impassioned advocacy, especially for those attorneys given the extraordinary powers prosecutors exercise.

Note: The views expressed by Mr. Hills are his personal opinions as a private citizen and do not reflect the views of any other person or organization.

Howard HillsHoward Hills has published scholarly work on constitutional, civil rights and international law issues since 1976, and his writing has been cited extensively in Congressional committee reports, federal court rulings and United Nations proceedings. He is a former Peace Corps lawyer who drafted constitutions and laws for new Pacific island nations of Micronesia, and a former Navy JAG lawyer and treaty negotiator on the National Security Council staff in the White House.From 1989 to 1993 he was General Counsel of a U.S. State Department agency promoting private sector investment and business driven solutions to economic development challenges in 130 countries. He is a third generation native of Laguna Beach, California, and he has been active in Laguna Beach and Orange County public policy issues since 1968, with a focus on civil rights of youth and families.

 

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