Minors, You Are What You Drink!: Arkansas's New Spin on Minors in ...

<strong>Minors</strong>, <strong>You</strong> <strong>Are</strong> <strong>What</strong> <strong>You</strong> <strong>Drink</strong>!: Arkansas’s
<strong>New</strong> <strong>Spin</strong> on <strong>Minors</strong> in Possession of Alcohol ∗
I. INTRODUCTION
In an attempt to tighten the reins on underage
drinking, the Arkansas General Assembly recently passed
Act 1152, which amended Arkansas’s law regarding minors
in possession of alcohol. 1 Prior to Act 1152, minors could
not be charged with being in possession of alcohol based on
the presence of alcohol in the body alone. 2 In fact,
Arkansas caselaw suggests that officers not only had to
hunt for evidence surrounding the minor but also had to
prove that such evidence was in the immediate control of
the minor. 3 Nonetheless, after a number of failed attempts,
the Arkansas General Assembly finally adopted what some
may call a strict no-tolerance position. 4 Section 3-3-203(a)
of the Arkansas Code (hereinafter the minor-in-possession
statute) now reads as follows:
It is unlawful for any person under twenty-one (21)
years of age to purchase or have in his or her
possession any intoxicating liquor, wine, or beer. For
the purposes of this section, intoxicating liquor, wine,
or beer in the body of a minor is deemed to be in his or
her possession. 5
∗ The author of this note would like to thank Professor Carlton Bailey of the
University of Arkansas School of Law in Fayetteville, Arkansas, for his relentless
guidance and support in the furtherance of this note. The author would also like to
thank her Note and Comment Editor, Wade McDougal, for his motivation and
direction. Last, but certainly not least, the author would like to thank her family for
their unfading inspiration.
1. Act 1152, 2011 Ark. Acts 5381, 5382 (codified at ARK. CODE ANN. § 3-3-
203(a) (Supp. 2011)).
2. Kastl v. State, 303 Ark. 358, 360, 796 S.W.2d 848, 849 (1990) (“[T]he statute
is clear that alcohol in the body of a minor shall not be deemed to be in his or her
possession.”).
3. See infra Part II.B.
4. Act 1152, 2011 Ark. Acts 5381, 5382 (codified at ARK. CODE ANN. § 3-3-
203(a) (Supp. 2011)).
5. ARK. CODE ANN. § 3-3-203(a) (Supp. 2011).

978 ARKANSAS LAW REVIEW [Vol. 65:977
Arkansas is not the only state that has enacted
internal-possession legislation permitting the presence of
alcohol in the body to constitute possession. Recently,
several states passed laws prohibiting what is commonly
referred to as internal possession of alcohol by a minor. 6
The Alcohol Policy Information System, an online resource
run by the National Institute of Health, defines internal
possession as the presence of alcohol in a minor’s system as
determined by a blood, urine, or breath test. 7
Arkansas’s adoption of Act 1152 seems to be in
response to the difficulty police officers historically faced in
proving actual or constructive possession. 8 Some Arkansas
police officers contend that this new statute will help crack
down on underage drinking. 9 For example, prior to Act
1152, minors would drink and make sure not to walk
around with alcohol in their hands. 10 One police officer
stated, “They’ll take a drink and they’ll set it down and
walk away.” 11 Before Act 1152, Arkansas caselaw
demonstrated that convicting a minor of being in possession
of alcohol required the state to prove that the minor was
either in actual or constructive possession of the alcohol. 12
If a court had evidence of alcohol present in the minor’s
body, the evidence would only be considered circumstantial
and could not constitute possession per se. 13
6. See infra note 102; see also Nat’l Inst. of Health, Nat’l Inst. on Alcohol
Abuse and Alcoholism, Underage <strong>Drink</strong>ing: Possession/Consumption/Internal
Possession of Alcohol, ALCOHOL POLICY INFO. SYS.,
http://www.alcoholpolicy.niaaa.nih.gov/Underage_Possession_Consumption_Interna
l_Possession_of_Alcohol.html (last updated Jan. 1, 2011) [hereinafter Underage
<strong>Drink</strong>ing] (listing Colorado, Kansas, Michigan, Missouri, <strong>New</strong> Hampshire, North
Carolina, South Carolina, and Wyoming as states that prohibit internal possession).
7. Underage <strong>Drink</strong>ing, supra note 6.
8. The parameters of actual and constructive possession are defined in Part
II.A.
9. Sara Forhetz, <strong>New</strong> Arkansas Law Cracks Down on Underage <strong>Drink</strong>ing:
Stricter Penalties for <strong>Minors</strong> in Possession, KY3 (May 5, 2011),
http://articles.ky3.com/2011-05-05/underage-drinking_29514974.
10. Id.
11. Id.
12. See, e.g., D.C. v. State, No. CA 94-316, 1995 WL 107297, at *2 (Ark. Ct.
App. Mar. 8, 1995) (citing Kastl v. State, 303 Ark. 358, 360, 796 S.W.2d 848, 849
(1990)).
13. See DeShields v. State, No. CA 03-1243, 2004 WL 2239403, at *2 (Ark. Ct.
App. Oct. 6, 2004).

2012] MINORS, YOU ARE WHAT YOU DRINK! 979
According to the new language of Arkansas’s minorin-possession
statute, the definition of possession has
expanded and has taken on a meaning different from the
general usage of the term. Webster’s Dictionary defines
possession as “the act of having or taking into control.” 14
This definition indicates that whether a person has or takes
control of a particular thing determines one’s possession of
it. Whether this idea of control is captured by the amended
language of the statute is unclear. In essence, Act 1152
suggests that all a police officer would have to do in order
to charge a minor with being in possession is show evidence
that alcohol was in the minor’s body at the time of arrest.
Such evidence does not seem to require a showing of
control. In addition, the language of Act 1152 is unclear as
to whether an officer would need additional evidence to
prove the minor had knowledge of consumption. With the
new, expanded definition of possession, Arkansas
presumably hopes to successfully combat underage
drinking by making possession easier for law enforcement
officials to prove. Act 1152 may, however, produce
unintended consequences that are more vexing than the
original concerns under the old law.
The purpose of this note is to shed light on some of the
issues that may arise as a result of Act 1152. Part II
explores the historical development of possession laws in
general and ends with a more particularized summary of
the development of minor-in-possession laws. This portion
of the note includes a discussion of how Arkansas courts
have defined possession in general and how courts have
dealt with possession of alcohol by minors before Act 1152.
Part III discusses the discrepancy that exists among
jurisdictions regarding the possession versus consumption
distinction. Part IV provides a brief summary of two states
that have declined to adopt internal-possession laws and
discusses the reasons behind their decisions. 15 Finally, Part
14. Possession Definition, MERRIAM-WEBSTER ONLINE DICTIONARY,
http://www.merriam-webster.com/dictionary/possession (last visited Sept. 24, 2012).
15. This Part illustrates that some state courts appear to oppose the internalpossession
principle because it attempts to expand the term “possession” beyond its
common-sense definition, it does not provide clarity as to whether knowledge of

980 ARKANSAS LAW REVIEW [Vol. 65:977
V compares Arkansas’s minor-in-possession statute with
internal-possession statutes of other states. This
comparison examines why Arkansas’s statute needs to be
further interpreted and clarified. For example, Arkansas’s
statute does not provide any guidance to an officer on how
to obtain evidence of alcohol in the body. 16 In addition,
unlike similar statutes in other states, Arkansas’s minor-inpossession
statute does not contemplate any exceptions,
nor does it provide any indication as to how to account for
knowledge of ingestion. 17 Part V ends with a brief analysis
of how a recent United States Supreme Court decision
affects the definition of custody with regard to minors, and
how an officer’s administration of a breath or blood test
might require a Miranda warning depending on the minor’s
age. This decision might make things more problematic for
officers in dealing with a minor in possession.
II. DEFINING POSSESSION: A BRIEF HISTORICAL
DEVELOPMENT
The first problem arising from Arkansas’s amended
minor-in-possession statute concerns the development and
expansion of possession laws. Over the years, possession
laws have become a pragmatic means of supporting the war
on drugs. 18 Establishing the possession of certain
substances as a crime made law enforcement very efficient
because, essentially, “possession is easier to prove than use,
distribution, or sale.” 19 Nonetheless, despite the fact that
possession laws make it easier to combat drug use and
distribution, how one defines possession under these
circumstances has proven difficult. In looking at the
various statutes and court decisions that have dealt with the
term, one can easily conclude that “[possession] remains
consumption is required, and it does not provide any consideration of whether the
act of consumption has to occur within a state’s jurisdiction.
16. ARK. CODE ANN. § 3-3-203(a) (Supp. 2011).
17. ARK. CODE ANN. § 3-3-203(a).
18. Donald T. Campbell, Case Comment, Criminal Law—Catch Me with a
Can: North Dakota’s Minor in Possession of Alcohol Statute Requires Proof of
“Actual” Possession, 70 N.D. L. REV. 1059, 1060 (1994).
19. Id. (internal quotations omitted).

2012] MINORS, YOU ARE WHAT YOU DRINK! 981
one of the most elusive and ambiguous of legal
constructs.” 20
A. Possession in Other Jurisdictions
Traditionally, the term possession was more prevalent
in circumstances involving property law. 21 One of the first
references to possession in the context of criminal law
occurred in larceny cases. 22 Larceny is defined as “[t]he
unlawful taking and carrying away of someone else’s
personal property with the intent to deprive the possessor
of it permanently.” 23 The consensus in larceny cases is that
possession of stolen property only occurs if a person is in
exclusive control of the property. 24 In State v. Castor, the
Supreme Court of Missouri specifically stated that
possession in larceny cases must be “recent, unexplained,
and exclusive.” 25 The court reasoned that constructive
possession, like constructive knowledge, might be sufficient
to establish civil liability but not criminal liability. 26 The
court further explained that possession in a criminal case
would require consideration of whether the possession was
20. Id. (alteration in original) (quoting Charles H. Whitebread & Ronald
Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 VA.
L. REV. 751, 751 (1972)).
21. Charles H. Whitebread & Ronald Stevens, Constructive Possession in
Narcotics Cases: To Have and Have Not, 58 VA. L. REV. 751, 751 (1972).
22. Id. at 754.
23. BLACK’S LAW DICTIONARY 959 (9th ed. 2009).
24. See People v. Hurley, 60 Cal. 74, 77 (1882) (“The possession must be
exclusive. A finding of stolen property in the prisoner’s house or apartment, is
equally competent in evidence against him, as a finding upon his person. But the
house or room must be proved to be in his exclusive occupation.”); Van Straaten v.
People, 56 P. 905, 906 (Colo. 1899) (“[P]ossession must be personal and exclusive,
recent and unexplained . . . .”); State v. Raymond, 46 Conn. 345, 348 (1878) (stating
that the alleged stolen property must be found in the exclusive possession of the
prisoner in order to convict for larceny); State v. Wright, 66 A. 364, 365 (Del. 1907)
(stating that larceny only occurs when it is proven that the accused had exclusive,
recent, and unexplained possession of the property); Roberson v. State, 24 So. 474,
479 (Fla. 1898) (noting that a conviction for larceny requires proof of exclusive
possession); Watts v. People, 68 N.E. 563, 567 (Ill. 1903) (stating that stolen property
must be exclusive in the defendant for a larceny conviction); State v. Stutches, 144
N.W. 597, 599 (Iowa 1913) (stating that possession must be exclusive for larceny
convictions).
25. 5 S.W. 906, 909 (Mo. 1887).
26. Id.

982 ARKANSAS LAW REVIEW [Vol. 65:977
actual and known to the defendant. 27 Applying this same
reasoning, in Tyler v. Commonwealth, the Virginia
Supreme Court ruled against the concept of constructive
possession holding that a person “can only be required to
account for the possession of things which he actually and
knowingly possessed, as, for example, where they are found
upon his person, or in his private apartment, or in a place of
which he kept the key.” 28
In response to the cultural mores of the 1920s, the need
for an expanded definition of possession became apparent
during the Prohibition Era. 29 For example, in State v.
Parent, an employee of a hotel was convicted of the illegal
possession of alcohol along with his employer. 30 Although
the employee argued that six other employees were on shift
that night and all had access to the alcohol in the pantry,
the court stated that the term possession included the act of
“having a thing in one’s power.” 31 This definition meant
that one was in possession if that person could exert
influence over a thing regardless of whether that person
actually did. 32 Similarly, in State v. Spillman, two
defendants were found in possession of intoxicating liquors
when they were walking toward the liquor and were the
only ones in the vicinity. 33 The two defendants were
arrested within a half of a block from where the alcohol was
found. 34 The court stated that one could be in possession
without actually having the items on one’s person. 35
Courts also used this expanded interpretation of
possession laws when dealing with narcotics cases. In a
California case, People v. Sinclair, the defendant was
convicted of possession although the police never observed
the drugs in the defendant’s physical control. 36 In this case,
27. Id.
28. 91 S.E. 171, 172 (Va. 1917).
29. George H. Singer, Constructive Possession of Controlled Substances: A
North Dakota Look at a Nationwide Problem, 68 N.D. L. REV. 981, 986 (1992).
30. 212 P. 1061, 1061 (Wash. 1923).
31. Id. at 1061-62.
32. Singer, supra note 29, at 987-88.
33. 188 P. 915, 916-17 (Wash. 1920).
34. Id. at 916.
35. Id. at 917.
36. 19 P.2d 23, 24 (Cal. Dist. Ct. App. 1933).

2012] MINORS, YOU ARE WHAT YOU DRINK! 983
the defendant, while driving his car and being followed by
the police, ordered another occupant in the car to throw the
drugs out the window. 37 The court rejected the defendant’s
contention that a charge of possession required that the
drugs be found on the suspect. 38 Instead, the court stated
that restricting the charge to actual possession “would
exclude entirely from the operation of the statute cases of
joint possession or possession by carrying the illegal article
in an automobile or other conveyance, or keeping it in
some place under the immediate and exclusive control of
the accused.” 39 The Sinclair case expanded the definition of
possession to include the ability of the defendant “to
exercise a directing influence over the drug”—what has
become known as constructive possession. 40 Although
actual possession is possession that occurs as “a matter of
fact,” constructive possession is viewed as a legal fiction
used by courts when actual possession cannot be proven. 41
B. Possession in Arkansas
Arkansas follows the Sinclair approach. Cary v. State
was one of the first cases in Arkansas that dealt with the
concepts of actual and constructive possession, obtaining
most of its interpretations and analyses from California
cases. 42 In Cary, the appellant was convicted of possession
with the intent to deliver. 43 He appealed his conviction
challenging the sufficiency of the evidence regarding
whether he was in actual or constructive possession of the
substance. 44 Relying on caselaw from other states,
particularly California, the Arkansas Supreme Court
concluded that exclusive possession is not required for a
conviction and that a defendant’s constructive possession of
contraband is sufficient if the defendant “maintains control
or a right to control the contraband.” 45
37. Id.
38. Id.
39. Id. (citation omitted).
40. Whitebread & Stevens, supra note 21, at 757.
41. Id. at 761-62.
42. See 259 Ark. 510, 517-18, 534 S.W.2d 230, 235-36 (1976).
43. Id. at 512, 534 S.W.2d at 233.
44. Id. at 515, 517, 534 S.W.2d at 234-35.
45. Id. at 517, 534 S.W.2d at 235-36.

984 ARKANSAS LAW REVIEW [Vol. 65:977
Arkansas courts continue to embrace this general idea
of possession. In Stanton v. State, the Arkansas Supreme
Court defined possession as the exercise of dominion or
control over a substance. 46 In addition, the court stated that
“[n]either exclusive nor actual, physical possession is
necessary to sustain a charge . . . . Rather, constructive
possession is sufficient.” 47 The court went a step further
and concluded that a conviction of possession required the
prosecutor to show that the defendant cared for, controlled,
or managed the substance and knew that the substance was
contraband. 48
Several other Arkansas cases reflect Arkansas’s
adoption of the principle of constructive possession. 49
Moreover, Arkansas courts have specified that “control and
knowledge can be inferred from the circumstances, such as
the proximity of the contraband to the accused, the fact that
it is in plain view, and the ownership of the property where
the contraband is found.” 50 In essence, with respect to
Arkansas caselaw, the term “possession” has maintained its
common meaning. However, the same does not hold true
in regard to Arkansas’s recent change to its minor-inpossession
law.
After the repeal of the Eighteenth Amendment of the
United States Constitution, which prohibited the sale of
intoxicating liquors, restrictions on alcohol possession and
consumption by minors became the norm throughout the
states. 51 Currently, states have laws prohibiting a minor’s
46. 344 Ark. 589, 598, 42 S.W.3d 474, 480 (2001).
47. Id. at 598-99, 42 S.W.3d at 480 (citation omitted).
48. Id. at 599, 42 S.W.3d at 481.
49. See Bailey v. State, 307 Ark. 448, 450-51, 821 S.W.2d 28, 30 (1991); Cary,
259 Ark. at 517, 534 S.W.2d at 235; Dodson v. State, 88 Ark. App. 380, 385, 199
S.W.3d 115, 118 (2004); Abshure v. State, 79 Ark. App. 317, 321-22, 87 S.W.3d 822,
826 (2002) (“Neither exclusive nor actual physical possession, however, is necessary
to sustain a charge of possessing contraband; rather, constructive possession is
sufficient.”).
50. Nichols v. State, 306 Ark. 417, 419-20, 815 S.W.2d 382, 384 (1991) (holding
that the elements of knowledge and control were inferred when the defendant was
found sitting at his kitchen table with evidence of the contraband in plain view); see
also Plotts v. State, 297 Ark. 66, 72, 759 S.W.2d 793, 796 (1988); Dodson, 88 Ark.
App. at 385, 199 S.W.3d at 118; Abshure, 79 Ark. App. at 322, 87 S.W.3d at 826.
51. Jeffrey A. Miron & Elina Tetelbaum, Did the Federal <strong>Drink</strong>ing Age Law
Save Lives?, REG., Spring 2009, at 10, 11, available at
http://www.cato.org/pubs/regulation/regv32n1/v32n1-1.pdf.

2012] MINORS, YOU ARE WHAT YOU DRINK! 985
possession, consumption, internal possession of alcohol, or
any combination of the three. 52 These prohibitions apply to
all persons younger than twenty-one years of age; however,
some states may allow for statutory exceptions. 53
Prior to Act 1152, most minor-in-possession cases in
Arkansas employed the same general definition of
possession as Arkansas cases dealing with the possession of
other illegal contraband. These cases demonstrated that
actual possession was not required to prove guilt, and
constructive possession could be proven by considering
various pieces of circumstantial evidence. 54
In Kastl v. State, a case decided prior to Act 1152, the
Arkansas Supreme Court had to determine whether the
circumstantial evidence was sufficient to support the
officer’s conclusion that the minor was in constructive
possession. 55 The court ultimately held that when evidence
of alcohol possession was subject to joint occupancy, the
state must provide “additional evidence necessary to link
the [minor] to possession.” 56 The appellant, Tracy Kastl,
was one of five passengers in a parked vehicle. 57 Two
officers on patrol spotted beer cans outside the vehicle and
decided to search the vehicle. 58 The officers found a six
pack of beer on the floor behind Kastl, and one of the
passengers claimed ownership of the beer. 59 The officers
then administered a portable breathalyzer test on all of the
passengers, the results of which indicated they all had
consumed alcohol. 60 However, this evidence was not
provided during the proceedings. 61 The officers further
52. Underage <strong>Drink</strong>ing, supra note 6.
53. Id.
54. See DeShields v. State, No. CA 03-1243, 2004 WL 2239403, at *2 (Ark. Ct.
App. Oct. 6, 2004); D.C. v. State, No. CA 94-316, 1995 WL 107297, at *2 (Ark. Ct.
App. Mar. 8, 1995); B.K.M. v. State, No. CA CR493-1200, 1994 WL 582306, at *2
(Ark. Ct. App. Oct. 19, 1994).
55. 303 Ark. 358, 358, 796 S.W.2d 848, 849 (1990).
56. Id. at 361, 796 S.W.2d. at 850.
57. Id. at 358, 796 S.W.2d. at 849.
58. Id. at 359, 796 S.W.2d. at 849.
59. Id.
60. Kastl, 303 Ark. at 359, 796 S.W.2d at 849.
61. Id.

986 ARKANSAS LAW REVIEW [Vol. 65:977
indicated that the smell of intoxicating liquors was on the
person of Kastl. 62
In order to prove constructive possession, the state
presented evidence that:
(1) [B]eer cans were found lying [sic] between the
vehicle in question and another parked vehicle; (2) a
six-pack of Coors Light beer was found lying inside the
vehicle in the hatch area behind the appellant, and
according to Officer Eisenhower, all the appellant
would have had to have done was just turn around and
reached and grabbed it [the beer]; and (3) the
appellant had a smell of intoxicating alcohol about her
person. 63
The court concluded that such evidence was not enough to
prove Kastl was in constructive possession of the alcohol. 64
In addition, because of the language of the pre-amended
statute, the court refused to give substantial weight to the
fact that the defendant had the smell of intoxicating liquor
on her person. 65
The Kastl court appeared to interpret the pre-amended
statute to mean that possession was essentially based solely
on the evidence that could be found near or around the
minor at the time of the arrest. The court’s analysis
supported the general definition of possession as it relates
to a person’s ability to control something. If one has an
alcohol bottle around one’s car or next to one’s chair, it is
apparent that the person could exercise dominion and
control over that alcohol. The fact that a person may have
exhibited signs of intoxication was simply not enough to
find that the person actually possessed the alcohol.
However, now that Arkansas’s minor-in-possession statute
explicitly permits evidence of consumption as amounting to
evidence of possession, the question is whether the
amended statute expands the definition of possession even
further. For example, under Arkansas’s minor-inpossession
statute, can the words consumption, use, and
62. Id. at 360, 796 S.W.2d. at 850.
63. Id. (internal quotation marks omitted).
64. Id. at 361, 796 S.W.2d at 850.
65. Kastl, 303 Ark. at 361, 796 S.W.2d at 850.

2012] MINORS, YOU ARE WHAT YOU DRINK! 987
possession all be used interchangeably? Jurisdictions are
split as to how this question should be answered.
III. THE TENSION BETWEEN “CONSUMPTION” AND
“POSSESSION”
A. Alcohol Cases
Evans v. State is one of the first decisions reflecting the
dichotomy between “consumption” and “possession” in
cases involving alcohol. 66 In that case, police officers found
three quarts of whisky near a public road. 67 About forty
minutes later, the police arrested the defendant who was
about one-fourth of a mile away from the location of the
whisky and charged him with possession. 68 Responding to
the recent adoption of the Prohibition of Alcohol
Amendment, the Alabama Court of Appeals held that the
smell of whiskey on a person’s breath or any evidence of
the substance within the person does not amount to
possession of the substance. 69 The court stated that
“[p]ossession of whisky within the meaning of the
prohibition law contemplates a control over the whisky,
whereas when the whisky is in the man the whisky controls
the man.” 70
Another case dealing with whether alcohol in a
person’s body amounts to possession is Nethercutt v.
Commonwealth. 71 In that case, the defendant was charged
with public drunkenness and possession of alcohol. 72 The
court concluded that, although the defendant apparently
had liquor in his body, such evidence did not constitute
possession. 73 Although Evans and Nethercutt arose in
response to the prohibition of alcohol as against all
individuals, there are many states that still hold fast to this
line of the reasoning in the context of minors in possession
of alcohol.
66. 132 So. 601, 601 (Ala. Ct. App. 1931).
67. Id.
68. Id.
69. Id.
70. Id.
71. 43 S.W.2d 330, 330 (Ky. Ct. App. 1931).
72. Id.
73. Id.

988 ARKANSAS LAW REVIEW [Vol. 65:977
B. Controlled Substances Cases
In cases involving controlled substances, most states
adhere to the same reasoning articulated in Evans and
Nethercutt and conclude that once a controlled substance or
any illegal drug is ingested, it is no longer said to be in one’s
possession. 74 The general consensus is that one cannot
continue to exert dominion or control over something that
has been ingested. 75 Therefore, such evidence must be
74. See, e.g., State v. Thronsen, 809 P.2d 941, 943 (Alaska Ct. App. 1991)
(holding that evidence of cocaine in the body does not amount to possession because
a person no longer has control over the substance); People v. Spann, 187 Cal. Rptr.
31, 36 (Ct. App. 1986) (holding that “possession of a controlled substance may not
be proven by its criminal use”); Green v. State, 398 S.E.2d 360, 362 (Ga. 1990)
(holding that “the presence of cocaine metabolites in body fluid is only
circumstantial or indirect evidence,” i.e., “evidence which only tends to establish
[that the person possessed cocaine] by proof of various facts, sustaining by their
consistency the hypothesis claimed” (internal quotations omitted)); State v. Vorm,
570 N.E.2d 109, 111 (Ind. Ct. App. 1991) (holding that the “mere presence of
cocaine metabolites in a blood or urine sample, without additional evidence, does
not constitute prima facie evidence of knowing and voluntary possession of
cocaine”); State v. Ramirez, 100 P.3d 94, 98 (Kan. 2004) (holding that evidence of a
drug in one’s bloodstream does not amount to possession under Kansas law); State
v. Flinchpaugh, 659 P.2d 208, 212 (Kan. 1983) (holding that “[d]iscovery of a drug in
a person's blood is circumstantial evidence tending to prove prior possession of the
drug, but it is not sufficient evidence to establish guilt beyond a reasonable doubt”);
Franklin v. State, 258 A.2d 767, 769 (Md. Ct. Spec. App. 1969) (holding that “once
the drug is ingested and assimilated into the taker's bodily system, it is no longer
within his control and/or possession”); State v. Lewis, 394 N.W.2d 212, 217 (Minn.
Ct. App. 1986) (holding that the “usual and ordinary meaning of the term
‘possession’ does not include substances injected into the body and assimilated into
the system,” therefore, evidence of morphine in the body, without more, does not
amount to possession); In re R.L.H., 116 P.3d 791, 795-96 (Mont. 2005) (holding that
evidence of a controlled substance in the body constitutes proof of possession “only
when accompanied by other corroborating evidence of knowing and voluntary
possession”); State v. Yanez, 553 P.2d 252, 252 (N.M. Ct. App. 1976) (holding that
the presence of morphine is only circumstantial evidence tending to show possession
and must be coupled with additional facts before amounting to a possession
offense); State v. Harris, 632 S.E.2d 534, 537 (N.C. Ct. App. 2006) (holding that “a
positive urine test, without more, does not satisfy the intent or the knowledge
requirement inherent in our statutory definition of possession”); State v. Daline, 30
P.3d 426, 430 (Or. Ct. App. 2001) (holding that “consumption of a controlled
substance does not constitute possession of a controlled substance because once it is
in the bloodstream a person can no longer exercise dominion or control over it”);
State v. Griffin, 584 N.W.2d 127, 136 (Wis. Ct. App. 1998) (holding that a positive
urinalysis test for cocaine does not constitute possession of the substance).
75. See, e.g., Franklin, 258 A.2d at 769.

2012] MINORS, YOU ARE WHAT YOU DRINK! 989
corroborated by additional facts in order to sustain a
possession charge. 76
Arkansas appears to follow the logic of the majority of
states in determining whether possession of a controlled
substance occurs when the contents are in the body. In
Embry v. State, the Arkansas Court of Appeals briefly
addressed whether an illegal drug ingested in the body
amounts to possession. 77 In this case, the defendant
swallowed a plastic bag that contained cocaine. 78 Worried
that the drug would cause harm, the defendant went to a
hospital emergency room and told a surgeon that he had
ingested the drug. 79 The surgeon suggested immediate
surgery in order to remove the bag. 80 The surgeon
performed surgery on the minor’s stomach and successfully
removed the bag. 81 The bag was not completely sealed and
contained cocaine. 82 The bag was then given to a detective
and used against the minor in order to charge him with
illegal possession of a controlled substance. 83 Referring to
the previous language of Arkansas’s minor-in-possession
statute, the defendant argued that since the cocaine was in
his body, he could not have been in possession of the
substance. 84 The court disagreed. 85 According to the court,
the defendant did not intend to consume the cocaine
because he ingested the entire bag as opposed to taking the
contents out of the bag and then ingesting the substance. 86
Because the cocaine was still in the bag and not assimilated
in the body, the defendant intended to retain dominion and
control over the bag. 87 Although Embry’s holding dealt
with controlled substances rather than alcohol, it shows that
76. See, e.g., Yanez, 553 P.2d at 252.
77. 50 Ark. App. 245, 905 S.W.2d 73 (1995).
78. Id. at 246, 905 S.W.2d at 73.
79. Id. at 246, 905 S.W.2d at 73-74.
80. Id.
81. Id.
82. Embry, 50 Ark. App. at 246, 905 S.W.2d at 74.
83. Id.
84. Id. at 247, 905 S.W.2d at 74.
85. Id.
86. Id. (“[A]ppellant was not convicted of possession of cocaine for having
consumed it but for having an entire bag of cocaine in his body. There is no evidence
that he had any intention of ‘consuming’ it.”).
87. Embry, 50 Ark. App. at 247, 905 S.W.2d at 74.

990 ARKANSAS LAW REVIEW [Vol. 65:977
Arkansas at one time defined consumption and possession
as two different concepts.
Nonetheless, a different approach appears to be
emerging. State v. Schroeder is a recent case that
demonstrates how the distinction between possession and
consumption may be becoming blurred. In that case, the
South Dakota Supreme Court determined that a person
could be convicted for possession of a controlled substance
if a drug test indicated the controlled substance was in the
body. 88 The court reasoned that the legislature’s
amendment of the statutory definition of controlled
substance to include “an altered state of a drug or
substance listed in Schedules I through IV absorbed into
the human body” was indicative of the legislature’s intent
to expand the overall scope of possession. 89
Although many states adhere to the traditional
approach articulated in Evans and Nethercutt, the Arkansas
General Assembly recently decided to merge the concepts
of possession and consumption when dealing with minors in
possession of alcohol. In taking the Schroeder approach in
regard to the term possession, the Arkansas General
Assembly has blatantly ignored the traditional notions of
dominion and control that are inherent in the term.
IV. STATES THAT HAVE NOT ADOPTED AN INTERNAL
POSSESSION LAW
Currently, there are forty states that have not enacted
internal-possession laws. 90 Caselaw from two of these states
suggests three reasons for rejecting internal-possession
statutes: (1) lack of conformity with the general definition
of possession; (2) evidence of alcohol in the body does not
indicate whether a person had knowledge of possession of
the substance; and (3) uncertainty regarding where the
violation took place.
Courts in Washington that have addressed the issue of
internal possession have determined that the commonsense
use of the term “possession” entails the notion of
88. 674 N.W.2d 827, 831 (S.D. 2004).
89. Id. at 830-31.
90. Underage <strong>Drink</strong>ing, supra note 6.

2012] MINORS, YOU ARE WHAT YOU DRINK! 991
having some type of dominion or control over a thing. In
State v. Hornaday, the Washington Supreme Court held
that “possession of liquor should not be construed to
include liquor which has been assimilated by the body.” 91
Likewise, in State v. Roth, the Washington Court of
Appeals held that the “[m]ere presence of alcohol in one’s
system is not enough on its own to support a conviction.” 92
But the court stated that when such evidence is
corroborated with other proof it may suffice to prove
possession. 93
In addition to the dominion and control aspect of
possession, Washington courts have also recognized that
possession requires some indication that the person had
knowledge of the substance’s presence. 94 While knowledge
of the substance was not dispositive to the court’s analysis
in Hornaday, based on the court’s interpretation of
possession, knowledge remains a strong factor. 95 Ohio
takes an approach similar to Washington in that a violation
of its minor-in-possession law requires some proof that the
minor had knowledge of the consumption. 96 Evidently,
whether a minor has knowledge of the alcohol consumption
cannot be proven by a mere blood or breath test.
Therefore, knowledge is most likely a second ground for
why the presence of alcohol in a minor’s body does not
equate to possession per se in some states.
Another reason why states may choose to refrain from
enacting internal-possession laws is articulated in Logan v.
Cox. 97 In that case, the Ohio Court of Appeals determined
that the presence of alcohol in the body is “not enough,
without additional corroborating evidence, to prove prior
possession beyond a reasonable doubt within the
jurisdiction where the charges were brought.” 98 The court
91. 713 P.2d 71, 76 (Wash. 1986) (en banc) (internal quotation marks omitted).
92. 128 P.3d 114, 117 (Wash. Ct. App. 2006).
93. Id.
94. See Hornaday, 713 P.2d at 74.
95. See id.
96. OHIO REV. CODE ANN. § 4301.631 (West 2012) (“No underage person
shall knowingly possess or consume any low-alcohol beverage in any public or
private place . . . .” (emphasis added)).
97. 624 N.E.2d 751, 755 (Ohio Ct. App. 1993).
98. Id. at 755 (emphasis added).

992 ARKANSAS LAW REVIEW [Vol. 65:977
ultimately concluded that, although the presence of alcohol
in the system is evidence of prior possession or
consumption, it is not enough to show that the person
actually consumed or possessed the alcohol within the
present jurisdiction. 99 Logan presents a third possible
ground for rejecting the internal-possession rule. The court
apparently read Ohio’s minor-in-possession statute only to
prohibit possession or consumption where evidence
indicated such action occurred within the court’s
jurisdiction. 100
The minor-in-possession cases from Ohio and
Washington illustrate why enacting internal-possession laws
can be problematic. Such laws ignore the general definition
of possession and do not accurately reflect whether a minor
had knowledge of ingesting alcohol. Additionally, an
internal-possession law cannot adequately assess when or
where a minor ingested the substance. Neither a police
officer nor a court will be able to tell if a violation occurred
within the jurisdiction by only looking at evidence showing
alcohol in the body. These uncertainties support why
evidence of alcohol in the body alone should not be enough
to prove possession and are likely why many states have
opted to forgo adopting internal-possession statutes.
V. POTENTIAL PROBLEMS WITH ARKANSAS’S
INTERNAL POSSESSION LAW
For several years, Arkansas’s minor-in-possession
statute endured without change, and Arkansas stood alone
as the only state with a statute explicitly rejecting the
notion that alcohol in a minor’s body could constitute
evidence of possession. 101 In 2011, Arkansas made a
complete turn-around, joining nine other states that have
enacted internal-possession statutes in the fight against
99. Id.
100. See id.
101. See Act 1210, 1997 Ark. Acts 6815, 6816 (“For the purposes of this
section, intoxicating liquor, wine, or beer in the body of a minor shall not be deemed
to be in his possession.” (emphasis added)).

2012] MINORS, YOU ARE WHAT YOU DRINK! 993
underage drinking. 102 <strong>What</strong> previously would not have
constituted evidence now constitutes proof.
Though each state varies in terms of whether both
consumption and possession are prohibited, all of these
states explicitly allow evidence of alcohol content in the
body as proof of a violation. 103 Unlike Arkansas’s minor-inpossession
statute, however, the minor-in-possession
statutes in these nine states offer guidance as to how an
officer might gain access to evidence of alcohol content in
the body and provide certain exceptions. 104
A. Lack of Guidance Regarding Enforcement
Because Arkansas’s minor-in-possession statute has
shortcomings, it is instructive to look at similar internalpossession
statutes in order to illustrate improvements that
should be made to Arkansas’s statute. Missouri’s statute is
most similar to Arkansas’s and states:
Any person under the age of twenty-one years, who
purchases or attempts to purchase, or has in his or her
possession, any intoxicating liquor as defined in section
311.020 or who is visibly in an intoxicated condition as
defined in section 577.001, or has a detectable blood
alcohol content of more than two-hundredths of one
percent or more by weight of alcohol in such person’s
blood is guilty of a misdemeanor. 105
The Missouri statute also stipulates that any minor
“who purchases or attempts to purchase, or has in his or her
possession, any intoxicating liquor, or who is visibly in an
intoxicated condition” has inevitably given consent to a test
102. Act 1152, 2011 Ark. Acts 5381, 5382; see also Underage <strong>Drink</strong>ing, supra
note 6 (noting that Colorado, Kansas, Michigan, Missouri, <strong>New</strong> Hampshire, North
Carolina, South Carolina, Utah, and Wyoming prohibit internal possession).
103. See COLO. REV. STAT. ANN. § 18-13-122 (West 2012); KAN. STAT. ANN. §
41-727 (West 2012); MICH. COMP. LAWS ANN. § 436.1703; MO. ANN. STAT. §
311.325 (West 2012); N.H. REV. STAT. ANN. § 179:10 (West 2012); N.C. GEN. STAT.
ANN. § 18B-302 (West 2012); S.C. CODE ANN. § 63-19-2440 (West 2011); UTAH
CODE ANN. § 32B-4-404; WYO. STAT. ANN. § 12-6-101 (West 2012).
104. See COLO. REV. STAT. ANN. § 18-13-122; KAN. STAT. ANN. § 41-727;
MICH. COMP. LAWS ANN. § 436.1703; MO. ANN. STAT. § 311.325; N.H. REV. STAT.
ANN. § 179:10; N.C. GEN. STAT. ANN. § 18B-302; S.C. CODE ANN. § 63-19-2440;
UTAH CODE ANN. § 32B-4-404; WYO. STAT. ANN. § 12-6-101.
105. MO. ANN. STAT. § 311.325.

994 ARKANSAS LAW REVIEW [Vol. 65:977
in order to determine alcohol content in the body. 106 The
statute does, however, provide one exception for students
enrolled in college who must taste wine or beer as a part of
their curriculum. 107
Arkansas’s minor-in-possession statute is most similar
to Missouri’s statute because both explicitly prohibit
possession and do not include a consumption provision. 108
However, unlike Arkansas’s provision, Missouri’s minor-inpossession
law provides guidance as to when an officer may
lawfully test for the presence of alcohol in the minor’s
body. 109 When a minor is visibly intoxicated, consent to
alcohol testing is implied. 110 In determining whether a
minor is visibly intoxicated, the facts and circumstances
observed by the officer must provide the officer with
probable cause. 111
For example, in J.D.L.C., the Missouri Court of
Appeals determined that an officer lacked probable cause
to conclude that a minor was visibly intoxicated when the
minor was not belligerent and did not have blood-shot or
glassy eyes. 112 Therefore, the court concluded that the
officer did not have probable cause to issue a breathalyzer
test to the minor, and the results of that test were
inadmissible. 113 Apparently, Missouri did not intend to give
officers unfettered discretion when testing the alcohol
content in a minor’s body. However, only time will tell as
to how officers in Arkansas will proceed. Act 1152 simply
does not provide any information or guidance as to how an
officer may obtain evidence of alcohol content in the body
of a minor. In fact, there is nothing in the statute that
suggests whether testing is required for proof of alcohol
106. MO. ANN. STAT. § 311.325.
107. MO. ANN. STAT. § 311.325. However, those students are not allowed to
consume the alcohol, and the instructor must maintain possession and control of the
substance at all times. MO. ANN. STAT. § 311.325.
108. Compare ARK. CODE ANN. § 3-3-203(a) (Supp. 2011), with MO. ANN.
STAT. § 311.325.
109. MO. ANN. STAT. § 311.325.
110. MO. ANN. STAT. § 311.325.
111. State v. J.D.L.C., 293 S.W.3d 85, 89 (Mo. Ct. App. 2009).
112. Id.
113. Id.

2012] MINORS, YOU ARE WHAT YOU DRINK! 995
content. If this is the case, it seems that the smell of alcohol
on a person’s breath might suffice as proof.
The issue regarding how and when an officer may
administer a test likely will only arise in the cases of minors
who are not operating a vehicle when approached. Officers
in Arkansas are authorized under the Omnibus Driving
While Intoxicated Act to administer a chemical test if they
have “reasonable cause to believe that the person, while
operating or in actual physical control of a motor vehicle, is
intoxicated or has an alcohol concentration of eight
hundredths (0.08) or more in the person’s breath or
blood.” 114 Under the implied consent rule, any person who
is operating a vehicle automatically consents to chemical
testing if the officer has reasonable cause to believe the
person is intoxicated. 115 Unfortunately, Arkansas does not
have a provision addressing how an officer may require or
request minors on foot to undergo a chemical test. The
lack of guidance from the Arkansas General Assembly may
result in challenges regarding the administration of blood
tests and breathalyzer tests to minors. 116
B. Constitutional Concerns
The statute’s lack of guidance also raises constitutional
concerns. In People v. Chowdhury, a minor, who was
administered a preliminary breathalyzer test, challenged
the admissibility of the results. 117 According to a city
ordinance, officers were authorized to require minors to
undergo a preliminary breath test without a warrant and
without probable cause. 118 The ordinance provided that
“[a] peace officer who has reasonable cause to believe a
person less than 21 years of age has consumed alcoholic
liquor may require the person to submit to a preliminary
chemical breath analysis.” 119 The Michigan court
determined that the ordinance was unconstitutional
because it violated the minor’s Fourth Amendment
114. ARK. CODE ANN. § 5-65-202 (Supp. 2011).
115. ARK. CODE ANN. § 5-65-202.
116. See infra Part V.B.
117. 775 N.W.2d 845, 849 (Mich. Ct. App. 2009).
118. Id. at 848.
119. Id.

996 ARKANSAS LAW REVIEW [Vol. 65:977
protection from unreasonable searches and seizures. 120 The
court reasoned that none of the exceptions to the warrant
requirement applied to the facts of the case, and, thus,
unless consent is voluntarily given, an officer must obtain a
warrant before administering a preliminary breathalyzer
test to a minor. 121 The recent decision in Michigan
implicates an issue that may occur as a result of Arkansas’s
new law. Because Act 1152 provides no guidance on
enforcement, the statute may raise constitutional concerns.
C. Exceptions
Arkansas’s minor-in-possession law is unique in that it
does not provide any statutory exceptions. All of the states
that have enacted internal-possession statutes have given
consideration to the fact that some instances of alcohol
consumption by a minor may not reflect the stigma of a
criminal act. 122 For example, some states provide an
exception to their minor-in-possession laws when a family
member gives consent or is present with the minor. 123
Other exceptions include: (1) minor students who taste
intoxicating liquors as a part of a curriculum; (2) possession
or consumption occurring on private property; and (3)
consumption or possession occurring pursuant to a religious
ceremony. 124 Whether these particular exceptions are
allowed for minors in Arkansas should be articulated in
statute.
Another helpful addition to Arkansas’s minor-inpossession
statute would be to require that the minor had
knowledge of bodily possession. In some states, a minor in
possession of alcohol is a strict liability offense, meaning
there is no required culpable state of mind. 125 Basically,
minors could be charged with being in possession regardless
of whether they actually knew they were in possession.
However, other states, like South Carolina, allow a minor
to raise the defense that the minor had no knowledge of
120. Id. at 857.
121. Id. at 856-57.
122. See Underage <strong>Drink</strong>ing, supra note 6.
123. See, e.g., COLO. REV. STAT. ANN. § 18-13-122 (West 2012).
124. See, e.g., COLO. REV. STAT. ANN. § 18-13-122.
125. See Campbell, supra note 18, at 1060.

2012] MINORS, YOU ARE WHAT YOU DRINK! 997
possession. 126 The statute in South Carolina states that
possession in and of itself provides a prima facie showing of
knowledge, which suggests that minors might be able to
raise a defense that internal possession of the substance was
unknown. 127 Such a provision would be very informative to
Arkansas’s minors and would provide clarity to the
elements of proof required under Arkansas’s minor-inpossession
statute. Arkansas’s minor-in-possession statute
provides no leeway for minors who might be unaware that
they have ingested alcohol because it lacks explicit
exceptions. Without such exceptions, Arkansas courts may
face problems determining whether certain exceptions are
necessary and whether such exceptions should be adopted.
Furthermore, Arkansas’s minor-in-possession law does
not indicate whether the jurisdiction of a minor’s possession
or consumption is material to the prosecution of the case.
Some states require evidence that the criminal act of
possession or consumption actually occurred within the
state’s jurisdiction. 128 Although there is no caselaw on this
jurisdictional matter in states that have adopted internalpossession
statutes, it is worth mentioning because evidence
of alcohol content in the body only proves prior possession.
<strong>What</strong> if a minor consumed the alcohol in a state that allows
for such consumption in the presence of a parent and then
crossed the border into Arkansas and was subsequently
tested for alcohol? Arkansas’s statute is unclear as to
whether the provision would allow for a defense that the
minor legally consumed the substance in another state
because the provision contains no jurisdictional information
or guidance.
D. Applicability of Miranda Warnings to <strong>Minors</strong>
Another issue that the Arkansas General Assembly
should address concerns a recent United States Supreme
Court decision and its effects on an officer’s encounter with
a minor. The Court recently decided a case regarding when
126. S.C. CODE ANN. § 63-19-2440 (West 2011).
127. S.C. CODE ANN. § 63-19-2440.
128. See, e.g., State v. McCoy, 864 P.2d 307, 312 (N.M. Ct. App. 1993)
(considering whether there was proof that the drugs were consumed in the charged
county).

998 ARKANSAS LAW REVIEW [Vol. 65:977
a minor is considered to be in interrogational custody. 129 In
J.D.B. v. North Carolina, a thirteen-year old was removed
from his classroom by a police officer fully dressed in
uniform. 130 The child was escorted to a closed-door
conference room where he was questioned by the officer
for approximately thirty minutes about a recent theft. 131
After finding additional information linking the thirteenyear
old to the crime, two officers questioned the child
again in a closed-door conference room with two other
school administrators. 132 The child eventually confessed to
the crime, and only after his confession, was the child
warned that he had the right not to answer. 133
The question before the Court was whether a child’s
age should be considered in determining if a Miranda
warning is required. 134 The Court concluded that a
suspect’s age does inform the Miranda requirement. 135 The
Court stated the following:
To hold, as the State requests, that a child’s age is
never relevant to whether a suspect has been taken
into custody—and thus to ignore the very real
differences between children and adults—would be to
deny children the full scope of the procedural
safeguards that Miranda guarantees to adults. 136
The Court reasoned that the child’s age informs one’s
conclusions about the expected behavior and perceptions of
that child. 137 The majority reasoned that “[i]t is beyond
dispute that children will often feel bound to submit to
police questioning when an adult in the same circumstances
would feel free to leave.” 138 Ultimately, the Court
concluded that the age of a child has significant weight on
the determination of whether the child is in custody. 139
129. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2408 (2011).
130. Id. at 2399.
131. Id.
132. Id.
133. Id. at 2400.
134. J.D.B., 131 S. Ct. at 2401.
135. Id. at 2408.
136. Id.
137. Id. at 2403.
138. Id. at 2398-99.
139. J.D.B., 131 S. Ct. at 2402-03.

2012] MINORS, YOU ARE WHAT YOU DRINK! 999
The United States Supreme Court’s decision has
several implications for Arkansas’s amended minor-inpossession
law. Because Arkansas’s statute does not
inform minors or police officers as to how evidence of
alcohol content in the body can be accessed, most officers
will have to rely on the consent of a minor in order to
perform a chemical test. However, this reliance presents
further issues as to whether such consent under the
circumstances and in light of the child’s age is voluntary. In
addition, depending on the age of the child, officers will
have to decide whether informing minors of their Miranda
rights is necessary. Essentially, what an officer deems as
consent could possibly be coercion or merely inadmissible
because of the failure to inform minors of their rights. 140
Thus, Arkansas’s attempt to ease the rigors of proving
possession might cause more pain than relief.
VI. CONCLUSION
Although this note does not attempt to offend the
wisdom of Arkansas’s recent legislation, it is apparent that
the amended minor-in-possession statute will inevitably
result in Arkansas’s courts, minors, and attorneys having to
face some, if not all, of the above issues. First, as reflected
by the analyses of an overwhelming number of cases,
possession simply does not equal consumption or use.
Arkansas’s minor-in-possession law disregards the general
use of the term possession. Such discrepancy regarding the
term may result in constitutional challenges to the statute’s
vagueness or ambiguity. Also, Act 1152 does not address
how evidence of internal possession is to be obtained and
does not indicate whether the elements of jurisdiction or
knowledge are required. Action should be taken to resolve
140. The Arkansas General Assembly should also consider whether a minor
should be informed of the right to have a parent present before questioning. See
ARK. CODE ANN. § 9-27-317(i)(2)(C)(ii) (Repl. 2009); see also Miller v. State, 338
Ark. 445, 451, 994 S.W.2d 476, 479 (1999) (“The legislature has not, however,
imposed upon the police the duty to inform the juvenile of [the right to have a
parent present for questioning], and we cannot do so where the statute is silent.”).
Because test results indicating alcohol in the body will amount to a minor being in
possession per se, the legislature should afford minors more protection and require
police officers to inform a minor of the right to have a parent present before
voluntarily consenting to such testing.

1000 ARKANSAS LAW REVIEW [Vol. 65:977
these uncertainties in order to prevent unnecessary
litigation involving these issues. As illustrated above, every
state that has enacted an internal-possession law has
included provisions governing how and when an officer
may obtain evidence from the minor’s body, and Arkansas
should do the same. 141
Furthermore, the Arkansas General Assembly should
include some indication as to whether its minor-inpossession
law is a strict liability offense. Alternatively, the
Arkansas General Assembly should include some provision
that provides an affirmative defense for lack of knowledge.
Such a provision would avoid the wrongful prosecution of
minors who were drugged or simply unaware that they
ingested alcohol.
Lastly, in response to the recent United States
Supreme Court decision regarding when a minor is
considered to be in custody, Arkansas’s law enforcement
should anticipate challenges to the administration of breath
and blood tests due to the lack of a Miranda warning. As
evidenced by the Supreme Court’s decision, depending on a
minor’s age, an officer may be required to issue a Miranda
warning before making any requests or asking any
questions. The decision affects when and how an officer
may request a minor to undergo a blood or breath test, and
Arkansas law enforcement should be informed that such
discretion could result in the inadmissibility of evidence on
constitutional grounds. Therefore, Arkansas’s amended
statute might not make things as easy for law enforcement
as originally intended.
Altogether, the Arkansas General Assembly has taken
a bold stride in its battle against underage drinking, but
several questions are left unanswered. The Arkansas
General Assembly should take a proactive stance and
address the problems raised in this note to avoid confusion
and unnecessary litigation.
141. See supra Part V.A.
JERVONNE D. NEWSOME