MASCOT Members Urge Teen Tobacco Possession Law

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John Gibeaut
ABA Journal
Vol. 85, p38

Life's a drag in states where youths caught puffing lose driver's licenses

As anyone who has ever had a suspended driver's license knows, it's no fun taking the bus to work, being chauffeured by your spouse or mooching rides from friends.

It is even worse for teenagers. Losing that precious piece of plastic can be the social equivalent of the death penalty. A kid without a license becomes an untouchable in the teenage caste system. No dates. No parties. No fun. No life. Bummer, dude.

driver's license

So it probably took no great vision a few years back when legislators and judges began punishing all kinds of youthful wrongdoing by pulling teens' driver's licenses--even when the offenses are not committed while driving. Skip school, lose your license. Get caught at a party with booze, lose your license. Smoke pot, forget it.

Tobacco's Turn
Thus it was inevitable that teens' driver's licenses would become the latest legal weapons in the tobacco wars.

About a half-dozen states recently have enacted laws that can yank licenses from youths caught smoking or possessing tobacco products. Judges in Florida and Utah have gone one step further and set up special courts that attempt to blend the threat of the ultimate punishment with education on the dangers of tobacco use.

"It hits them where it hurts," says Broward County, Fla., Judge Steven G. Shutter, who has presided over the nation's first teen tobacco court for just over a year. "When I was a teenager I wanted two things more than anything: a car and girls. I didn't get the girls until much later, but at 17 I did get to drive a car."

Not all states are hopping on the tobacco bandwagon, however. Legislators in Illinois and Georgia this year shelved legislation that would have suspended teens' licenses for using tobacco. Opponents claimed the proposals made criminals out of kids when the real targets should be retailers who sell tobacco products.

In Florida and Utah, however, tobacco offenses are civil infractions, like traffic tickets. Shutter's Broward County court operates under a 1997 state law that, for a first offense, fines youths $25 or imposes 16 hours of community service, and mandates attendance at an anti-tobacco class. The statute suspends teens' licenses for 30 to 45 days when they commit a third offense within 12 weeks, fail to appear in court or ignore the penalties.

Of the approximately 1,200 teens cited since March 1998, Shutter says he sent license suspension warnings to about 100, nearly all for failure to appear. After that, most youths showed up in court, avoiding a license suspension.

In Salt Lake City, state District Judge Joseph Anderson relies on the court's inherent powers to take licenses and to order a combination of fines, attendance at anti-tobacco classes and community service. Anderson has suspended less than 10 licenses since the pilot tobacco court convened in August last year, driving home the point to the few who don't take it seriously.

The first offense in Utah costs the defendant $50, while multiple offenses can incur a hefty fine of $250. "Most of the kids so far are paying the tickets," Anderson says. "That will probably change as they increase."

Gateway Decisions
Both judges say no teen has showed up in court with a lawyer and challenged their authority, although one Florida girl was acquitted after she came in with a lawyer and witnesses and demanded a trial. But if alcohol and drug possession cases are any indication, most challenges to tobacco-related license suspensions would go up in smoke.

Courts overwhelmingly have affirmed suspensions in alcohol and drug cases, usually holding that driving is a privilege and not a right and that suspensions are rationally related to the state's goal of highway safety.

Moreover, there is nothing stopping a state from refusing to issue a license to someone under 18 in the first place. And more and more states are increasing restrictions on teen drivers, enacting laws that may keep them off the roads after curfew or make it more difficult to obtain a license.

Going even further than courts have in drug and alcohol cases, the West Virginia Supreme Court upheld a law that made it possible to take licenses from high school dropouts. Reaching for a link to the punishment, the court asserted that a dropout is more likely than other kids to be "out and about making mischief with his or her car." Means v. Sidiropolis, 401 S.E.2d 447 (1990).

The Wyoming Supreme Court is the notable stray from the pack. The court in 1992 used equal protection and cruel and unusual punishment provisions in the state constitution to strike down a statute that took licenses from drivers under 19 who were cited for alcohol offenses, but not from drivers between 19 and 21, the state's legal drinking age. Johnson v. State, 838 P.2d 158.

Likely Losers
But most smoking teenagers don't live in Wyoming. So the bottom line probably will be simple if teenagers challenge license suspensions for tobacco offenses. They will lose. End of story.

Whether tobacco courts reduce teen smoking, however, will be another story. Already, Shutter says, he is beginning to recognize repeat offenders. He should get a better idea of the court's effectiveness after the clerk's office installs a computer case-tracking system. Also, a follow-up survey of teens who have gone through the court was expected in July.

For now, Shutter can only read the kids' faces when they come to tobacco court on the last Friday of each month. When he starts his standard spiel on the law, the teens look bored. Then he gets to the part about license suspensions. "That perks them up a bit," Shutter says.

But more impressive is Earl C. Mogk of nearby Dania, a cancer survivor who had his larynx and vocal cords removed. Mogk speaks to the kids about his experience with an artificial voice box. "He's a punch in the stomach," Shutter says.