When Missouri toughened the penalties for underage drinking in 2005, lawmakers made it easier for prosecutors to gain a conviction against both the young people and adults who know about the drinking but do nothing to stop it.

The 2005 law takes away the driver's license of anyone under 21 who is caught in possession of alcohol. The law included, for the first time, the ability for prosecutors to win convictions based on the alcohol in a minor's bloodstream, Cape Girardeau County Prosecuting Attorney Morley Swingle said.

"The old tried-and-true method of catching them was catching them with the alcohol in their hands," Swingle said. "The legislature added some ways to get around the loopholes that had cropped up over the years."

But one step lawmakers did not take is to make it illegal for minors to be near alcohol, said Swingle and Rick Weiser, St. Louis District supervisor for the state Division of Alcohol and Tobacco Control.

"If they are just standing there and are not observed drinking, we would not arrest them," Weiser said.

The legal standards for convicting a minor became an issue when some parents, responding to news reports from a Notre Dame Regional High School graduation party hosted at the Sikeston home of Mark Cheatham and Terry Brewer-Cheatham, called the Southeast Missourian Speak Out line and left comments on the Internet versions of Southeast Missourian stories. They claimed that Sikeston Department of Public Safety officers issued citations to youngsters who had not been drinking and who offered to take breathalyzer tests to prove their innocence.

Capt. John Martin of the Sikeston Department of Public Safety declined to comment on the actions of officers at the party.

Missouri law does not make an observer liable for the criminal activity of others in most circumstances, Swingle said. "It is not a crime to be physically present when a crime is being committed," he said. "People at the party who were drinking 7-Up or Coke, and had not brought or supplied anything to anybody, can't be convicted."

To convict a minor, the underage person must be caught with alcohol in their possession, to be seen drinking by a reliable witness -- preferably a police officer or a liquor control agent, Weiser said -- or fail a field sobriety test.

The field sobriety test is used when a driver is caught on suspicion of driving while intoxicated. It can, if the officer wishes, include a breathalyzer or blood test to detect alcohol.

The limit for a driver is a blood-alcohol content of 0.08 percent. For a minor to be convicted based on a breathalyzer or blood test, they must have a blood-alcohol content of 0.02 percent.

Liquor agents are advised to be careful about the citations they issue, Weiser said. "I want a tight case," he said. "I don't want a weak case."

Refusing to take a breathalyzer test can cost a driver his license. But a minor, seeking to keep their license, can refuse to take a test without consequence, Swingle said. "One little area that the underage legal scholar who is out at his beer party should keep in mind is that at a party, you can refuse a breath test and not lose your driver's license," he said.

In that case, he said, a conviction would depend on the testimony of the officer issuing the citation.

But one area where the law does impose liability on someone present when a criminal act occurs is on adults who know a minor is drinking on their property. Before 2005, an adult had to supply the alcohol to be liable for a criminal act. The law now makes a conviction possible for someone in control of a property to be convicted if they know a minor is consuming alcohol and they do nothing to stop it. The only exception is for parents providing alcohol to their own children.

"I know of at least one graduation party that was canceled by parents in our community once this law was passed," Swingle said. "I think that is what the legislature had in mind, to make the parents think twice."

Cheatham and Brewer-Cheatham each face 30 counts of allowing minors to drink at their home. Each count carries a maximum penalty of six months in jail or a fine of $500. They are scheduled to be arraigned July 3 in Benton, Mo.

rkeller@semissourian.com

335-6611, extension 126