Just Say No - Tough Under 21 Administrative Sanction Passes Assembly Senate
February 13, 2008
In Vol. 3 NY DWI Bulletin No. 6, we touched on Federal grant money that becomes available to States passing specified highway traffic safety provisions. Included as part of 23 USC ' 410, in a package of supplemental grants, is a section which provides:
(1) Blood alcohol concentration for persons under age 21. Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and provides that any person under age 21 with a blood alcohol concentration of 0.02 percent or greater when driving a motor vehicle shall be deemed to be driving while intoxicated.
While numerous propositions directed toward under age 21 operation have been launched over the years, it appears that one is about to become law. On June 14, 1996, S. 5960-A was passed by the Senate and was subsequently passed by the Assembly on June 19th. This unique piece of legislation was signed into law on June 25, 1996.
Consisting of an entirely new proviso, Vehicle and Traffic Law ' 1192-a, as well as numerous amendments to existing provisions, make this piece of legislation complicated and singularly different. While we are yet to say this, woe to the non-subscribing practitioner since from both a substantive and procedural standpoint, this series of amendments is like nothing we've ever seen. Accordingly, we'll devote the balance of this issue to discussing S. 5960-A.[i]
Vehicle and Traffic Law ' 1192-a
The heart of this enactment exists in an entirely new subdivision, Vehicle and Traffic Law ' 1192-a. This section provides:
Operating a motor vehicle after having consumed alcohol; under the age of twenty‑one; per se.
No person under the age of twenty‑one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty‑one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety‑four of this article. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety‑two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety‑four‑a of this article. Except as otherwise provided in subdivision five of section eleven hundred ninety‑two of this article, this section shall not apply to a person who operates a commercial motor vehicle. Notwithstanding any provision of law to the contrary, a finding that a person under the age of twenty‑one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense.
Most essential to a proper understanding of the statute is that even though the act speaks in terms of particular blood alcohol levels, it is not dependant upon anything more than a showing that the motorist had more than .02 percent of alcohol in the bloodstream. This will create a presumption that the motorist has consumed alcohol within the meaning of the statute
The basic scheme created by this unique enactment is that underage motorists, underage being defined as under 21, who have consumed alcohol shall be referred to the Department of Motor Vehicles for administrative punishment. Consumed alcohol is defined by the statute as being demonstrated when a chemical test denotes .02 through .07 per centum of alcohol by weight in the bloodstream. The basic intent, therefore, is to create a zero tolerance bridge between non-consumption or endogenous amounts of alcohol and prima facie impairment. In other words, since under former law, BAC's up to and including .07 did not constitute a prima facie case of either impairment or intoxication, punishment, license or otherwise, was a shaky proposition at best. The new provision closes this gap for underage drinkers by creating a per se rule that any motorist under age 21 who is shown to have .02 through .07 per centum of alcohol in his or her blood has consumed alcohol and therefore becomes subject to a newly created administrative penalty.
In the event that the underage motorist has more than .07 per centum by weight in his or her blood, the new provision shall not apply. Likewise, operation of Vehicle and Traffic Law ' 1192-a is specifically confined to those instances in which the underaged motorist is not charged with a violation of any subdivision of section eleven hundred ninety‑two.
Of true significance is that the statutory BAC trigger is a chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety‑four of this article. In reviewing this clause, two things immediately stand out. First, the statute contains the same inexcusable error found in Vehicle and Traffic Law ' 1193(2)(e)(7), although in this particular instance, resolution may not be all that clear. As we noted in reference to that statute, Vehicle and Traffic Law ' 1194 contains two distinctly different provisions for chemical testing. Vehicle and Traffic Law ' 1194(1)(b) creates the field or preliminary breath test. Evidentiary testing is thereafter created by Vehicle and Traffic Law ' 1194(2)(a). While, in Vehicle and Traffic Law ' 1193(2)(e)(7), the argument was always present that the intent of the statute was to impose a sanction upon those who fail evidentiary tests. The intent of Vehicle and Traffic Law ' 1192-a is not as easily discerned. Particularly in view of the fact that the chemical test is simply a means of determining whether the underage motorist has consumed alcohol, one may easily argue that any chemical test will do just fine.
Although, as we will see, discovery provisions make available traditional chemical test documents. We really wish that the Legislature would be more precise in describing the tests.
Whereas the statute imposes an administrative sanction for conduct, which if carried out by an individual under the age of 21, was formerly without liability criminal or otherwise, within a certain range, .06-.07. The statute affords considerable discretion where discretion did not exist before. The new provision undoubtedly overlaps the existing violation of Driving While Ability is Impaired in this range. When coupled with the legislative direction that [a]ny person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety‑two of this article arising out of the same incident shall be liable, the new statute clearly says that a police or peace officer may choose not to arrest the underage motorist for Driving While Ability is Impaired (Vehicle and Traffic Law ' 1192) and instead, issue a citation under Vehicle and Traffic Law ' 1192-1. This, as we will see, can be innumerably beneficial for the underage motorist. Where the vehicle being operated by the underage motorist is a commercial vehicle, however, the Legislature has not been as generous. Recalling that blood alcohol levels of .04 and above are prohibited when operating a commercial motor vehicle, in all but those situations where the underage motorist's blood alcohol content is between .02 and .04, the Legislature has opted to withdraw the option which would otherwise be provided the arresting officer to proceed under Vehicle and Traffic Law ' 1192-a and instead has mandated that the tougher, at times, criminal sanctions for commercial vehicle operation be used.
It should be noted that although not clearly stated within ' 1192-a, this new bill is intended to apply to out of state motorists as well. Section 1192-a speaks in terms of every person, and Vehicle and Traffic Law ' 1194-a provides that the procedures detailed therein apply with equal force to a license or permit to drive or any non‑resident operating privilege.
In our opinion, the strangest provision in the entire under 21 package is contained in the last sentence of the newly created Vehicle and Traffic Law ' 1192-a. This sentence, in no uncertain terms, declares a finding that a person under the age of twenty‑one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense. Thus, with no room being left for debate, the Legislature has in effect chosen to optionally render low range instances of Driving While Ability is Impaired administrative infractions. Therefore, it has permitted a truly administrative sanction to displace what would otherwise be a traffic infraction.
Procedure After Detention
The business end of Vehicle and Traffic Law ' 1192-a is contained in an entirely new section, Vehicle and Traffic Law ' 1194-a. As pointed out above, the Legislature, was exceedingly careful to maintain a strictly administrative approach, even to the point of substituting the term detention for arrest.
When an underaged motorist has been detained for a violation of Vehicle and Traffic Law ' 1192-a there will be no court appearances or arraignment. The motorist, absent an additional Vehicle and Traffic Law charge such as speeding, will not even receive the usual traffic citation. Instead the detaining police officer has the obligation to forward a report of the results of the motorist's test to the Department of Motor Vehicles within twenty‑four hours of the time when the results of the chemical test become available. Presumably, the Commissioner of Motor Vehicles will promulgate the necessary forms for this purpose. The hearing date will be provided by the police officer in much the same fashion as arraigning courts presently do when the motorist has refused to submit to a chemical test. The dates will be assigned upon a schedule promulgated by the Department of Motor Vehicles for this purpose. The hearing will be held before a hearing officer so designated by the Department of Motor Vehicles in the county where the chemical test was administered or in an adjoining county under such circumstances as prescribed by the Commissioner. By statute, the hearing must take place within thirty days of, but not less than forty‑eight hours from the date that the chemical test was administered. In the event, however, that the number of available hearing officers and the anticipated volume of hearings are such that holding the hearing within thirty days of notification would prove detrimental to the holding of other hearings, the hearing shall be held on the next hearing date for the particular location.
In what is truly an enlightened approach, the Legislature has provided the underage motorist with a fairly broad range of discovery. As part of the filing procedure, Vehicle and Traffic Law ' 1194-a(1) provides that the police officer shall provide the operator with the hearing notice and file the same with the Department of Motor Vehicles prior to the commencement of the hearing:
any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity.
Essentially tracking CPL ' 240.20(1)(c), this is a remarkable development, particularly in light of the utter lack of such discovery under Vehicle and Traffic Law ' 1193(2)(e)(7). While it is highly uncertain just how questions concerning discoverability will be handled, one may safely say that at least during the first year of this statute's operation, this will be a leading source of contention. Discovery has traditionally been placed in the hands of the District Attorney. Police officers have received little training concerning the scope of discovery and just what may be discovered. If the statute is to have problems, this is where they will arise.
The hearing that will ultimately be held, like that encountered in the refusal situation, is limited to certain enumerated issues. First and almost without saying, is proof that the underaged motorist operated the motor vehicle. Second, is a showing that there was a valid request made by the police officer to the motorist to submit to a chemical test in accordance with the provisions of Vehicle and Traffic Law ' 1194. Thirdly, there is a need for proof that the motorist was less than twenty‑one years of age at the time that he or she is alleged to have been operating the motor vehicle. Fourthly, there is a need for a showing that the chemical test was properly administered. Concededly, this burden will be slight in view of the fifth or qualitative analysis that is required. Did the test find that such person had driven after having consumed alcohol as defined in Vehicle and Traffic Law ' 1192-a? Sixth, did the police officer make a lawful stop of the motorist? The burden of proof is upon the police officer to prove his or her case by clear and convincing evidence.
Unique in the underage process is that although administrative, it is quasi-criminal, at least insofar as the degree to which it goes in protecting those procedural rights which traditionally accompany the criminal process. By its express terms, the statute provides that:
Every person who is entitled to a hearing pursuant to this subdivision has the right to be present at the hearing; the right to be represented by attorney, or in the hearing officer's discretion, by any other person the operator chooses; the right to receive and review discovery materials as provided in this subdivision; the right not to testify; the right to present evidence and witnesses in his own behalf, the right to cross examine adverse witnesses, and the right to appeal from an adverse determination in accordance with article three‑a of this chapter. Any person representing the operator must conform to the standards of conduct required of attorneys appearing before state courts, and failure to conform to these standards will be grounds for declining to permit his continued appearance in the hearing.
Further, the statute requires that hearings shall be conducted in accordance with this subdivision and with the provisions applicable to the adjudication of traffic infractions pursuant to 15 NYCRR part 124. These are exceedingly particular and warrant in-depth review. In particular, it is helpful to point out that although these particular protections are statutorily required, Vehicle and Traffic Law ' 1194-a reaffirms the importance of the right to representation and the right to remain silent. Although most practitioners are not aware of its existence, 15 NYCRR 124.2(b) provides that [n]o negative inference will be drawn from the exercise of the motorist's right not to testify.
Despite its quasi criminal appearance, however, the underage hearing is not conducted pursuant to the rules of evidence which prevail in the criminal courts. Indeed, the statute commences with a declaration that the rules governing receipt of evidence in a court of law shall not apply in a hearing conducted pursuant to this subdivision. Even so, because of the arguably concurrent jurisdiction which is afforded the Department of Motor Vehicles and the criminal courts (see, 15 NYCRR 124.5(b)(& 1-2), the statute makes noteworthy exceptions. The statue reiterates the right to remain silent, as well as the lack of any adverse inference arising therefrom. It also excludes privileged communications, evidence which, for constitutional reasons, would not be admissible in a court of law, evidence of prior misconduct, incompetency or illness, except where such evidence would be admissible in a court of law, and a broad catchall evidence which is irrelevant or immaterial.
In between the lines is the fact that the arresting or detaining officer, if you will, has the option, in certain situations, to make the call between Driving While Ability is Impaired and an underage proceeding under ' 1192-a. To a certain extent, concerns about potential discretionary concerns have been obviated by an amendment to Vehicle and Traffic Law ' 1192(10) which permits the Court to satisfy a charge of Driving While Ability is Impaired by means of an agreement to be subject to action by the Commissioner as though a finding pursuant to Vehicle and Traffic Law ' 1194-a had been made. When this occurs, the underage motorist must waive his or her right to an administrative hearing and such waiver shall have the same force and effect as a finding by the Commissioner. To effectuate this procedure, the Department of Motor Vehicles will be promulgating forms which clearly and conspicuously advise the motorist of the nature of this adjudication as well as the fact that a later finding under ' 1194-a may bear an increased penalty.
Sentencing: Vehicle and Traffic Law ' 1193
As part of the package, it was necessary for the Legislature to make fairly extensive changes to the sanctions provisions provided by Vehicle and Traffic Law ' 1193. Initially, the entire section has been given a more rational layout with suspensions being afforded their own series of subdivisions. This has resulted in the creation of a new section, Vehicle and Traffic Law ' 1193(2)(a)(1), which will now contain the penalty for Driving While Ability is Impaired which has remained unchanged. The business end of the new enactment is contained in Vehicle and Traffic Law ' 1193(2)(a)(2). This entirely new subdivision declares:
Persons under the age of twenty‑one; driving after having consumed alcohol. [A license shall be suspended and a registration may be suspended] [s]ix months, where the holder has been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety‑two‑a of this article where such person was under the age of twenty‑one at the time of commission of such violation.
This clearly represents some sort of compromise. As noted above, Vehicle and Traffic Law ' 1192-a can optionally displace Driving While Ability is Impaired for the underage motorist who is in the .06-.07 range. This is meaningful when one looks at Vehicle and Traffic Law ' 1193(2)(b)(6):
Persons under the age of twenty‑one. [A license shall be revoked and a registration may be revoked] [o]ne year, where the holder is convicted of or adjudicated a youthful offender for a violation of any subdivision of section eleven hundred ninety‑two of this article where such person was under the age of twenty‑one at the time of commission of such violation.
Given current attitudes, we find this change to be most surprising indeed. It makes a substantial gift of suspension as opposed to revocation and also shortens the period from one-year to six months. This does not mean that if the underaged motorist is charged with Driving While Ability is Impaired that all hope is lost. If the underaged motorist is charged with Driving While Ability is Impaired, as detailed below, the charge may be resolved by means of a consensual finding to a violation of ' 1192-a.
The new legislation has also made changes to the predicate structure for underage motorists. Initially, bear in mind that a Vehicle and Traffic Law ' 1192-a adjudication is known as a finding. When the underage motorist has a prior finding or conviction, Vehicle and Traffic Law ' 1193(2)(b)(7)[ii] provides for a revocation of the license and possibly the registration for:
one year or until the holder reaches the age of twenty‑one, whichever is the greater period of time, where the holder has been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety‑two‑a of this article, or is convicted of, or adjudicated a youthful offender for, a violation of any subdivision of section eleven hundred ninety‑two of this article and has previously been found to have operated a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety‑two‑a of this article, or has previously been convicted of, or adjudicated a youthful offender for, any violation of section eleven hundred ninety‑two of this article not arising out of the same incident.
As with existing provisions, a monetary sanction of One Hundred Twenty-five Dollars ($125.00) is also to be imposed upon a finding that the underaged motorist has consumed alcohol. Additionally, Vehicle and Traffic Law ' 503(2)(j) has also been amended to provide for a One Hundred Dollar ($100.00) reinstatement fee. Of importance to those charged with the purse strings, Vehicle and Traffic Law ' 1197(1), STOP DWI, has been amended to enable those counties with such programs in place to receive the civil penalties notwithstanding that they are collected in an administrative format.
Testing: Vehicle and Traffic Law ' 1194
Without question, this new procedure was well thought out. Recognizing that Vehicle and Traffic Law ' 1194(2) presently provides for chemical testing when, inter alia, the officer has reasonable grounds to believe that the motorist was operating in violation of any subdivision of section eleven hundred ninety‑two, the Legislature added the following language:
or having reasonable grounds to believe such person to have been operating in violation of section eleven hundred ninety‑two‑a of this article and within two hours after the stop of such person for any such violation[.]
Without this amendment, the underage motorist could have contended that in the .02-.05 range the officer was without authority to request him or her to submit to a chemical test. Such an argument would have been particularly telling where a preliminary breath test indicated a BAC within the aforementioned range. By including Vehicle and Traffic Law ' 1192-a within the grasp of ' 1194(2), this contention has been obviated in the entirety.
Without question, discerning whether a person has .02 per centum of alcohol in the bloodstream could prove a difficult feat at the least. Acknowledging this fact, the Legislature has added another entirely new subdivision, Vehicle and Traffic Law ' 1194(2)(a)(3). This section provides:
For the purposes of [subdivision 2(a)], reasonable grounds to believe that a person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety‑two‑a of this article shall be determined by viewing the totality of circumstances surrounding the incident which, when taken together, indicate that the operator was driving in violation of such subdivision. Such circumstances may include any visible or behavioral indication of alcohol consumption by the operator, the existence of an open container containing or having contained an alcoholic beverage in or around the vehicle driven by the operator, or any other evidence surrounding the circumstances of the incident which indicates that the operator has been operating a motor vehicle after having consumed alcohol at the time of the incident[.]
This section bears a strong similarity to Vehicle and Traffic Law ' 1194(3)(c). As such, it seems that reference to the totality of the circumstances suggests that it may have been the Legislature's intent to free this aspect of reasonable cause from the reliability and basis requirements commonly referred to as the Aguilar‑Spinelli test, and substitute instead the more liberal Fourth Amendment interpretation afforded by the 1983 decision of the United States Supreme Court in Illinois v Gates (1983) 462 US 213, 76 L Ed 2d 527, 103 S Ct 2317, reh den 463 US 1237, 77 L Ed 2d 1453, 104 S Ct 33. In any event, rejection of this rule by the New York Court of Appeals, as a matter of State constitutional law in People v Griminger, (1988) 71 NY2d 635, 529 NYS2d 55, 524 NE2d 409, most likely renders this effort of little more than academic interest. As hearsay, if encountered, will have to meet the earlier test.
As we noted earlier, the intent of the Legislature in approving this piece of legislation, has been enacted to establish a procedure which is decidedly administrative in nature. At no point does this come through clearer than in Vehicle and Traffic Law ' 1194(2)(a)(4).
Notwithstanding any other provision of law to the contrary, no person under the age of twenty‑one shall be arrested for an alleged violation of section eleven hundred ninety‑two‑a of this article. However, a person under the age of twenty‑one for whom a chemical test is authorized pursuant to this paragraph may be temporarily detained by the police solely for the purpose of requesting or administering such chemical test whenever arrest without a warrant for a petty offense would be authorized in accordance with the provisions of section 140.10 of the criminal procedure law or paragraph (a) of subdivision one of this section.
By my eye, the most likely purpose for creating this provision is an effort to remove the Vehicle and Traffic Law ' 1192-a detention procedure from the remedy of suppression afforded under the Criminal Procedure Law. Since, as we will see, enforcement of Vehicle and Traffic Law ' 1192-a is carried out by the Department of Motor Vehicles, it would clearly be with in the Legislative desire not to see claims of suppression brought within that venue.
This, of course, could create problems. As a threshold consideration, where is the determination to be made? The point at which the decision to detain or arrest could prove critical. Assume the following set of circumstances. Bobby Youngboy leaves the Lack of Care Lounge immediately after consuming four 12 ounce beers, the last two in rapid order. Bobby began drinking at 10:30 p.m. and is stopped at 11:00 p.m., immediately upon leaving the Lounge. At the time of his stop and Vehicle and Traffic Law ' 1194(2)(a)(4) detention, the officer finds that under the totality of the circumstances he has reason to believe that the underage motorist has consumed alcohol, although he does not believe that the motorist is intoxicated or even impaired. Clearly, the officer has enough to justify a ' 1192-a administrative action and accordingly, Bobby is taken to Central Station where he submits to a Breathalyzer7 test. The results of this test, which is administered fifty minutes after the stop, show a .08 BAC. Bobby is thereafter arrested for Driving While Impaired. Given this fact pattern, one could easily argue that despite the consumption of alcoholic beverages by an underage motorist, the characterization of the arrest depends solely upon the results of the test which was thereafter administered. This could be crucial when there occurs a search incident to an arrest which thereafter discloses contraband. In the absence of an arrest, the search may be found unlawful.
The Commissioner's Warnings
The new legislation has also impacted upon the so-called Commissioner's Warnings. Because of the creation of an entirely new prosecution, as well as different standard, to be employed, Vehicle and Traffic Law ' 1194(2)(b) has been amended. As a threshold requirement, the section now provides that the warnings must be given:
if (A) such person having been placed under arrest; or (B) after a breath test indicates the presence of alcohol in the person's system; or 8 with regard to a person under the age of twenty‑one, there are reasonable grounds to believe that such person has been operating a motor vehicle after having consumed alcohol in violation of section eleven hundred ninety‑two‑a of this article.
The primary purpose for adaptation of the warnings is to facilitate initiation of the ' 1194 refusal procedure in the event that the underage motorist refuses to submit. Even so, there are some differences. When the charge which has been brought is consumption of an alcoholic beverage by an underage motorist, there will, as is explained shortly, be no arraignment. Thus, the license of the motorist will not be suspended and then revoked. With this in mind, the traditional refusal warnings have been altered. They now provide that when the failure to submit follows a charge of Vehicle and Traffic Law ' 1192-a, the underage motorist must be advised simply that the license will be revoked. Likewise, the warning has been modified to set forth that the license will be revoked whether or not the person is found guilty of the charge for which such person is arrested or detained.
Procedure upon Refusal
When an underaged motorist who has been detained pursuant to Vehicle and Traffic Law ' 1192-a has refused, the police officer, as opposed to the Court upon an arrest, shall provide the report of refusal to the Commissioner within forty eight hours of arrest. The detaining officer, like the arraigning Court when the motorist has been arrested for a ' 1192 offense, is also directed to provide such person with a scheduled hearing date, a waiver form, and such other information as may be required by the Commissioner. Unlike the situation where the motorist arraigned upon an instrument charging a violation of Vehicle and Traffic Law ' 1192, there is no temporary suspension. This means that when the underage motorist who has been detained under Vehicle and Traffic Law ' 1192-a, subsequently refuses, the arresting officer should not take the operator's license. With this one distinction, upon receipt of the report of refusal by the Department of Motor Vehicles, the procedure upon the refusal will remain the same as that which is currently followed, as will the revocation period which is imposed upon the finding that a refusal has occurred.
One complaint that could be raised concerning 5960-a is that it is somewhat difficult to sort out all of the licensing provisions as they are scattered across at least three different provisions. Initially, the act amends Vehicle and Traffic Law ' 1192 by adding a new subdivision, 8-a, which declares that a prior finding under ' 1194-a have the same effect as a conviction for Driving While Ability is Impaired for the purpose of determining the length of any license suspension or revocation required to be imposed, provided that the subsequent offense is committed prior to the expiration of the retention period for such prior offense. Essentially, and perhaps in recognition, if committed after age 21 such operation would be of no import, Vehicle and Traffic Law ' 1192 will ignore the prior underage finding if the later offense occurs after age 21.
As may be expected, a motorist who has been suspended pursuant to the provisions of
the new section is eligible to receive a conditional license under Vehicle and Traffic Law ' 1196. Substantially tracking current provisions, admission will be denied when the motorist has been the recipient of a Vehicle and Traffic Law ' 1194-a finding within the preceding five years. Provisions for denial upon a prior conviction or youthful offender adjudication have similarly been continued.
Aggravated Unlicensed Operation
Requiring only brief comment, Vehicle and Traffic Law ' 511(2)(a)(ii) has been amended to include a licensing sanction which occurs as a result of an underage finding.
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