It was supposed to be a special event. A group of 20 friends, soon to be University of San Diego graduates, gathered for a dinner party at Derek Blithe's South Mission Beach apartment. The oceanfront patio was cleaned and cleared. Tables were set up and candles were lit. The girls delivered roasted chickens and grilled steaks. The guys brought wine. Everyone dressed up. It would be a night of fine dining, at least by undergrad standards, to be followed by drinking and dancing at the bars downtown. With everything in place, Nov. 21 had all of the markings of an evening to remember.
That was until eight San Diego Police officers arrived and broke up the party. Blithe said they chased away his guests (the police report puts the number closer to 40 people), poured out the wine and any other alcohol they could find and wrote tickets to his younger fraternity brothers who were waiting in a nearby alley to provide sober rides downtown.
Nearly a year later, it's a night Blithe said he wishes he could simply forget. For the 22-year-old, arrested after police claim they found six minors, two of whom-a 17-year-old and an 18 year-old, both girls-were sipping Coronas in his apartment, the evening turned into a nightmare. Blithe's highlights include being handcuffed, taunted by law enforcement officers because he stutters, strip-searched in a room full of other inmates and a 13-hour stay in county jail.
The police accused Blithe of violating the city's "social host" ordinance, a new law that holds hosts criminally liable if underage revelers are caught drinking alcohol at their party.
The city attorney's office reported that 50 people have been charged with violating the ordinance since the City Council passed it last year, but the campaign against those who party with the yet-to-be-legal could soon come to an abrupt end. Blithe, with the help of his attorney, Patrick Dudley, is challenging the constitutionality of the ordinance, and their argument has gained the attention of an appellate court.
Although a Superior Court Judge initially rejected Dudley's argument, on July 13 the San Diego County Superior Court's Appellate Division agreed to hear Blithe's case.
The majority of appeals filed with the Appellate Division are dismissed without a hearing, and a member of the court's staff told CityBeat that the decision by the panel of three judges to hear the case is an acknowledgement of the argument's merit.
By reviewing the case, the court has put the burden of proving the ordinance's constitutionality on the city attorney and the law's fate in limbo. Along with a decision in Blithe's favor, the court could serve up a large portion of crow, which City Attorney Casey Gwinn, City Councilmember Brian Maienschein-who championed the ordinance-and several public-health groups, which recently touted the ordinance as a success story, may all have to swallow.
Adopted unanimously by the City Council on May 6, 2003, the ordinance makes it "unlawful for any person to allow or host a party, gathering or event at his or her residence or other private property, place or premises under his or her control where three or more minors are present and alcoholic beverages are being consumed by any minor."
The ordinance does not apply to the use of alcoholic beverages exclusively between a minor and his or her parent or legal guardian or to any location, such as a bar or restaurant, already regulated by the state Department of Alcoholic Beverage Control. Those convicted of violating the ordinance, a misdemeanor offense, can face a combination of up to six months in jail, a fine of up to $1,000, community service and be billed by the city for the costs associated with their violation. The city attorney's office typically offers first-time offenders who plead guilty to a violation a reduced sentence of community service, probation and educational programming, leaving a misdemeanor conviction on their criminal record.
San Diego was the first large city in California to pass a social-host law, and San Diego County and many surrounding cities, such as Encinitas, El Cajon and National City, have passed similar legislation.
Dudley's argument focuses on the actual wording of the ordinance, which he says is vague and violates his client's constitutional right to due process of law.
"Vagueness comes out of due process... which is basically a way of saying that you can't really be held criminally liable without fundamental fairness," Dudley said. "It's kind of a catch-all for things like this that really don't fall into a certain constitutional-amendment argument.
Dudley said the "strangest thing" about the ordinance is that it doesn't require a host to have criminal intent nor take criminal action. "It just implies you have to fail to stop underage drinking from occurring on your property. That, to me, is sort of the gamy part of the law."
Dudley contends the ordinance doesn't require a host to take reasonable steps to prevent underage consumption, like checking IDs to be in violation-or have knowledge of a minor's presence or underage drinking or provide the alcohol. He said Blithe was unaware that the two girls who were cited for underage drinking, whom he didn't invite to the party or provide with alcohol, were minors.
"It says that social hosts are held criminally liable but it doesn't say that they are required to know of any criminal wrongdoing," Dudley said. "It basically does not expressly define... who has a duty to prevent underage drinking, and there is no other duty anywhere in the law that says adults have to prevent underage drinking."
Dudley said Blithe is charged with an odd sort of crime, one that requires "commission by omission."
"It's sort of the whole good Samaritan issue," he said. "We don't have any duties to help people who are in trouble. That is sort of American law in a nutshell. It is unfortunate, I think, from a moral standpoint but that is just the way it is unless we have a preexisting condition like a parent-child relationship...which is interesting because the ordinance provides an exception to parents providing alcohol to their children."
The city attorney's office declined to comment on Blithe's case and the merits of Dudley's argument, but spokesperson Maria Velasquez said the city attorney is taking the challenge seriously. "We are hopeful that the court will uphold the ordinance that was enacted to combat the dangers of underage drinking," she said, adding that 15 related cases have resulted in misdemeanor convictions. But, she said, a social-host case has yet to go to trial. One case has been dismissed.
With the court expected to make its decision by Aug. 20, Dudley's success is far from assured. "I'm curious as to what the appellate division is going to do," he said. "I'm confident that they are going to rule in my favor, but it's possible that they are just trying to set a precedent so that... basically, they will establish that it is constitutional so no one else can challenge it."Blithe, who moved to Irvine after graduation but visits friends in his old neighborhood regularly, said he is trying not to let his legal troubles worry him. Instead, he's relishing the opportunity to stand up for college students whose rights he says are regularly trampled by police. He plans to party on, keeping a lookout for minors along the way.