ID scanners and affirmative defense

dark wooden gavel for affirmative defense

Last updated on March 19th, 2024 at 02:45 pm

Today, about 12.5% of high school students and 32.2% college students admit to possessing a fake ID. With those numbers, bartenders and budtenders are at a high risk for selling to underage individuals. But what happens if a retailer–or ID scanner– is fooled by a fake ID? 

Many jurisdictions allow affirmative defense, which exonerates those retailers deemed to have taken all reasonable precautions to ensure that an ID is legitimate and as a result served an underaged patron. Additionally, some states specify that using an ID scanner further strengthens an establishments ability to use the affirmative defense.

What is reasonable?

It is expected that retailers take the following steps when checking IDs. First, they must ask for the ID. Second, the IDs need to be inspected for both the date of birth and the expiration date. Third, the merchant is required to ensure that the photo ID matches the person presenting it. 

ID scanning and affirmative defense 

The best way to ensure an affirmative defense is to use an ID scanner. Though not all ID scanners are created equal–some use more rigorous checks than others to verify the legitimacy of an ID–they all record the data from a scan, allowing the merchant to prove that they did in fact take reasonable precautions. 

Keep in mind, some states prohibit the storage of ID data as well as the data storage duration, so be sure to check your state guidelines before storing any personal information.    

States with ID scanner affirmative defense 

In the following states, merchants can avoid fines for serving a minor who uses a high quality fake ID if they use an ID scanner: Connecticut, Texas, New York, Ohio, Pennsylvania, and West Virginia

Does Connecticut have affirmative defense for ID scanning?

The act allows alcoholic liquor permittees, tobacco sellers, and their agents or employees to use a scan device to read the magnetic strip or bar code on a driver’s license or Department of Motor Vehicle (DMV)-issued identity card. They may not be found guilty of selling to a minor if they prove that (1) the cardholder presented a driver’s license or DMV identity card in attempting to buy the liquor or tobacco, (2) their scan of the card indicated it was valid, and (3) the liquor or tobacco was sold in reasonable reliance on the identification and validity of the scan. In determining whether a permittee, tobacco seller, or agent or employee has proven an affirmative defense, the court must consider that the use of a scan does not excuse a permittee or seller from exercising reasonable diligence to determine (1) if the customer is age 21 or older in the case of alcohol or age 18 or older in the case of tobacco and (2) whether the description and picture on the license or card are those of the cardholder.

Does Texas have affirmative defense for ID scanning?

It is an affirmative defense to prosecution under this code, for an offense having as an element the age of a person, that:

(1)  a transaction scan device identified the license or certificate of the purchaser as valid and that the person is over 21, and the defendant accessed the information and relied on the results in good faith; or

(2)  if the defendant is the owner of a store in which alcoholic beverages are sold at retail, the offense occurs in connection with a sale by an employee of the owner, and the owner had provided the employee with:

(A)  a transaction scan device in working condition;

(B)  adequate training in the use of the transaction scan device; and

(C)  the defendant did not directly or indirectly encourage the employee to violate the law.

Does New York have affirmative defense for ID scanning?

It shall be an affirmative defense that such person had produced a driver’s license or non-driver identification card apparently  issued by a governmental entity, successfully completed the transaction scan,  and  that  the  alcoholic  beverage  had been  sold, delivered  or  given  to  such  person  in reasonable reliance upon such identification and transaction scan. In evaluating the applicability  of such   affirmative   defense,  the  liquor  authority  shall  take  into consideration any written policy adopted and implemented by  the  seller to  carry  out the provisions of this chapter. Use of a transaction scan shall not excuse any licensee under this chapter, or agent  or  employee of  such  licensee,  from the exercise of reasonable diligence otherwise required by this section.

Does Ohio have affirmative defense for ID scanning?

To amend sections 4301.639, 5733.98, and 5747.98 and to enact sections 2927.021, 2927.022, 4301.61, 4301.611, 5733.50, and 5747.38 of the Revised Code to grant liquor permit holders and sellers of tobacco products, and their agents and employees, an affirmative defense against a charge of selling cigarettes, other tobacco products, beer, intoxicating liquor, or low-alcohol beverages to an underage person if a transaction scan of the purchaser’s driver’s or commercial driver’s license or Ohio identification card indicates it is valid; to restrict the use of the information obtained through a transaction scan; to require the Registrar of Motor Vehicles to adopt rules relating to the use of transaction scan devices; and to grant a credit against the corporate franchise or personal income tax for the purchase or lease of a transaction scan device.

Does Pennsylvania have affirmative defense for ID scanning?

(g) In addition to the defenses set forth in subsections (e) and (f), no penalty shall be imposed on a licensee, licensee’s employee or Pennsylvania Liquor Store employee for serving alcohol to a minor if the licensee or employee can establish that the minor was required to produce an identification card as set forth in subsection (a), the identification card is identified as a valid card by a transaction scan device and the identification card and transaction scan results were relied upon in good faith.  This defense shall apply to all civil and criminal prosecutions.  For purposes of this section, a “transaction scan device” is a device capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of an identification card set forth in subsection (a)

Does West Virginia have affirmative defense for ID scanning?

A licensee, who: (i) Has installed a transaction scan device in its licensed premises; and (ii) can demonstrate that it requires each employee, servant, or agent to verify the age of any individual to whom liquor is sold, furnished, or given away by the use of the transaction device may not be subject to: (A) Any criminal penalties whatsoever; (B) any administrative penalties from the commissioner; or (C) any civil liability whatsoever for the improper sale, furnishing, or giving away of liquor to an individual who is less than twenty-one years of age by one of his or her employees, servants or agents. Any agent, servant, or employee, who has improperly sold, furnished or given away liquor to an individual who is less than twenty-one years of age, is subject to the criminal penalties of subsection (b) of this section. Any agent, servant, or employee, who has improperly sold, furnished or given away liquor to an individual less than twenty-one years of age, is subject to termination from employment, and the employer shall have no civil liability for the termination….

…Information from a transaction scan may not be used or released for any purpose other than to verify compliance or noncompliance of the licensee with the provisions of this article…

To claim the ID scanner affirmative defense, retailers still must exercise common sense procedures, such as checking the ID photo and ensuring that the ID doesn’t look or feel altered. 

For more information about ID scanning and identity verification solutions, contact IDScan.net.