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
| State | Affirmative Defense Type | Scanner Explicit in Law? | ID Scanner Role |
| Arizona | Statutory | No | Optional support; strengthens reasonable reliance |
| Connecticut | Statutory | No | Optional support; strengthens reasonable reliance |
| Nevada | Regulatory/Statutory Hybrid | Implied | Expected in regulated industries (gaming, cannabis, alcohol) |
| New York | Statutory (Alcohol) | Yes | Required for strongest defense; transaction scan referenced directly |
| North Carolina | Statutory (Alcohol) | Partial | Optional but recognized (biometric/electronic verification referenced) |
| Ohio | Statutory | No | Optional support; strengthens reasonable reliance |
| Oregon | Statutory | No | Optional support; strengthens reasonable reliance |
| Pennsylvania | Statutory | No | Optional support; strengthens reasonable reliance |
| Rhode Island | Statutory (Tobacco/Vape) | Yes | Required for defense in specific use cases (fraud detection scanner + age verification) |
| Texas | Statutory + Employer Compliance | Yes | Strongly encouraged; tied to training and compliance infrastructure |
| Utah | Regulatory/Statutory Hybrid | Implied | Strongly expected; part of strict verification environments |
| West Virginia | Statutory | No | Optional support; strengthens reasonable reliance |
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: Arizona, Connecticut, Nevada, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Utah, and West Virginia.
Does Arizona have affirmative defense for ID scanning?
A business selling liquor is expressly authorized to use a “device” to read IDs, but the law does not elaborate on it otherwise.
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 Nevada have affirmative defense for ID scanning?
While not typically phrased as affirmative defense, Nevada has strict requirements for when an ID must be scanned to verify age. This often acts as a regulatory defense.
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 North Carolina have affirmative defense for ID scanning?
It shall be a defense… if the seller…shows that the purchaser produced a driver’s license… or passport… showing his age to be at least the required age… and bearing a physical description… reasonably describing the purchaser
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 Oregon have affirmative defense for ID scanning?
It is an affirmative defense… that the defendant relied on a driver’s license… that appeared valid and indicated the person was of legal age.
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 Rhode Island have affirmative defense for ID scanning?
The purchaser produced a government-issued photographic identification… and the third-party identification fraud detection scanner technology… confirmed the authenticity…
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 Utah have affirmative defense for ID scanning?
While not typically phrased as affirmative defense, Utah has strict requirements for when an ID must be scanned to verify age. This often acts as a regulatory defense.
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…
Key Takeaways
- Affirmative defense allows businesses to avoid liability for selling to a minor if they can demonstrate they took reasonable steps to verify a customer’s ID.
- ID scanning strengthens affirmative defense by providing automated age verification and a verifiable record of the transaction.
- In some states, successful use of an ID scanner can serve as a qualifying condition for affirmative defense, though requirements vary by jurisdiction.
- ID scanning does not replace human judgment; businesses must still visually verify IDs and comply with applicable data privacy laws.
For more information about ID scanning and identity verification solutions, contact IDScan.net.
