Casper City Council on Tuesday passed on the third and final reading an ordinance giving judges the ability to jail someone under 21 caught with an alcoholic beverage, although the intent is to get counseling and maybe treatment for them.

"This is a proactive measure; I absolutely think it will do some good," Councilmember Chris Walsh said before the 7-2 vote in favor. "This isn't just an incarceration issue, this is an option where they can receive counseling when they need it."

Some background is necessary to understand the new ordinance.

Last year, the Wyoming Supreme Court declared municipal courts cannot impose probation when the only penalty for an offense is a fine. The case -- City of Casper v. Shaina Simonson -- was brought by the city after the state district court ruled the city's municipal court illegally imposed a probationary sentence. The high court affirmed the district court's ruling. Dallas Laird represented Simonson before his appointment to City Council.

The Supreme Court said a municipal court cannot place a defendant only on probation for an offense that has not been made punishable by a jail or prison sentence.

So without the possibility of probation, the municipal court can only impose a fine. But to have probation, a potential jail sentence needed to be added to the ordinance.

So the proposed change includes this language: "... adding incarceration as a potential penalty will allow the Casper Municipal Court to impose probation and the conditions thereof to address potential drinking problems of youthful offenders."

But Laird, who's representation of Simonson led to the Wyoming Supreme Court decision, said he didn't like the ordinance because it will give a minor a criminal record. For example, a person under 21 found near an alcoholic beverage, even without drinking, could be ordered to counseling, pay for that, and charged with a crime, he said.

"It's a status offense, it doesn't require any level to be proven," Laird said. "So then they're ordered to an ASI (Addiction Severity Index test), and then they're taken up there and asked if they're doing drugs and everything else; and I think their rights are being overhauled. So they're getting more information out of them without them having a lawyer and I think there's problems with that."

Laird later said the council has not addressed who will pay for court-appointed attorneys if a person requests one.

But Chris Walsh, former police chief, said the minor would have received a record under the old standard.

The new ordinance would enable a young person to receive treatment for alcohol addiction, Walsh said. Without the provisions in the ordinance, a repeat offender could just pay fines without getting help, he said.

The ordinance would help reverse the attitude that underage drinking is a "rite of passage" in the community and not a health and crime issue, he said.

Shawn Johnson repeated his previous objection to the ordinance, saying people over 18 can buy cigarettes, enter binding contracts and do lots of other things, but not possess alcohol. Most people between 18 and 21 who consume alcohol don't become stumbling drunks as adults, he added.

"I'm not in favor of punishing adults for doing adult things," Johnson said.

He acknowledged that his is a protest vote, but he said it's his way of voicing his concerns about pushing back on the federal encroachment on state's rights in violation of the 10th Amendment.

Charlie Powell said the issue isn't about putting people in jail for minor alcohol offenses as some kind of "wake up" punishment, but rather an opportunity for counseling

The ordinance gives judges the authority to direct a young person who may be an alcoholic and get them treatment and achieve sobriety, Powell said. "What we're interested in is giving them the help that they need at a critical juncture of their life."

Mike Huber said he agreed with Johnson about the drinking age, but such a protest can't do much about what happens in Casper or Wyoming.

"Congress crammed that down our throats," Huber said. "That is something we don't have a choice in dealing with. What we do have a choice in dealing with is trying to have an ordinance that will enable our municipal court to try to handle these cases in a manner so they will be in the best interest of the young people that come into court."