In California, it is illegal for anyone under the age of 21 to operate a motor vehicle with a blood alcohol concentration (BAC) of 0.01% or higher. This is a zero-tolerance policy, meaning that any detectable alcohol in a driver's system can result in a DUI charge for an underage individual. Penalties can vary depending on the specific circumstances of the case and any prior convictions. Repeat offenses or aggravating factors could result in more severe consequences.
Bakersfield attorneys at California Criminal Lawyer Group understand the complexities of defending underage DUI offenses. We rely on our experience and comprehension of California laws to develop ideal defense strategies to challenge the charges. Let us begin by breaking down the crime to better understand what to expect in the underage DUI case.
a) California’s Zero-Tolerance on Underage Drinking and Driving
Vehicle Code 23136, often called California's "zero tolerance" law, pertains to underage drinking and driving. Under this law, it is illegal for individuals under 21 to operate a motor vehicle with a blood alcohol concentration (BAC) of 0.01% or higher.
If a driver under the age of 21 is found to have a BAC of 0.01% or more but less than 0.05%, they could face penalties under VC 23136. These penalties can include the following:
- Driver's license suspension — The driver's license could be suspended by the Department of Motor Vehicles (DMV) for one year for a first offense.
- Completion of an alcohol education or treatment program — The driver could be required to complete an alcohol education or treatment program as a condition for license reinstatement.
Note: VC 23136 is a civil offense, not a criminal offense. This means it does not result in a criminal record but can still have significant consequences for an underage driver.
California's under-21 zero-tolerance law applies to all beverages containing alcohol, not just alcoholic drinks. This means that even medicines containing alcohol can subject an underage driver to charges under VC 23136.3.
Additionally, VC 23136 applies regardless of whether the driver's driving was actually impaired by alcohol. An underage driver can violate this law simply by having any measurable alcohol in their system, even if they are not showing signs of impairment. It is a zero-tolerance policy, meaning that any detectable alcohol can lead to penalties under VC 23136 for individuals under 21.
Methods Police Officers Use to Test for BAC
Blood alcohol concentration (BAC) is typically measured using various methods, including:
Preliminary Alcohol Screening (PAS) Test
A PAS test is a breathalyzer test law enforcement officers use to estimate a person's blood alcohol concentration (BAC) at the scene of a suspected DUI (driving under the influence) incident. The PAS test is typically conducted using handheld breathalyzer devices.
During a PAS test, the individual blows into the device, and the breathalyzer measures the alcohol content in their breath. The device then provides an estimated BAC reading. This test is usually performed before an arrest to help officers assess whether the person's BAC is above the legal limit.
Blood Test
A blood test directly measures the alcohol concentration in a person's blood. Drug enforcement officers (DREs) draw the blood and send the sample to a laboratory for analysis. This method is considered more accurate than breath testing.
Urine Test
While less common than breath or blood testing, a urine test can also estimate BAC. However, it is less precise than blood testing and could not be as reliable in determining the actual level of impairment.
b) An Underage Driver With a Blood Alcohol Content Exceeding . 05%
Vehicle Code 23140 pertains to underage drivers who operate a motor vehicle with a blood alcohol concentration (BAC) of 0.05% or higher. This offense is commonly referred to as an "underage DUI with a BAC of 0.05% or higher."
Under VC 23140, if an underage driver is found to have a BAC of 0.05% or higher but less than the legal limit for adult drivers (0.08%), they may face specific penalties.
After an arrest for underage DUI (driving under the influence), the blood alcohol concentration (BAC) is typically confirmed through a post-arrest DUI chemical test. This confirmation can be done using a DUI breath or blood test.
- DUI breath test — A breath test, often conducted using a desktop breathalyzer machine at the police station, estimates the BAC by analyzing the alcohol content in the individual's breath. The breathalyzer provides a BAC reading based on the breath sample provided.
- DUI blood test — A blood test directly measures the alcohol concentration in a person's blood. It involves drawing a blood sample, typically performed by a healthcare professional, which is then sent to a laboratory for analysis. This method is considered more accurate than breath testing.
The choice between a DUI breath test and a DUI blood test depends on various factors, including local law enforcement procedures, equipment availability, and the specific circumstances of the arrest. These tests aim to accurately measure the driver's BAC as evidence in DUI cases.
Here are some key points regarding this offense:
- Administrative license suspension — The Department of Motor Vehicles (DMV) could suspend the underage driver's license for one year. This suspension is administrative and separate from any criminal penalties imposed by the court.
- Juvenile court proceedings — In addition to the administrative license suspension, the underage driver could be subject to proceedings in juvenile court. The court will determine the appropriate penalties based on the circumstances of the case.
- Additional consequences — While the specific penalties vary depending on the case and the court's discretion, possible consequences could include:
- A maximum fine of $100 for a first offender,
- Mandatory alcohol education programs for at least three months,
- Community service, probation, and other measures aimed at addressing the underlying issue of underage drinking and driving
c) BAC of .08% or Higher or Actual Impairment
Vehicle Code 23152 VC addresses driving under the influence (DUI) offenses. It focuses on two primary factors that can lead to a DUI charge:
- Actual impairment — Under VC 23152(a), it is illegal for any person to drive a motor vehicle while under the influence of alcohol and/or drugs to the extent that their mental or physical abilities are impaired. This means that if a person's ability to operate a vehicle is noticeably affected by alcohol or drugs, regardless of the specific BAC level, they can be charged with DUI.
- BAC of 0.08% or higher — Under VC 23152(b), it is illegal for any person to drive a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher. This is the standard BAC limit for adult drivers.
Individuals can be charged with DUI under VC 23152 for being impaired or having a BAC of 0.08% or higher. Prosecutors can pursue charges based on either the impairment of the driver or the BAC test results, or both, depending on the circumstances of the case.
If convicted of a DUI offense under VC 23152, penalties can include the following:
- Fines ranging from $390 to $1,000
- Driver's license suspension of at least one year
- Mandatory attendance of alcohol education programs. It could be a 3-month or 9-month program
- Probation instead of jail time, and
- Potential jail time of up to six months (though in rare cases), among other consequences.
Potential Adult Charges an Underage Driver Could Face
An underage driver driving under the influence (DUI) could be charged with various adult DUI offenses and specific underage DUI charges. Some of the adult DUI charges an underage driver could face include the following:
- VC 23152(f) charges for driving under the influence of drugs (DUID) — VC 23152(f) applies to individuals who operate a motor vehicle while under the influence of any drug, whether it is illegal drugs, prescription medications, or even over-the-counter drugs, to the extent that it impairs their ability to drive.
- VC 23153, DUI Causing Injury — If an underage driver causes injury to another person while driving under the influence, they could be charged with DUI causing injury. This offense carries more severe penalties compared to a standard DUI charge.
- VC 23550, felony DUI — If an underage driver has prior DUI convictions or other aggravating factors, they could be charged with felony DUI. This offense is a more serious charge that can result in more significant penalties, including potential prison time.
Refusal to Take a Breathalyzer Test
If an underage driver refuses to take a breath test, it can have inevitable consequences under the state's implied consent laws.
Administrative License Suspension
Under California's implied consent laws, by driving on public roads, individuals are deemed to have given their implied consent to submit to a chemical test if lawfully arrested for DUI. If an underage driver refuses to take a breath test, their driver's license could be subject to an administrative license suspension. The DMV can suspend the license for one year for a first offense.
The Department of Motor Vehicles (DMV) can take specific actions regarding a driver's license based on prior convictions. Here are the accurate details:
- Chemical test refusal — If a driver has one or more prior convictions for refusing a chemical test (for example, a breath test or blood test), the DMV can revoke his/her driver's license for a more extended period. The specific duration of the license revocation depends on the individual's prior record and other factors.
- DUI or "wet reckless" convictions — If a driver has one or more prior convictions for DUI or "wet reckless" (a reduced charge from DUI), it can result in increased penalties, including more extended license revocation periods. The revocation duration varies depending on the number of prior convictions and the case's specific circumstances.
Challenging a Driver’s License Suspension
Drivers have the right to challenge the suspension of their license following a DUI-related offense. If the DMV suspends a driver's license due to a DUI arrest, they can request a DMV hearing to contest the suspension.
Here are some critical points regarding challenging the suspension of a driver's license:
a) DMV Hearing
The driver must request a DMV hearing within a specified timeframe (typically ten days) from the date of the suspension notice. Failure to request a hearing within this timeframe could result in the automatic suspension of the license.
DMV hearings related to license suspension after a DUI arrest can be conducted over the phone. This is often the default method, unless the driver requests an in-person hearing. However, it is worth noting that the availability of in-person hearings depends on the DMV's policies and resources.
The driver has the right to be represented by an attorney at the DMV hearing. An attorney can provide valuable guidance, review the evidence, present arguments, and advocate for the driver during the hearing. Often, an attorney can handle the DMV hearing entirely on the driver's behalf. This means the attorney can gather evidence, present arguments, question witnesses, and address the issues raised in the hearing without the driver's direct involvement. However, the driver must provide their attorney with the necessary information and cooperate closely throughout the process.
b) Issues at the Hearing
The driver or their representative can raise various issues during the DMV hearing, for example, challenging the accuracy or reliability of the breath or blood test results, questioning the lawfulness of the arrest, or providing evidence of compliance with required procedures.
c) Hearing Outcome
The hearing officer will decide on the license suspension based on the evidence presented at the hearing. If the driver successfully challenges the suspension, their license could be reinstated. If the suspension is upheld, the driver could face the agreed-upon license suspension period.
Winning the DMV Hearing
If the driver is successful at the DMV hearing and presents a strong case, the DMV will cancel the license suspension or revocation. However, winning at the DMV hearing relates specifically to the administrative license suspension, separate from any criminal penalties or charges related to the DUI offense in court.
Requesting a Restricted License
An underage driver can be eligible to obtain a restricted license under certain circumstances.
- Critical need or hardship — An underage driver who has had their license suspended due to a DUI-related offense could be eligible for a restricted license if they demonstrate a critical need or hardship. This typically involves showing that there is a necessary reason for driving, for example, attending school, work, or medical appointments and that there are no reasonable alternatives for transportation.
- Eligibility requirements — To be eligible for a restricted license, the underage driver must meet specific criteria. Generally, the driver must serve a minimum portion of their license suspension period before becoming eligible for a restricted license. If an underage driver's license suspension results from refusing to take a chemical test during a DUI-related arrest, they are generally not eligible for a restricted license.
- Application process — The underage driver or their legal representative must apply for a restricted license through the Department of Motor Vehicles (DMV). The application typically involves submitting relevant documentation, for example, proof of enrollment in school or work, a completed application form, and any required fees.
- Restricted license conditions — If granted a restricted license, the underage driver will be subject to certain conditions and limitations. These conditions include restricted driving hours, specific destinations allowed, and the requirement to maintain proof of financial responsibility, for example, SR-22 insurance.
Appeal the Hearing Officer's Decision
They can appeal if the driver disagrees with the hearing officer's decision. This typically involves submitting a written request and paying a fee of $120 within 15 days. The appeal process allows for a review of the decision by a higher authority or an administrative review board.
License Reinstatement
At the end of the license suspension period, the driver can apply for license reinstatement by:
- Paying a reissue fee of $125 to the DMV
- Filing an SR-22 proof of financial responsibility, and
- Maintaining proof of financial responsibility for a designated period, typically three years
An SR-22 is a form an insurance company provides as proof that the driver has the required auto insurance coverage.
Challenging the Underage Drinking and Driving Charges
Criminal defense attorneys can use several legal strategies in defense against underage drinking and driving charges. The effectiveness of these defenses depends on the specific circumstances of the case. Here are some typical legal defenses:
a) Lack of Probable Cause
You can challenge the legality of the traffic stop. If the law enforcement officer did not have reasonable suspicion or probable cause to stop you in the first place, any evidence obtained from the stop, including the results of a breath or blood test, will be deemed inadmissible in court.
b) Improper Field Sobriety Tests
Field sobriety tests (FSTs) are often conducted during a DUI stop. These tests include tasks like walking in a straight line, balancing on one leg, or following a pen with the eyes. Challenging the administration and interpretation of FSTs can be a defense strategy, as the results can be influenced by factors other than intoxication, for example, nerves, fatigue, or physical conditions.
c) Inaccurate Breath or Blood Test Results
Officers use breath and blood tests to measure blood alcohol concentration (BAC). Challenging the accuracy and reliability of these tests can be a defense tactic. Factors like improper calibration of the testing equipment, mishandling of samples, or issues with the testing process itself can cast doubt on the validity of the test results.
d) Rising Blood Alcohol Defense
The "rising blood alcohol" defense argues that the underage driver's BAC was below the legal limit at the time of the driving. Still, it increased to an illegal level when officers conducted the chemical test. This defense relies on the fact that alcohol takes time to absorb into the bloodstream, and there can be a delay between driving and testing.
e) The Driver Suffers From a Medical Condition
A medical condition like GERD (gastroesophageal reflux disease) or acid reflux can be used as a defense in a DUI case.
One common approach is to argue that the presence of alcohol detected on a breathalyzer test was due to a medical condition rather than actual alcohol consumption. GERD, or acid reflux, can cause the regurgitation of stomach contents into the mouth, including alcohol from the stomach, resulting in a falsely elevated breath alcohol reading. In these cases, you can consult a medical expert to testify about the connection between the medical condition and the inaccurate breath test results.
If a blood test was conducted instead of a breath test, the defense could argue that the medical condition affected the absorption and distribution of alcohol in the driver's bloodstream, leading to an inaccurate measurement of their BAC.
f) Violation of Miranda Rights
If the underage driver was not adequately informed of their Miranda rights (right to remain silent, right to an attorney), the courts could suppress any statements they made during the arrest or investigation.
g) Necessity Defense
In rare cases, underage drivers could argue that they were forced to drive due to an emergency or an immediate threat to their safety. The necessity defense asserts that the underage driver had no reasonable alternative to driving.
h) Title 17 Violations
Title 17 sets forth the rules and guidelines for collecting and analyzing chemical tests in DUI cases. Violations of Title 17 could impact the admissibility and reliability of the DUI equipment and tests administered. Some common violations that a criminal defense attorney can raise as defenses in DUI cases include:
- Improper maintenance and calibration — Title 17 requires that DUI testing equipment, for example, breathalyzer machines, be regularly maintained and calibrated to ensure accurate results. Any failure to follow these maintenance and calibration procedures could lead to inaccurate readings and potentially render the test results inadmissible in court.
- Administration errors — Title 17 also provides specific guidelines for administering DUI tests. Violations could include improper training of the testing personnel, failure to observe the driver for the required observation period, or failure to follow specific breath or blood sample collection procedures. Any deviations from the prescribed guidelines could raise doubts about the accuracy and reliability of the test results.
- Documentation and record-keeping — Title 17 requires the proper documentation and record-keeping of DUI tests, including the maintenance records, calibration logs, and chain of custody for blood samples. Failure to maintain accurate and complete records could undermine the credibility of the test results and provide a basis for challenging their admissibility in court.
- Violation of blood collection procedures — If a blood test was administered, Title 17 provides specific guidelines for blood collection procedures, including the use of anticoagulants and preservatives, proper storage and transportation of blood samples, and adherence to infection control protocols. Any violation of these procedures could call into question the integrity of the blood test results.
Find an Experienced DUI Attorney Near Me
You need the assistance of an experienced criminal defense attorney with experience handling DUI cases. Attorneys at the California Criminal Lawyer Group have the requisite skills and understanding of DUI laws you need to challenge your or your child’s underage DUI charges. Call our Bakersfield offices today at 661-750-8230 to schedule your free case evaluation.