Driving under the influence (DUI) involves operating a motor vehicle while under the influence of alcohol or drugs. The standard legal limit for alcohol content in your blood is 0.08% across the state, so you will face standard DUI charges if you exceed this legal limit. The law is even stricter for underage drivers (drivers under 21). Since the legal drinking age is at least 21 years, the law doesn’t expect an underage driver to drink and drive. Hence, any detectable alcohol content in your body as an underage driver can lead to criminal punishments under California zero tolerance law. If you are facing any charges for underage DUI in the Los Angeles area, get in touch with us at Los Angeles Criminal Attorney as soon as possible. We are here to review your charges and help build a defense strategy that could possibly have the charges dropped or reduced.

DUI Laws for Underage Drivers

California DUI laws stipulate that an underage driver is any driver who is below 21 years. Thus, an underage driver who drives under the influence of alcohol would have violated the DUI laws.

  1. California Zero Tolerance Law (Vehicle Code 23136 VC)

California does not expect people who are below 21 years to drink — thus, you will face punishments if you drink and operate a vehicle. This is referred to as “zero tolerance,” meaning the state does not tolerate any form of underage DUI.

Under Vehicle Code 23136, the legal limit of blood alcohol content is 0.01%. This is considered the lowest BAC percentage that can be detected in your blood. This means that even the slightest smell of alcohol on your breath could lead to punishment under zero tolerance law.

A slight detection of alcohol in the blood does not always result from alcohol intake — for example, you could have taken a medication and not necessarily an alcoholic beverage. Regardless, you would still have violated zero tolerance law since the law does not consider whether the content was a direct result of alcohol or not.

The first step for identifying if you have alcohol in your blood involves a pullover by the police. This might be done at random DUI checkpoints, if an officer is in pursuit for an alleged crime, or if you exhibit erratic driving behaviors. Then the officer will likely ask you to take a breath test to determine your BAC level, which is usually done by a Breathalyzer.

Note that you don’t have the right to refuse to take a breath test as an underage driver. This is because zero tolerance law assumes that all underage drivers are below the legal drinking age, so they must not have any detectable alcohol in their blood. If you refuse to take the test, you will face an automatic license suspension and the Department of Motor Vehicles will not issue a restricted license.

Violating Vehicle Code 23136 is not a criminal offense. Therefore, you will only face license suspension for one year if you are a first-time offender. This period is likely to be extended if you violate the law for subsequent times.

After violating VC 23136, the arresting officer will confiscate your license and issue a temporary license. This temporary license is valid for 30 days, after which the license suspension or revocation date takes effect. This will not happen if you request a DMV administrative hearing within 10 days.

A DMV hearing will typically happen over the phone. This hearing will determine whether you should have your license back as well as block a potential automatic license suspension. While these hearings are typically straightforward, you can hire an attorney to represent you in the hearing and avoid potential mistakes.

If you violate vehicle code 23136 and your alcohol content is 0.05%, you will face criminal charges under vehicle code 23140.

  1. Underage DUI Under Vehicle Code 23140

Vehicle code 23140 is often referred to as underage DUI law. This law prohibits any underage or juvenile driver to operate a vehicle with a blood alcohol content of 0.05% or more.

Violating this law means you have committed two offenses, which are underage driving with 0.05% or more and underage drinking and driving (zero tolerance law). However, you will only be charged under VC 23140 and cited for breaking zero tolerance law.

Similar to other DUI arrest procedures, an underage DUI arrest will begin with a pullover, followed by preliminary alcohol screening (PAS) tests. A post-arrest test, such as a chemical test, might as well be necessary to provide conclusive results regarding your BAC level. Note that under the implied consent law (all drivers consent to submit to a DUI chemical test unless in special circumstances), you cannot refuse to submit to a DUI breath or blood test if you are asked to do so.

If your BAC is 0.05%, you are likely to face these penalties:

  • At least one year of driver’s license suspension (you have to request a DMV hearing to defend your license)
  • 100 dollars fine for a first offense
  • Impounding of your vehicle if you have a prior underage DUI conviction, a standard DUI (Vehicle Code 23152 (a)) conviction, your blood alcohol content exceeds 0.1%, or you refused to take a chemical test. The impounding period is usually less than five days

If you are 18 or more, you will be enrolled in a mandatory alcohol education program for three or more months depending on your age and other circumstances of your case.

  1. Standard DUI (Vehicle Code 23152 (a) and (b))

California standard DUI law usually applies to adult drivers (people who are legally allowed to drive and above the drinking age) who operate a vehicle while under the influence of alcohol. This law is sometimes referred to as adult DUI law, actual impairment law, or DUI per se law.

While underage DUI under VC 23140 is usually satisfactory to charge underage drivers, prosecutors might push for additional charges or have the driver charged as an “adult.” This usually happens if there are aggravating factors like hit and run, injuries/damages/death, a very high BAC level, etc.

An underage driver will possibly face charges under:

  • Vehicle code 23152 (a) for driving under the influence of alcohol. This is usually known as actual impairment, where the driver must actually be impaired by alcohol or drugs
  • Vehicle code 23152 (b) for driving with a BAC level of 0.08% or more

A standard DUI carries varying penalties depending on facts surrounding the case like if there were injury parties or death. However, it is usually a misdemeanor with the following penalties:

  • Driver’s license suspension for one year
  • Informal probation of 3 to 5 years
  • $390 - $1000 in fines
  • 3 months or 9 months of alcohol education program. You will be enrolled in a drug education program for the same period if you were driving under the influence of drugs

Misdemeanor standard DUI does not usually attract a jail sentence. If the court decides to sentence you, then you will spend time in county jail for a maximum of 6 months.

Underage drivers can face additional or even felony charges under:

  • Vehicle code 23153 for driving under the influence and causing injury
  • Vehicle code 23152 (f) for driving under the influence of drugs
  • PEN 187 for Watson/ DUI murder
  • PEN 191.5 for vehicular manslaughter while intoxicated

Defending Against Underage DUI: Challenging Results of DUI Chemical Tests

Whether you are charged under VC 23140 or 23152 for underage DUI, DUI chemical tests will play a vital role in your case. Most prosecutors will submit a blood or urine test showing your BAC level. Thus challenging these results should form an integral part of your defense strategy. Here are ways of challenging these results:

Implied Consent Advisement

Implied consent law provides that underage drivers should submit to a DUI chemical test when required to do so. However, many drivers do not understand this law and they might have been facing punishments for an honest mistake. The arresting officer should inform you of the consequences of refusing to submit to the tests. Thus, you can argue that you weren't aware of the consequences you are facing.

Improper Procedure of Administering the Blood Test

Title 17 regulations provide how DUI blood tests must be done. Firstly, blood must be withdrawn by an authorized physician. Secondly, the physician should not use an alcohol-based cleaning agent to sterilize the site where blood is withdrawn. If this happens, the test results might have a higher BAC level. Thirdly, the officer should ensure the blood sample does not ferment. This is done by the use of a sufficient amount of blood preservatives and anticoagulants. The anticoagulant and preservative used should be mixed evenly with the blood sample and should not be expired. Finally, the sample should be properly stored.

While blood tests are believed to be the most reliable chemical tests, a violation of the above procedure could lead to false BAC results.

False Breath Test Results

Similar to blood tests, breath tests must follow specific procedures under Title 17. Many arresting officers usually overlook these regulations, because many arrestees are not usually keen on how breath tests are performed at the time of the arrest. Firstly, the breath sample must come from alveolar air. Alveolar air provides the most accurate breath content from deep exhalation from the lungs. Secondly, you must be observed for at least 15 minutes before taking the test. At this time, you should not regurgitate, vomit, drink, smoke, or eat anything. Finally, the state should calibrate the breathalyzer every 150 uses or 10 days.

Title 17 regulations for breath tests are usually the most successful areas for challenging preliminary alcohol screening tests. While the procedures look straightforward, most officers don’t follow them. Therefore, any result from unprocedural breath tests should be inadmissible, whether or not the results are positive.

Other Legal Defenses for Underage DUI

Apart from challenging DUI chemical tests, your attorney can employ these defenses.

You are not underage: This will require producing identification documents that support you being over 21. Note that even if you are over 21, you might evade a citation for breaking zero tolerance law but might face charges as an “adult” driver.

No driving: No driving offense entails proving that you were not operating the vehicle. The police need not see the vehicle moving in order to conclude you were driving. Any circumstantial evidence like having hands on your steering could make them conclude you were driving. If your BAC level was below 0.05% and you successfully prove you were not driving, you will not face criminal charges but only license suspension under zero tolerance law.

The police had no probable cause to arrest you: DUI arrests happen after an officer stops you after you break a traffic rule, during a random DUI stop, or when you are driving erratically. In some instances, an officer cannot subject you to DUI breath and blood tests if they don’t have the above probable causes of stopping and arresting you. This defense could be used to challenge charges like refusal to submit to a chemical test.

You have a medical condition: A medical condition like acid reflux or GERD can spike up the alcohol content of a person’s blood, thereby giving a higher BAC result.

Others include the testing equipment did not work properly, the alcohol content in your mouth resulted from another source that is not an alcoholic beverage, and others.

The DMV Hearing to Challenge License Suspension for Underage DUI

Underage drivers will certainly get a license suspension when they drink and drive, regardless of whether they are charged under zero tolerance law or VC 23140 or VC 23152 laws. The license suspension period will depend on whether you are a first-time or subsequent offender.

After an arrest, the officer will confiscate and send your license to the Department of Motor Vehicles. The department will issue you a temporary license to use throughout your hearing. The department can also deny you a temporary hearing, specifically, if you refused to submit to a chemical test or your charges are severe.

The temporary license is usually valid for 30 days, upon which the department will automatically suspend your license unless you request a DMV hearing within 10 days. Usually, the hearing occurs over the phone but you can request it to occur in person. You can also handle the hearing yourself or have an attorney handle it on your behalf. DUI defense attorneys are conversant with DUI DMV hearings so you can have the attorney handle both your criminal case in court and your DMV hearing.

The DUI DMV hearing is different from a DUI court proceeding. The former’s aim is to decide whether to restore, suspend, or revoke your driving privileges, but it cannot fine or sentence you. Also, the burden of proof in a DMV hearing is usually easy to achieve — an officer is only required to prove you were intoxicated while driving.

After the DMV Hearing

The DMV hearing has two outcomes, winning or losing. Winning in the hearing means the DMV will reinstate your driving privileges.

However, winning at the DMV hearing does not mean you will not face ongoing criminal charges. This is because the DMV hearing and DUI court cases are different and independent proceedings. But losing in your court case can influence the DMV hearing since then the hearing officer will easily believe you were driving under the influence.

If you lose in the hearing, you can appeal the decision or request a restricted license. A restricted license will only apply if you did not refuse to submit to a DUI chemical test. Appealing involves paying 120 dollars within 15 days from the decision date, done in writing.

If you lose and don’t go for an appeal (or lose your appeal), your license suspension will take effect. After the suspension period, your license will be reinstated after you pay 125 dollars to the DMV as a reissue fee, file an SR-22 form, and maintain proof of financial responsibility for 3 years.

Additional and Related Offenses

Driving while Drinking or Smoking Marijuana (VEH 23221)

This law does not necessarily apply to drivers — a passenger can also be charged if they're smoking or ingesting marijuana while in a moving vehicle. This law also applies to a passenger who is drinking alcohol in a moving vehicle. A violation of this law attracts penalties not exceeding $100.

Driving in Possession of Marijuana

Vehicle code 23222 (b) prohibits juveniles from driving while they are possessing marijuana. This law does not apply in circumstances where the drug possibly implies personal use, for instance, if the seal of the container is broken. The fine for this infraction does not exceed $100.

Underage Possession of Alcohol in a Vehicle

An underage driver who possesses alcohol in their vehicle can face punishments under vehicle code 23224. This is because the legal drinking age is 21 and possessing alcohol can imply you were drinking. To show that you did not violate the law, the container having the alcohol must be unopened and sealed, and the content should be full. Also, you must be in the company of your parents or an adult, or you are getting rid of the content, you have a legitimate license that allows you to carry alcohol around as part of your job.

Underage possession of alcohol in a vehicle will lead to misdemeanor penalties that include 30 days of vehicle impounding, a maximum of $1000 in fines, and driver’s license suspension of up to one year.

Vehicular Manslaughter while Intoxicated

You could face penal code 191.5 (a) charges for vehicular manslaughter charges while intoxicated if you engage in negligent behavior while intoxicated and cause the death of another person. In most cases, your charges will end under vehicle code laws and will be prosecuted outside vehicle code laws if another party dies. This crime can be punished as a misdemeanor or a felony. A misdemeanor carries a one-year jail sentence while a felony attracts &10,000 in fines and a sentence of four years.

DUI or Watson Murder

This is the most severe form of crime you can face for violating DUI laws. DUI/ Watson murder often occurs if you received Watson Advisement in a prior DUI conviction or your drunk driving resulted in more than one death. A Watson Advisement is a formal statement that you sign after a DUI conviction, where you consent to know the dangers that drunk driving can cause to yourself and others. This means that mitigating factors like causing a severe accident in your current DUI case are likely to escalate your charges to DUI murder if you had a Watson Advisement.

The sentence for this crime is a maximum of 15 years in prison and a fine of $10,000. You will also get a strike, meaning that your sentence will increase every time you commit the offense.

Some of the above charges like underage possession of alcohol can be used as reduced charges if you are facing underage DUI charges. Others like vehicular manslaughter while intoxicated are severe crimes that could aggravate your charges. Therefore, you should not take any case lightly — engage the help of an attorney when you are arrested.

Contact an Underage DUI Defense Attorney Near Me

Facing an arrest as an underage driver can be confusing (leave alone facing the court), especially if it is your first-time offense. Even if you have fought these charges before, you might need the help of an expert attorney since courts treat subsequent criminal charges more seriously. That is why we at Los Angeles Criminal Attorney have a dedicated team of attorneys that are on standby to listen to your case. We understand the intricate aspects of criminal law and we have immense knowledge that could even help us negotiate a deal before your case is taken to court. If you are facing charges for underage DUI in the Los Angeles area, don’t hesitate to call us today at 424-333-0943.