To be guilty of DUI in California, you should have a blood alcohol concentration (BAC) of .08% and above. However, if you are under the age of 21 years, you may be guilty of DUI for the presence of slight alcohol content in your blood. Under the California Zero Tolerance Law, you may face DUI charges if you have any alcohol in your system; the law prohibits minors from indulging in alcohol and drunk driving. The Orange County DUI Defense Lawyer is an experienced law firm that handles all types of DUI cases.
Overview of DUI under California Law
Under California DUI Laws, two laws focus on underage driving under the influence. California's Zero Tolerance Law (Vehicle Code 23136) prohibits driving with a BAC of above .01% while Vehicle Code 23140, prohibits underage driving with a BAC of .05% or more. The two laws apply to California drivers who are under the age of 21 years. Both laws may apply even if an underage person's driving is not impaired by alcohol as long as there is some alcohol content in the driver's blood.
California's Zero Tolerance Law for Underage Drinking and Driving - VC 23136
Under Vehicle Code 23136, it is a civil offense for a person under the age of 21 years to operate a vehicle with a blood alcohol concentration of .01% or more. The under 21 Zero Tolerance Laws apply to all beverages that contain alcohol and not just purely alcoholic drinks. In some instances, even medicines with alcohol content may subject a driver to DUI charges under VC 23136.
Under Vehicle Code 23136, the blood alcohol concentration is measured using a preliminary alcohol-screening test (PAS). This test is a roadside test that is administered on a Breathalyzer or similar equipment. After measuring the amount of alcohol in a driver's breath, the device automatically converts the results into a roughly equivalent BAC.
In California, it is mandatory for all underage drivers suspected to be driving under the influence to submit to a preliminary alcohol screening (PAS) test. This helps the law enforcement officer to detect any amount of alcohol in the underage driver's system.
How does a PAS test work? Most of the alcohol you consume gets absorbed in your stomach and the small intestine. The alcohol then passes directly into the bloodstream and is carried to other organs in your body. A small amount of alcohol is excreted to your lungs, and it is this alcohol that a PAS test detects. Unlike blood tests, breath tests cannot directly measure BAC. Instead, a breath-testing machine mathematically converts the results of the breath test to a roughly equivalent blood alcohol content.
Penalty for Violating Vehicle Code 23136 VC
Violation of VC 23136 is not a criminal offense in California. After breaking this law, an underage driver faces a mandatory suspension of their driver's license. The license is suspended for one year after violating the California zero tolerance law for underage drinking and driving for the first time.
If an offender has a history of violating California's drunk driving rules, the license may be suspended for two to three years.
Underage Driver with a BAC of .05% or Higher-VC 23140
Under the California Vehicle Code 23140, it is unlawful for any juvenile under the age of 21 years to drive with a blood alcohol concentration of .05% or higher, commonly known as underage DUI. After arresting a juvenile for drunk driving, BAC is confirmed by performing a post-arrest DUI chemical test. The chemical test may be either:
DUI Breath Test
It is mandatory for all drivers lawfully arrested for DUI to take a chemical test. The post-arrest chemical test is also known as the evidentiary test, and even if a driver had previously taken a preliminary analysis, he has to take the evidentiary test. Most people prefer a breath test to a blood test as it is less invasive and faster. However, not every driver is a candidate for a breath test.
Under the California law of implied consent, people who operate vehicles in California are deemed to have consented to take either a DUI blood test or DUI breath test. Drivers are given a choice between a breath test and a blood test. However, there are some exceptions; a driver may strictly have to take a blood test if:
The law enforcement officer has a reasonable belief that the driver was driving under the influence of a drug, DUID. In the case of a drug, a blood test may be crucial
A blood test may be conducted if the driver under evaluation is unconscious or dead
If a driver is in a medical facility where a breath testing equipment is not accessible, a blood test may be necessary
If the driver is too drunk and cannot manage to blow air into the breath testing equipment, a blood test would come in handy
Penalties for Driving with a BAC of .05% or Higher
Violation of underage DUI Vehicle Code 23140 is an infraction under California law, which refers to a low-level criminal offense. Violating the Underage DUI law may not lead to imprisonment, but there are some associated penalties, which include:
Suspension of the driver's license for one year if convicted for a first time DUI offense; for repeat offenders, the suspension may be for a more extended period
For a first-time offense, the offender may pay a fine of up to one hundred dollars
For a driver who is at least 18 years of age, they may be required to attend a mandatory alcohol education program that may last for three years or longer
Actual Impairment or BAC of .08% or Higher- VC 23152
As an underage driver, you may face standard adult DUI charges if the law enforcement officer proves that your ability to drive is impaired due to an intake of alcohol or drugs as outlined in VC 23152 (a). You may also face adult DUI charges if you record a BAC of .08% or higher after a DUI test as outlined in VC 23152 (b).
Penalties for Standard DUI Charges
Under California law, violating VC 23152 is a misdemeanor offense. If no one is injured as a result of your drunk driving, you may face the following penalties as a first time offender:
Your driver's license may be suspended for one year
You may serve three to five years of informal summary probation
The fines for the offense may range between three hundred and ninety dollars ($390) to one thousand dollars ($1,000)
The court may require you to undertake a three month to nine-month drug or alcohol education program
In some rare cases, you may serve up to six months in a county jail
Additional Consequences of Underage DUI
The adverse effects of underage DUI conviction may go beyond fines, probation, license suspension, and alcohol education. After a juvenile DUI conviction, other possible consequences include:
Negative Employment Background Check Results
An impaired driving charge or a DUI conviction may ruin your chances of career development. It is common for employers to conduct background checks on current or existing employees. Depending on how an employer conducts a background check, they may discover your underage DUI conviction. A previous DUI conviction may ruin your reputation and hinder your career advancement.
Impacts on Insurance
After a conviction of underage DUI, you can expect to pay much higher auto insurance premiums. After discovering your DUI conviction, your auto insurance provider may consider you a high-risk driver. The insurance provider may drop you from the policy altogether, and you would have to shop around for a new insurance provider.
Other Standard DUI Charges an Underage Driver Can Face
In addition to zero tolerance and underage DUI convictions, a young driver may face some additional standard DUI charges depending on the circumstances surrounding their DUI charges. Other DUI charges that an underage driver may face include:
Vehicular Manslaughter Under Intoxication - California Penal Code 191.5 (b) PC
Vehicular manslaughter may arise if a young driver commits a crime of underage DUI and engages in some additional negligent behavior, and as a result, a person is killed. If a prosecutor believes that the driver acted with gross negligence, the driver may face serious charges of gross vehicular manslaughter under intoxication (PC 191.5 (a)).
Vehicular manslaughter is a wobbler in California, and the underage driver may face misdemeanor or felony charges. A misdemeanor may attract up to one-year imprisonment in the county jail. On the other hand, a felony may attract penalties of sixteen months, two years, or four years of jail time. If convicted of vehicular manslaughter while intoxicated, the underage driver's license is suspended.
In defense against vehicular manslaughter, the offender may assert that they did not operate the vehicle while intoxicated, did not act in negligence, or if negligence was present, it did not cause the victim's death. A driver may also point out that they were facing an absolute emergency, and acted reasonably under the circumstances.
DUI Murder/Watson Murder
For a very severe case of DUI-related death, an underage driver may face murder charges as opposed to vehicular manslaughter charges. A driver may face murder charges after killing more than one person due to driving under the influence. A driver may also face Watson Murder charges if they had undergone education on the dangers of DUI, or received Watson advisement at the time of a prior DUI conviction. A Watson advisement is a warning that informs the driver about the severe danger of drunk driving to human life and telling them that murder charges may result if they kill a person due to intoxicated driving.
Refusing to Undergo Breath Testing
There are some consequences of refusing to undergo breath testing after an arrest. Your underage driver's license may be suspended for a minimum period of one year. After an ultimate conviction of underage DUI, you may face enhanced imprisonment of at least forty-eight hours. However, if a driver chooses blood testing and is adamant about undergoing breath testing, there are no associated penalties.
Failure to submit to a PAS test or a post-DUI arrest test may lead to revocation of driving license for two years or more if you have a prior conviction of a chemical test refusal, DUI charges, or wet reckless crime under DUI law.
Challenging the Results of DUI Breath Test
It is common for breath tests results to have some errors, and this may lead to high BAC results that do not depict the actual DUI state of a driver. Therefore, if a breath test reveals that you are guilty of underage DUI, a competent DUI defense lawyer may help you challenge the breath test results in court.
An attorney can challenge breath test results using the provisions under California Code of Regulations’ Title 17 that sets forth the acceptable guidelines that should be followed when conducting a DUI chemical test. When collecting and processing the DUI breath samples, laboratories, and law enforcement officers must follow the guidelines outlined under Title 17.
BAC results may be incorrect and unreliable if the right procedures are not followed and your DUI defense lawyer may use this omission for your advantage. Under California 1538.5 PC, a lawyer may file a motion to exclude evidence. If the jury is in agreement with the proposal, the breath test results may be dismissed as unacceptable. There will be no evidence of your BAC results, and your attorney may file for a plea bargain or request the court to dismiss the underage DUI charges.
Under Title 17, there are some mandatory requirements for a breath test, and they include:
The DUI test equipment must be maintained in excellent working condition at all times
After every ten days or after using the test device on more than one hundred and fifty drivers, whichever comes. First, the breath testing machine must be calibrated
The person conducting the DUI breath test should have undergone training on how to use the test device
Before the breath test is conducted, the testing expert must observe a driver for not less than fifteen minutes. During the observation period, the testing officer must ensure that the driver does not smoke, burp or vomit as this may force alcohol out of the stomach into the mouth, and the driver should not put anything in their mouth
The DUI breath testing expert should ensure that they collect deep alveolar air which is air from inside the driver’s lungs
The test personnel should obtain at least two breath tests, and the tests should not vary with each other with more than 0.02 grams for every 100 ml of alcohol content in the blood
It is a requirement for the lab conducting the DUI analysis to keep a comprehensive record of the equipment calibration and results of the breath test.
If the above requirements recommended under Title 17 are violated, you can base your defense for underage DUI on the violations and assert that the DUI breath results are not credible.
Can an Underage Driver Challenge License Suspension
As an underage driver, you may challenge the revocation of license even if the license was revoked as a result of refusing to undertake a DUI test. Your DUI lawyer may help you to request for a license suspension hearing from the Department of Motor Vehicles (DMV). The hearing is not automatic, and the driver has to request within ten days after being cited for VC 23136 or after refusing to take a DUI test. The hearing does not take place in court and may be conducted on the phone unless the driver requests a one on one hearing. A DUI attorney can handle the entire hearing process on behalf of the driver.
The revocation of the license is canceled if the driver wins at the hearing. If the driver loses at the hearing, they may request a restricted license or appeal the decision of the hearing officer.
After losing the license suspension hearing, an underage driver may get a restricted hardship or critical use license. The exclusive license allows the offender to drive to and from school or work, especially if no other transportation is available. The restricted license is not available if the suspension of the license resulted from a refusal to take a chemical DUI test.
Offenses Related to Underage DUI
The California Vehicle Code 23224 prohibits possession of alcohol in a vehicle by a person under the age of 21 years. If you are below 21 years, you may face challenges for carrying alcohol in your car unless:
You are in the company of an older adult or your parent
The alcohol container is full, sealed, and unopened
Carrying the alcohol is part of your job if for instance you are employed by a person who has a valid liquor license
If you are in the process of getting rid of the alcohol under the instructions of a specified adult or a parent
Violating the law against possession of alcohol by a person under the age of 21 may have penalties such as impoundment of the underage driver's vehicle for up to 30 days. You may face fines amounting up to one thousand dollars ($1,000). You may also face a one-year suspension of your driver's license.
Legal Defenses to California‘s Underage DUI Charges
With the help of a DUI lawyer, an underage driver facing underage DUI charges can defend themselves from the accusations in many ways:
Not Driving Defense
An attorney can defend you on the grounds of you did not drive. This is a common defense strategy; notably, no one saw you operating the vehicle, including a police officer or other people. Police, especially in the case of an accident, or if your car breaks down, do not observe all DUI crimes. If reasonable doubt exists that you did not operate the vehicle under the influence, you cannot face underage DUI charges.
Lack of Probable Cause for DUI Stop and Arrest
In the context of California DUI, the law enforcement officer must have some justification before initiating a traffic stop and arresting anyone. The reason includes a reasonable suspicion that prompts a DUI stop. The law enforcement officer also needs to have a probable cause for making a DUI arrest. These standards apply to all California DUI cases. Your DUI defense lawyer might file a motion to suppress evidence if the law enforcement officer did not have probable cause for a DUI stop and arrest.
Rising Blood Alcohol
You may adopt the rising blood alcohol defense strategy after facing DUI charges. The defense strategy asserts the fact that the blood alcohol concentration (BAC) levels continue to rise even after a person stops drinking. Immediately after consuming an alcoholic beverage, BAC rises rapidly and continuously until it reaches a peak between thirty minutes and two hours after drinking. Although your BAC may have been above the set limit at the time of the DUI test, it does not mean the blood alcohol content was high as you were driving. This defense is mainly applicable if BAC results exceed the legal limit by minimal margins.
Mouth alcohol is a common defense for underage DUI. Mouth alcohol refers to traces of alcohol that remains in the linings of the mouth after consuming alcohol. Alcohol-based mouthwash and breath sprays may leave traces of alcohol in your mouth. A DUI breath test automatically detects this alcohol even if a drink is artificial and has not been absorbed into the bloodstream. The DUI test machine may report a falsely high BAC. It is possible for a person who did not drink to test positive on a DUI breath test.
High Protein/Low Carbohydrate Diet
Some diets, as well as some illnesses, may make the body release some substances that have similar chemical characteristics as alcohol. Such substances are called ketones. DUI breath test equipment may not be able to distinguish between ketones and alcohol effectively. DUI test may, at times report false elevated levels of BAC. Conditions such as diabetes and hypoglycemia may lead to the production of ketones in the body. A low carbohydrate/high protein diet may result in the production of ketones.
Contact an Orange County DUI Lawyer Near Me
Underage DUI is illegal, and there are many consequences associated with it. Besides the common penalties of license suspension, court fines, and alcohol treatment programs, underage drunk driving may have far-reaching negative impacts on an offender's career and auto insurance. When facing underage DUI charges, it is wise to work with an experienced DUI defense lawyer who can help negotiate a favorable outcome for you. At Orange County DUI Defense Lawyer, we can handle all DUI related charges, including Underage DUI. Contact us at 714-820-9592 and speak to one of our lawyers. We will be happy to assist you!