The penalties for driving under the influence of drugs or alcohol are severe in California and do not exempt underage persons. If you are below the age of 21 and have been arrested for drunk driving, the consequences might even be more severe than for adults, including hefty fines and mandatory alcohol education lessons. So, if you or your child is underage and facing DUI charges, contact the San Jose DUI Attorney Law Firm to avoid severe consequences.
California Laws Regarding Underage Driving Under the Influence
The number of teenagers who lose their lives in traffic accidents are very high. The majority of these accidents are caused by underage drinking and driving. As a result, two laws were enacted in 1994 to control the issue of underage driving under the influence. They include Vehicle Code 23136 “California Zero Tolerance Law” and underage driving with a BAC of .05% or above (V.C 23140).
California Zero Tolerance Law ( V.C 23146)
The Zero Tolerance Law on DUI states that it is unlawful for anyone under the age of 21 to drive with a blood alcohol concentration (BAC) of 0.01% or above in their system after a preliminary alcohol screening test or after a field sobriety test. Alcohol content is not necessarily just found in alcoholic drinks, but it can also stem from cough syrups and topical mouth-numbing ointments. It is reasonable to be careful when consuming some of these things because even a minimal amount of alcohol can raise the BAC level to 0.01% leading to arrest.
The California Zero Tolerance Law requires every underage to take a PAS test even without their consent because it assumes they have already implied consent. The test is only optional for adults. Therefore, whenever you are pulled over on suspicion of driving under the influence, don’t resist the PAS test because it can result in severe consequences like the revocation of your driver’s license by the DMV.
After an arrest, those found in violation of V.C 23136 can be charged with more than one California DUI offense. For instance, you are under 21 and decide to go to a restaurant for a meal. After lunch, you take one or two beers then start driving back home. As you drive back home, you get pulled over, and after a preliminary alcohol screening test, you are found to have a BAC of 0.05%. The test results show that you will be facing two charges. One of the offenses is a minor driving with a BAC level of 0.05% or above under V.C 23140 and V.C 23136 zero tolerance DUI for a person below the age of 21.
Underage DUI with a BAC level of .05% or above (V.C2314O)
The underage DUI with a blood alcohol concentration of 0.05% or higher (V.C 23140) law states that it is illegal for a person under the age of 21 with a BAC level of .05% or more to drive a vehicle. You will be guilty of violating subdivision (a) if you are a minor and driving and the influence or affected by alcoholic beverages.
Violating the Vehicle Code 23136 and Vehicle Code 23140 can result in underage driver’s license suspension for one year.
DUI Implied Consent Laws in California
According to this law, every driver arrested for driving under the influence must take a chemical test to determine the level of intoxication in their system. The arrest will be legal if you are given a probable cause by the arresting officer. Adult drivers have the option of choosing between a blood or breath test. The officer must also explain the consequences of an arrest, which is called admonition.
The implied consent law applies mostly to teenagers who are stopped on suspicions of underage DUI offense. The law doesn’t require drivers who have been pulled over to take the chemical test without being arrested. But after the arrest, once you give your license to the arresting officer, consent is implied, and whether you’re a minor or adult, you are required to take a preliminary alcohol screening test (PAS). For underage drivers who are on DUI probation or are driving under the influence, a pre-arrest preliminary alcohol screening test is mandatory. Failure to comply can lead to one year of driver’s license suspension.
What are Field Sobriety Tests in Underage DUI Cases?
Keep in mind that after being pulled over, the officer cannot arrest you without probable cause. On the other hand, it will be unlawful to arrest you for a DUI without conducting a field sobriety test or PAS test. Officers use these tests to determine if you are impaired or not. The test is also optional because even a driver who is not intoxicated can fail the FST test. Poor performance in this physical and mental test shows that someone has drugs or alcohol in the blood system, which is not always the truth. Although some officers conduct the analysis, the results are not very reliable.
What are the Consequences of Refusing Post-Arrest and Mandatory Testing?
Failing to take a test for the first time after an arrest can lead to one year license suspension. A second refusal will double the period of suspension to two years. For the third refusal within ten years, the penalty is three years suspension. Any refusal to take a post-arrest test attracts a fine of $125. Note that refusal to take a test depends on the circumstances. At times refusing the test might save you or cause you more trouble.
Consequences of Violating the Zero Tolerance Law
If you are arrested driving below the age of 21 and with a BAC level of 0.01% or above, the penalties will include:
Suspension of a Driver’s License
You will have your driver’s license suspended for one year if you are a first time DUI arrestee within ten years. If you are a second-time DUI arrestee, you will be facing two years suspension and three-year underage driver’s license suspension if you are a third-time or subsequent DUI arrestee within ten years. In case, you are pulled over for suspicion of DUI, implied Consent laws of California makes it mandatory to take a PAS test. Failure to do so can see your license being suspended for one year.
Consequences or Penalties for Violation of VC 23140
When facing underage DUI charges, you are not going to spend time in jail. The penalties for these charges are not as severe as those of California Zero Tolerance Law. If you are convicted under VC 23140, you will:
Have a one-year license suspension if it’s your first offense.
Fine of $100 for first time arrestees, second-time arrestees $200 and third-time arrestees $300 depending on your previous one year record with the DMV.
Compulsory alcohol education lessons. For those above the age of 18, it is compulsory to take alcohol education lessons for a minimum of three months as a condition for having your driving privileges reinstated.
Underage DUI is not something to joke around. Some teenagers facing these charges plead guilty without understanding the consequences of their actions. They lose driving privileges, which ends up affecting their lives negatively. The penalties can restrict your freedom of movement, make you drop out of school, or even lose your job. Hiring a reasonable DUI attorney is essential in these cases for proper representation to avoid these penalties.
Receiving a Critical Need Restricted License
The state of California has zero tolerance policy on drivers below the age of 21 who are arrested for driving under the influence. Even a BAC level of .01% can lead to severe consequences. Some of these consequences include driver’s license suspension, which denies people freedom. Students who need to drive an ill family member to and fro to see a doctor can apply for a critical need restricted license. Remember the California DMV will consider other options like public transport before issuing this license. Therefore, it is vital that you give valid reasons for why you should receive the critical need driver’s permit.
To qualify as an applicant, you must be lawfully living in California, must have willingly submitted a blood or breath test to the arresting officer and you must fill the DS 694 form. Always be clear on the reasons for seeking the license, and reasons why drivers close to where you live are not willing to drive you. If you are seeking the permit because of a family member who cannot drive, the person must give facts about their condition. An employer or principal at your school should also provide points on why you should get the critical need restricted license.
After filling out this form, the next thing is to deliver it to the DMV field office and fill out the remaining sections then pay $100 as a reissue fee. The last step is filing the SR-22, which is the California Insurance Proof Certificate. The SR-22 form must be filled online before the critical need restricted license is issued or before the license is reinstated.
Penalties for Standard DUI Conviction Under V.C 23152(a) & (b)
Violating Vehicle Code 23152 is considered a misdemeanor offense and is punishable with: driver’s license suspension, three to five-year probation, up to $1000 fine, a maximum of six months in jail and compulsory enrollment in an alcohol education program.
The Underage Drunk Driver Visitation Program can also be used as a penalty for a minor DUI charge in California. The program assumes that the young driver did not know the penalties for driving under the influence, aside from the fact that it is unlawful. Also, it implies that:
Minors who take drugs or alcohol are likely to become addicted when they become adults.
That being sentenced for a DUI offense at an early age is a signal of bad decisions in the long run on the issue of drinking and driving.
The program is meant to show young people the effects or dangers of DUI. Youths in this program are taken to the emergency room trauma centers where they are shown patients who are in life support, disabled or in the mortuary because of drunk driving. After young DUI convicts are taught all these things, the program ends with them having understood the dangers of driving under the influence apart from the DUI conviction penalties.
College Students with DUI Convictions
After an underage in the university or college gets a DUI, he or she is likely to face further disciplinary proceedings from the university disciplinary board. Whether you were driving under the influence in the school compound or not, some disciplinary action will be taken against you. For students under a scholarship program, they might lose the scholarship money. Other sanctions that might be imposed on students convicted of DUI include suspension, probation, mandatory alcohol education classes, and dismissal from university or college housing.
Even after facing all the DUI penalties, students will continue to suffer the consequences because they must list the DUI on their college or university application. If a DUI appears on your request, it reduces the chances of being admitted to these institutions.
Underage drivers with a DUI don’t suffer the consequences only when making a college application when applying for car insurance with a record of DUI, SR-22 certificate is mandatory which indicates financial responsibility to be covered by the insurer. A minor who has a DUI will pay premiums that are two or three times more than those being paid by drivers with no DUI conviction record. Some vehicle insurance firms will not renew policies for people convicted of underage DUI charges.
What the Prosecutor Must Prove in Underage Driving Under the Influence Offenses
To be convicted with underage DUI charges under Vehicle Code 23136, the prosecution must prove beyond a reasonable doubt that:
The car was in motion when you were driving
Your BAC level was 0.01% or higher
That at the time, you were below the age of 21
The elements of the defendant driving a vehicle and being under the age of 21 are the same for Vehicle Code 23140. The only difference is that the BAC level should be 0.05% and above in V.C 23140.
For those who violate Vehicle Code 23152, the age of the defendant doesn’t matter, and the BAC level should be 0.08% and above. The prevalent aspect in all these cases is that the prosecution must prove you drove the vehicle or it was in motion.
Possession of Alcohol or Alcoholic Beverages
The prosecution, at some point, can build a case based on underage possession of alcoholic beverages or drinks. A person will face these charges under Vehicle Code 23224. You will be convicted under this if the prosecution proves beyond a reasonable doubt that you:
Are below 21 years
Had alcohol in the car
The container with alcohol was opened and was not full
Were not with a specified adult like a parent or lawful guardian at the time of the arrest
Were not transporting the alcohol to an employer who is a licensed liquor dealer
Were not getting rid of the alcohol under an order given by your parent or guardian
Defenses for Violating Underage DUI with a BAC of 0.05%
The vehicle was not in motion
You can fight these charges by arguing that you weren’t driving at the time of the arrest. It is unlawful for someone to be arrested for a DUI if they were sleeping in the car while under intoxication.
You weren't drunk
It is also legal to argue that you were not drunk at the time of the arrest. Your lawyer can prove that you were not drunk by using an expert witness to demonstrate that the chemical testing equipment had errors. That way, you can persuade the court or even the driver safety officer that it is essential to doubt that the BAC level was 0.01% or above. If the results can be reasonably challenged, then the evidence from the results will not hold in the hearing.
Errors in the test
Errors in the defendant DUI breath test can also act as a defense. V.C 23140 makes it mandatory for underage persons driving under the influence to take a test even without their consent. A reasonable DUI attorney can help argue that the Breathalyzer was not properly calibrated at the time of testing, and the machine was not used by a trained technician.
A 15-minute duration was not allowed for continuous observation before the test wasconducted.
A flawed chemical blood test
You can fight these charges by proving that the DUI blood test was flawed. Some of the evidence you can use to show this include saying the blood was not drawn correctly and adequately, your blood fermented, thus producing its alcohol and errors in documenting.
Rising alcohol levels at the time of the arrest
An expert witness can assist you in arguing that the blood alcohol concentration levels were still rising when the chemical test was being conducted on your blood. It shows that at the time you were driving, your BAC level was not 0.05%, but due to rising blood alcohol, the scales showed 0.05% or above. However, this will hold if you can determine a timeline to show that thirty minutes were not over after you had the last drink before being arrested.
Alcohol remains in your mouth
Alcohol remains on your mouth after consuming an alcoholic beverage that can contaminate the breath sample. The residue in the mouth can be read by the testing equipment, which means your BAC levels might appear to be 0.05% or above, which is erroneous. The argument will hold if you had used a mouthwash with an absolute alcohol concentration if you have diabetes, or GERD, if you had a paleo diet that day, or if the time between you consuming the alcoholic drink and the time or breath testing was not enough for you to be drunk.
Another defense is a failure by the arresting officer to follow the right procedure of arrests, which includes advising you on your rights. It is possible to fight the charges by arguing that the arresting officer didn’t warn you about the consequences of failing to take a drug test or giving clear instructions during field sobriety tests.
Unlawful traffic stop
If the defendant was stopped, arrested, or detained unlawfully, a chemical test is not permitted under this Vehicle Code. The arresting officer must have a reasonable suspicion; otherwise, the case will be deemed to lack probable cause. Unless the officer suspects you are intoxicated or underage, you shouldn’t be stopped. For example, if the reason for being stopped was driving at wee hours, then the case will be dismissed.
Challenging DMV License Suspension Under California V.C 23136
Under this Vehicle Code, you can stop your driving privileges from being suspended through requesting a DMV hearing within ten days after the arrest. The suspension will be pushed to a further date until your case is heard and determined by the driver safety officer from the DMV. For underage cases, the hearing can be conducted over the phone or in some exceptional cases face to face.
The hearing helps determine if you were driving, illegally detained, whether you failed to take a chemical test or if your BAC level was 0.01% or higher after the test. If your attorney can prove that you were not driving and you were unlawfully detained, then the charges against you are going to be dropped.
When the Suspension is Over, Will the License be Reinstated Automatically?
The answer to the question is no. When the period of suspension expires, you will meet certain conditions just like adult drivers before the DMV reinstate your license; otherwise, it won’t be restored. One of the terms is making a payment of $100 as a reinstatement fee plus providing an SR-22 form as evidence of insurance from your insurer. Getting help from a lawyer can make things easier.
Find a San Jose DUI Attorney Near Me
Facing Underage DUI charges is not something one should take lightly. The consequences of being convicted for these charges are very severe, including lack of freedom to drive and missing opportunities in college and job applications. Therefore, it will be wise to speak to one of our attorneys at the San Jose DUI Attorney by calling 408-777-6630. The phone consultations are always free and we will help you understand the underage DUI charge you are facing. Call today!