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Underage DUI With a BAC of .05

If you are operating a vehicle with a blood alcohol concentration (BAC) of .08 or above or are otherwise too impaired to drive, you can face arrest and jail time. However, there are additional restrictions on drivers under the age of 21. Because it is illegal for minors to drink or possess alcohol to begin with, the California Vehicle Code bars minors from driving with any alcohol in their system at all.

There are two different statutes that address underage drinking and driving in cases where there is alcohol present but not enough to qualify for a regular driving under the influence (DUI) charge. The first, California Vehicle Code §23136, bars minors from driving with a BAC above .01. Known as the ‘zero tolerance' statute, California Vehicle Code §23136 is not a criminal offense but can lead to the suspension of a minor's driver's license.

The second statute is California Vehicle Code § 23140. This section of the California Vehicle Code outlaws minors driving with a BAC of more than .05 but less than .08. While this technically overlaps with California Vehicle Code §23136, it carries a higher punishment.

While you are not at risk of jail time for a conviction California Vehicle Code § 23140, the consequences are still severe. You can face costly fines and the loss of your driving privileges. Your best chance at avoiding these consequences is by hiring an experienced DUI defense attorney. If you are facing a California Vehicle Code § 23140 violation in L.A. County, William Kroger Attorney at Law is ready to help.

Underage DUI With a BAC of .05 or Greater in California

Unlike a ‘zero tolerance' statute violation, a violation of California Vehicle Code § 23140 is an infraction. Infractions under California law are criminal offenses. This means that unlike a ‘zero tolerance' case that will be adjudicated before the DMV, a charge for underage DUI with a BAC of .05 or more will land you in the court system. According to the statute:

It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

The statute makes clear that you can be charged even if you don't take a chemical test. If the jury determines that you consumed an alcohol beverage before driving with a BAC of .05 or more, they can find you guilty. This is a subjective standard; it is up to your DUI defense attorney to show the jury that the State of California failed to prove your BAC was .05 or higher at the time you were driving.

How is Blood Alcohol Content Measured Under California Vehicle Code § 23140

Another way a violation of California Vehicle Code § 23140 differs from the ‘zero tolerance' statute is that the State of California will rely on a post-arrest breath or blood test to determine your BAC. This is a more thorough testing process than the roadside preliminary alcohol screening (PAS) devices used in ‘zero tolerance' cases.

Refusal of a breath or blood test in California will lead to a mandatory 1-year suspension of your driver's license.

Potential Penalties for Violation of California Vehicle Code § 23140

A charge of underage DUI with a BAC above .05 is considered an infraction under California law. An infraction is a criminal charge that is below misdemeanors in severity. They carry no jail time and a maximum fine of $250 in most cases. The most common infractions in California are speeding tickets.

If you are convicted of violating California Vehicle Code § 23140, the California DMV will suspend your driving privileges for 1 year. Additionally, you will face the following potential fines:

  • By a fine of one hundred dollars ($100).
  • For a second infraction occurring within one year of a prior infraction that resulted in a conviction, a fine of two hundred dollars ($200).
  • For a third or any subsequent infraction occurring within one year of two or more prior infractions that resulted in convictions, a fine of three hundred dollars ($300).

In addition, if you are at least 18 years of age or older, you will be required to complete a three-month alcohol education class. Finally, your vehicle may be impounded for up to five days if you have a prior conviction for DUI or for violating California Vehicle Code § 23140.

Potential Legal Defense Strategies

Despite the high volume of guilty pleas that occur in DUI cases, it is possible to win at trial. In some cases, a strong defense can even lead to the prosecutor dismissing the charge entirely. These outcomes are less common and depend on the circumstances of your case. That being said, you improve your chances of a positive outcome greatly by hiring an experienced DUI defense attorney to represent you.

Your attorney will review your case and explore every piece of evidence to determine if you have any valid defenses to the underage DUI charge. There are typically two primary types of defenses in DUI cases: challenges to the traffic stop and challenges to the chemical test. It's possible your attorney could raise one or both of these types of defenses at trial.

Challenges to the Stop

The police cannot simply pull you over any time they feel like it. The officers must have a reasonable suspicion that you have broken a traffic law or other crime before they turn on their police lights and attempt to pull you over.

A traffic stop that occurs without reasonable suspicion violates your constitutional rights and is illegal. This is important because any evidence collected from an illegal traffic stop can be excluded from trial by your attorney. This can include incriminating statements you made, results of your chemical tests, and even evidence found within the car. These circumstances are where an attorney's experience and expertise can really shine.

Challenges to the Test

Even if the traffic stop that resulted in your arrest was legal, it's possible that the chemical test was conducted in such a way that the result is unreliable. There are rules for the collection and testing of blood or breath samples. If these rules aren't followed, your Dui defense attorney may be able to have the results of the test excluded from your trial.

Breath Test Issues

There are two potential issues that come up frequently in underage DUI cases that involved a breath test. The first is that if the operator of the breathalyzer is not properly certified, the results cannot be relied on in court. Without proper certification, an operator cannot truthfully attest that the test results are accurate.

The second issue relates to the machine itself. Breathalyzers are very sensitive equipment that rely on finely-tuned sensors to determine the amount of alcohol on your breath. If these machines are not properly calibrated before use they can lead to false results including false positives. If that is the case with the breathalyzer you used, your attorney may be able to have those results thrown out.

Blood Test Issues

While blood tests are typically more accurate than breath tests, there are still issues that can come up that lead to blood test results being unreliable. For instance, certain preservatives and anti-coagulates must be added to a blood sample shortly after it is taken. Without the preservatives, your blood sample will start to ferment. This process naturally creates alcohol and carries a serious threat of a false positive test.

Once the sample is taken, it has to be analyzed by a laboratory. These samples are typically shipped to state-run labs, which means many sets of hands touch a blood sample during the process. To ensure the integrity of these samples, the state is required to keep a chain of custody that reflects everyone that interacted with the sample. If the prosecutor in your case can't account for the entire chain of custody from the point of arrest to the testing, your attorney may be able to have the results of the blood test excluded from trial.

Finally, the blood testing equipment and lab personnel must also have proper accreditation. Much like with a breathalyzer, the tools these lab workers use must be properly calibrated and certified as accurate. A failure to properly maintain their equipment could lead to many acquittals on alcohol-related charges.

Hiring an Underage DUI Defense Attorney You can Trust

If you or a loved one has been charged with underage DUI with a BAC above .05 in L.A. County, William Kroger Attorney at Law is ready to help. William Kroger is an experienced DUI defense attorney that has for years helped clients obtain the best possible outcome in their cases. To discuss your case, contact William Kroger Attorney at Law for your free consultation.

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