Justia Lawyer Rating
Super Lawyers
American Institute Of Criminal Law Attorneys

Underage DUI With BAC of .01

Most people are aware that driving under the influence of drugs or alcohol in California is illegal. But, not everyone is aware that California has two separate statutes that apply limits to drivers under the age of 21 with alcohol in their systems.

California Vehicle Code § 23140 outlaws minors from operating a vehicle with a Blood Alcohol Concentration of .05 or more. California has an even stricter “zero tolerance” law that outlaws minors operating a vehicle with a BAC of .01 or more. Underage DUI with a BAC of .01 or greater is technically not a criminal offense; the only potential penalty you face under California Vehicle Code §23136 is a suspension of your driving privileges. However, a conviction is still a serious thing that can haunt you for years.

Hiring an experienced California DUI defense attorney to defend you is an important first step. If you have been charged with a violation of California Vehicle Code § 23136 in L.A. County, William Kroger Attorney at Law is ready to help.

Underage DUI With a BAC of .01 or Greater in California

According to the California Vehicle Code, a violation of Section 23136 requires that:

  • You were under 21 years of age;
  • Consumed an alcoholic beverage;
  • You registered a BAC of .01 or more on a breathalyzer OR preliminary alcohol screening test; and
  • You were operating a vehicle.

A result of .01 is low enough that even small amounts of alcohol can break the threshold. A result of .01 or more can be caused by more than just alcoholic drinks as well. Prescription cough syrups and some homeopathic medicines or even mouth-wash can raise your BAC above .01 easily.

California Preliminary Alcohol Screening Tests

When adults are charged with driving under the influence, the prosecutor relies on breath tests administered at police stations on large “breathalyzer” machines. Officers also typically request drivers under suspicion of driving under the influence to submit to a preliminary alcohol screening (PAS) during the traffic stop. These PAS devices are less accurate than the already-suspect breathalyzer, and there are no legal repercussions for adults to simply refuse to submit to a PAS test. The same cannot be said for minors.

Unlike in criminal trials, the results of a PAS screening may be used against at your hearing. And unlike adults, minors are presumed to have given their consent to a PAS test if an officer reasonably suspects drinking and driving. According to California Vehicle Code § 23136:

Any person under the age of 21 years who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person, if lawfully detained…

You Can be Charged With Multiple DUI Offenses in Los Angeles

California Law typically prevents you from being charged with multiple DUI-offenses stemming from the same incident. However, since a violation of California Vehicle Code § 23136 is a civil issue, you could potentially be charged with underage DUI in addition to another criminal charge. Consider the following example:

Dave is 17. He is at a friend's California home where he smokes marijuana and has a sip of beer. Shortly after, Dave decides to drive himself home despite feeling lightheaded. On his way home Dave rolls through a stop sign in front of a local police officer. The officer pulls Dave over for the traffic sign violation and smell beer and marijuana on Dave.

The officer asks Dave if he drank or smoked anything tonight, and Dave admits that he has. Dave then submits to a PAS breath test where he registers a .02. The officer, believing Dave is acting erratically due to a combination of alcohol and marijuana, charges Dave with both DUI drugs and minor DUI pursuant to California Vehicle Code § 23136.

Potential Penalties for Underage DUI in California

Because underage DUI isn't a criminal offense, there is no risk of jail time. The penalty for violating Section 23136 is a suspension or revocation of your driver's license through the California DMV. You risk a suspension of your driver's license for one year if you are unable to successfully appeal your suspension.

If you don't have a driver's license yet at the time of the stop, the State of California can extend the time you must wait to get a license by a year. Law enforcement officers are also required to inform you that a refusal to take a PAS breath test will also result in an automatic suspension of your driver's license for one to three years.

The Status of Your California Driver's License

If the officer that stopped you under suspicion of underage DUI determines that you are in violation of the statute, he will confiscate your physical driver's license and issue you a temporary license good for 30 days. This license is intended to last you until your formal suspension, if any, takes effect. if you are found in violation by the DMV, you will lose the right to drive for a year.

Fighting a License Suspension

Unlike in a criminal case, you won't be arrested or given a citation with a court date attached. In fact, you have to be proactive to avoid a license suspension. You have 10 days from the date of your arrest to request a hearing on your license suspension from the Department of Motor Vehicles. If you timely request a hearing on your suspension, you will have the opportunity to fight the suspension at the administrative hearing. Your temporary driver's license will stay in effect until your administrative hearing is held.

Much like in a criminal case, you can hire an attorney to represent you at the hearing. Given that these hearings often function like miniature trials, it is highly recommended to hire legal counsel that has experienced in DUI defense as well as with administrative hearings. Many underage DUI hearings take place over the phone, but you can request an in-person hearing.

During the hearing, an attorney for the state will attempt to prove that you were:

  • There was Probable Cause for the stop
  • There was a lawful arrest
  • That you refused a PAS test or that your BAC test registered .01 or greater

If your attorney is successful, your license will be reinstated and you will face no other consequences. If you are ruled against, you will have to wait until the end of your suspension before you can re-apply for a driver's license.

Restricted Hardship Licenses

Unlike being over 21 and having your license suspended, in some cases, if you can prove a hardship exist, you will be able to get a restricted hardship license from the DMV. A restricted license allows you to drive:

  • To and from school;
  • To and from work;
  • To drive while working at a family business that provides part of the family income; or
  • To deal with a family illness.

Restricted hardship licenses are not available to you if you refused to take a PAS test or breathalyzer. The DMV will also refuse to grant a hardship if they believe you have other methods of transportation available that render driving unnecessary. Even if you are granted a restricted hardship license, you will be required to serve 30 days of your suspension before it can be used.

Potential Defenses at the Administrative Hearing

Much like a standard DUI charge, the two primary types of defenses at an underage DUI hearing are challenges to the traffic stop and challenges to the chemical test.

For a stop to be legal, an officer must have probable cause that you have committed a traffic violation or other crime before stopping and detaining you. Likewise, the officer must also have reasonable suspicion to believe that you have consumed an alcoholic beverage in order to request you take a PAS test. If the DMV determines that either the stop or the test were unreasonable, your suspension will be lifted.

You may also prevail at your hearing if your defense attorney is able to successfully challenge the accuracy of the test. Whether you submitted to a PAS test or a breathalyzer, there are certain requirements to ensure these breath-testing devices are accurate. Even a slight error in calibrating the PAS device can lead to a false positive. If your defense attorney can show that either the equipment was not properly calibrated or the officer was not properly certified, the DMV will dismiss your suspension and reinstate your driver's license.

Hiring the Right Underage DUI Defense Attorney

If you or a loved one have been charged in L.A. County with underage DUI with a BAC of .01 or above, you have a short window to hire an attorney and request a hearing. While 10 days may sound like plenty of time, your attorney will want to formally request a hearing with time to spare so that there is no risk of missing the deadline.

William Kroger is an experienced criminal defense attorney with years of experience defending those accused of DUI in court and in DMV hearings. He understands how important your ability to drive is in your day-to-day life, and is ready to fight for you. Contact William Kroger Attorney at Law today for your free consultation.

Client Reviews

"I would highly recommend Mr. Kroger for anyone seeking help in a drug case. He was very helpful at putting me at ease and took care of everything for me in court." Paul
"My first time using an attorney Bill Kroger took care if my issue that could have turned into something much worse in no time. The best." Stephen W
Bill and his team have helped my business tremendously. Friendly and easy to work with. Highly recommend! Ammar