In California, drivers must submit to an alcohol test when they are stopped at a DUI checkpoint. Penalties for driving under the influence differ according to drivers’ ages. For a driver below the age of 21, the consequences can be serious due to the stringent laws for underage DUIs. You should hire an attorney once you are arrested for underage DUI to help you achieve the best results. Contact us at The Los Angeles Criminal Defense Attorney for a detailed review of your case and identifying the best defense strategies.
California Laws for Underage DUI
Several laws can be used to charge anyone under 21 with underage DUI. These laws are meant to control underage DUIs and avoid the possible consequences of driving while under the influence. Here is a closer look at these California laws.
California Vehicle Code 23136: The Zero Tolerance Law
Under Vehicle Code 23136, it is illegal for anyone below 21 to drive with a detectable amount of alcohol in their system. Ideally, a detectable amount of alcohol includes a BAC of 0.01% or higher. This implies a zero-tolerance of underage people who drink and drive hence the name Zero Tolerance Law.
This statute does not determine whether you are under the influence based on your mental impairment. Therefore, taking non-alcoholic beverages such as cough syrup, tropical mount ointment, and homeopathic medicine can raise your BAC to 0.01% leading to charges under this statute.
California Vehicle Code 23140: BAC of 0.05% or Higher
Under California Vehicle Code 23140, it is illegal for anyone under 21 years to drive with a blood alcohol content(BAC) of 0.05% or higher. Under this statute, the defendant can submit to an alcohol test through a DUI breath test or a DUI blood test.
California Vehicle Code 23152: BAC of 0.08% or Higher
California Vehicle Code 23152 is referred to as the “standard” DUI law. Under this law, it is illegal for anyone to drive a BAC level of 0.08% or higher. Under this statute, a driver with a BAC of 0.08% or higher is assumed to be impaired.
California Vehicle Code 23152(f): Driving Under the Influence of Drugs
Under California Vehicle Code 23152(f), it is illegal to drive while under the influence of drugs. The drugs can be illicit or prescribed as long as it impairs the person’s driving ability. Some of the illegal drugs that can impair a driver include heroin, cocaine, methamphetamine, LSD, and ecstasy. Prescription drugs include Vicodin, Ambien, OxyContin, and Oxycodone. It also includes over-the-counter medications such as sleeping pills, allergy drugs such as antihistamine, and cold medicine.
California Vehicle Code 23153: DUI Causing Injury
California Vehicle Code 23153 defines driving under the influence and causing bodily injury to another person. An underage might be prosecuted through this statute once he or she causes bodily injury to another person.
Penal Code 191.5: Vehicular Manslaughter while Intoxicated
Another non-specific law that can be used to prosecute an underage for DUI is Penal Code 191.5. Under this statute, vehicular manslaughter while intoxicated occurs when a defendant drives while under the influence and engage in negligent behaviors that lead to another person’s death.
If the prosecutor proves that you acted with gross negligence, then you will likely be prosecuted with a more serious offense of gross vehicular manslaughter while intoxicated.
Your prosecutor should prove certain elements while charging you for underage DUI. These aspects are referred to as elements of the crime and are as follows:
You drove a motor vehicle
You were under the influence of alcohol while driving
These two elements of crime might seem straightforward, but they require further explanation. Here is a closer look at the common terms used in the description.
The Defendant was Driving
A DUI officer should prove that there were some vehicle movements to prosecute you under any of the Underage DUI laws. The court does not necessarily need direct evidence to prove that you were driving but can also depend on circumstantial evidence. Circumstantial evidence is any evidence that does not directly point out that the defendant is guilty but can infer that he or she is guilty based on the surrounding circumstances.
An example of circumstantial evidence includes a situation where a defendant is found asleep in a vehicle obstructing the roadway. Further, the defendant is the only person inside the car, and the car is not in a place that is usually parked. Since there is evidence suggesting that the vehicle was driven into the location, the jury would infer that the person inside it drove it, hence the DUI conviction.
Under the Influence
When defining under the influence, your mental or physical abilities are impaired to the degree that you cannot drive with the due caution or characteristics that an ordinary prudence driver maintains.
Under the influence implies that your system was impaired, and your judgment is not similar to a sober person. However, how you drive even when you are under the influence cannot conclusively mean that this is correct. This would be a factor that the jury should look into while deciding whether you were DUI.
When the prosecutor is proving that you were driving under the influence, there are specific aspects that he or she must prove. These aspects are usually determined from the investigation process until you undertake the necessary tests.
Let’s have a closer at some of the aspects that would help the prosecutor prove that you are guilty of DUI.
Testimony from the Arresting Officer
The arresting officer can typically testify that you were under the influence if you exhibited certain behaviors during your arrest. These behaviors are as follows:
Unable to drive with the caution that a sober person would maintain
Swerving or weaving out of the road
Other signs of intoxication that the officer would use to testify that you were under the influence. These includes:
Red and watery eyes
The odor of alcohol emitting from your breath
Besides the officer’s observation of your behaviors, they should subject you to a field sobriety test. If you fail to perform these tests, this might indicate that you were intoxicated.
Please note that the evidence acquired from the field sobriety tests or the officer’s testimony is considered objective. Therefore, a chemical test must be done to prove that your BAC was beyond the recommended level.
Breath and Blood Test
Breath and blood tests usually provide concrete evidence that your BAC level was beyond the recommended level. As stated earlier, a defendant can choose to take a breath or a blood test.
In a breath test, law enforcement officers typically give two breath tests in a DUI case. The first test is provided at the roadside in a DUI traffic stop and is referred to as preliminary alcohol screening (PAS). The second test is given at a sobriety checkpoint, mobile police unit, or a desktop device at the police station. A preliminary breath test is given using a hand-held device, which is usually a breathalyzer. Most drivers can decline the PAS, but anyone under the age of 21 must take it.
The second test is referred to as a post-arrest evidentiary DUI breath test. All drivers must take this test even after taking the preliminary breath test. However, they have a choice to take a breath or a blood test. The only exception includes:
A reasonable belief that the driver was driving under the influence of drugs, which requires a blood test
The underage driver was unable to blow the breathalyzer hard enough
The underage driver was unconscious
The driver needed medical care and was taken to a medical facility with no breath testing equipment available
A blood test is administered if the above-stated exception applies or when the driver freely agrees to take the blood test. Blood is drawn from the driver and tested whether it contains any alcohol beyond the recommended level.
Penalties for Underage DUI
The penalty that an underage would face depends on the law that the respective defendant has violated. Let’s have a look at the penalties for violating the statutes discussed above.
Penalty for Violating Vehicle Code 23136
It is not a crime to violate Vehicle Code 23136. However, an underage driver might have his or her driver’s license suspended. The length of the suspension is one year for a first violation. For subsequent offenses, the driver is at risk of two or three years of driver’s license suspension.
Penalties for Violating Vehicle Code 23140
Violating Vehicle Code 23140 is a California infraction. This means that it is a low-level crime similar to a parking ticket. Violating this statute does not lead to jail time, but other penalties such as the following apply:
A maximum fine of $100
Suspension of your driver’s license for one year if it is a first-time offense
Attendance to a mandatory alcohol education program for at least three months or more if the driver is at least eighteen years
Penalties for Vehicle Code 23152
Violating Vehicle Code 23152 is a California misdemeanor. If this is a first-time offender and the is no one injured, the potential penalties include:
Three to four years of summary probation
Suspension of the driver’s license for one year
A fine that ranges between $390 to $1,000
A maximum county jail sentence for six months
Penalties for Refusing a Breath Test
As described above, underage drivers must take a breath test. Therefore, refusing to submit or failing to complete the preliminary breath test or post-arrest test would lead to the driver’s license suspension for a minimum of one year.
The California Department of Motor Vehicle can revoke the license for two years or more if you have prior convictions for a chemical test refusal or a wet reckless under VC 23103.5.
Challenging The Drivers Suspension
Drivers can challenge a suspension that has been made on their license even when it’s a result of refusing to take a chemical test. To challenge the suspension, you need to request a suspension hearing from the California DMV.
A hearing from the California DMV is not automatic and must be done within ten days after being cited for refusing a chemical test. You can use a phone call to conduct the trial unless you are required to attend in person. You can hire an attorney to represent you in the suspension hearing.
If you win the hearing, your license suspension or revocation will be canceled. However, if you lose the trial, you have the chance to:
Appeal the decision made at the hearing
Request a restricted license unless the suspension was a result of refusing to take a chemical test
If the driver wins the DMV hearing, they can have the license reinstated by paying a $125 fee, filing an SR-22 form, and providing proof of financial responsibility for at least three years.
Underage drivers can seek a restricted license after losing in the DMV hearing. With the restricted driver’s license, the driver can drive to and from school or work if there are no other transportation means available.
Legal Defense for Underage DUI in California
The responsibility of your DUI attorney is to challenge the evidence presented by the prosecutor. This cannot be achieved without relevant legal defenses. Here is a closer look at the common legal arguments for underage DUI or DUI in general.
Defenses for Driving
In California, you cannot be prosecuted for DUI unless you were driving. As stated above, the DUI officer can imply that you were driving through circumstantial evidence. Therefore, if your attorney can point out that you were not driving, this would be a suitable legal defense that would help dismiss your case.
For instance, if the DUI officer implied that you were driving by finding you asleep in a parked vehicle, this does not prove that you were driving since you were not operating or in actual physical control of the car while intoxicated.
Challenging the Results from the Chemical Test
Several ways can be used to challenge the results acquired from the chemical test. The following is a detailed review of the possible ways that your attorney can utilize.
Falsely High Results due to Residue Alcohol in Your Mouth
Your attorney can argue that the results acquired from the breath test were false due to alcohol from your mouth. That’s why the DUI officer must allow fifteen observation minutes to ensure that you do not put anything such as mouthwash, drinks, and alcohol-based medicines in your mouth.
The DUI officer should also ensure that you do not regurgitate, burp or belch to avoid bringing alcohol from your stomach into your mouth. The accuracy of your DUI breath test relies on the measurement of air from your deep lung. Therefore, if you blew the breathalyzer with residue alcohol in your mouth, this would cause a falsely high BAC result, meaning that you could have registered a lower BAC.
Failure to Allow a 15-Minute Observation Period
As mentioned above, the DUI officer should allow fifteen minutes to observe a driver before a DUI breath test. Your attorney should question your arresting officer’s decision to ignore the fifteen-minute observation period and raise suspicion on the results from the breath test or the entire DUI investigation.
Non-Compliance with Title 17 Regulations on Chemical Testing
California Title 17 regulates how DUI chemical tests should be conducted. These requirements are as follows:
Take a 15-minute observation period after a DUI stoppage
Ensure proper training of the professional conducting the test
Use proper procedures while administering the test
Ensure that the testing equipment is regularly calibrated and maintained
Properly collecting, handling, and storing the blood
Therefore, if any of the above regulations were not observed, your attorney can challenge the chemical test results’ credibility.
It takes an average of 50 minutes for a person’s BAC to reach a peak level, although there are factors that can either reduce or increase the timeline. Therefore, if you are accused of having a BAC as high as 0.05%, you can argue that you had a rising BAC if you were arrested immediately after drinking only to be kept in waiting after your stoppage. These situations are common when there are many vehicles, and there are few breathalyzers at the sobriety checkpoint. You should provide concrete evidence proving that you were delayed before the chemical test was taken compared to the time that you were drinking.
Your Medical Condition Led to a Falsely High BAC
If you have an existing condition such as diabetes or hypoglycemia, you can successfully fight your DUI charges. Usually, our bodies depend on carbohydrates for their fuel. However, certain conditions such as diabetes, high-protein, and fasting can force the body to break down stored fats to fuel the body.
While the body is burning fat, toxic byproducts known as ketones are produced by the liver. This process is referred to as ketosis. Ketones have a chemical composition similar to isopropyl alcohol.
Some ketones are excreted in the breath and can lead to a falsely high BAC on a DUI breath test. They can also lead to symptoms similar to alcohol-based impairment, such as:
Lack or poor coordination
Challenge the DUI Officer’s Testimony
Sometimes a DUI officer might charge you with DUI based on your behavior during your arrest. However, the officer’s testimony would not truly reflect that you were DUI since your actions might indicate otherwise. Some of these observations include:
Alcohol smell on your breath
All the above-stated behaviors might indicate different conditions other than DUI. It is upon your attorney to build a strong defense to prove that the officer’s conclusion on your DUI was wrong. For instance, allergies, fatigue, and eye irritation can cause bloodshot eyes. These are usually mistaken for a high BAC.
Challenge the Field Sobriety Test Result
Other than the chemical test result, the prosecution’s evidence might include field sobriety test results. You and your attorney can challenge these results in your DUI defense strategies.
Field sobriety tests heavily rely on the arresting officer’s observation, which usually predicts an alcohol impairment of 91% most of the time. Your defense attorney can explain how your balance and coordination might be affected hence the false conclusion about your impairment. Some of these factors include:
Your natural physical coordination
Challenge the Officer’s Decision on Bad Driving
You can fight your DUI charges by challenging the DUI officer’s judgment of your driving. One of the things that officers focus on is the driver’s driving pattern to determine whether they were driving while drunk. DUI officers routinely testify that a defendant was driving in a manner consistent with someone under the influence of alcohol, often referred to as “patterns” during your arraignment.
An experienced attorney would rebut this evidence by arguing that sober people exhibit most of these patterns, and the driving patterns would not be a reliable DUI predictor. According to NHTSA, cues often exhibited from specific driving patterns such as weaving or speeding can only predict 35% of BAC.
Lack of Miranda Warnings
Police should generally give Miranda warnings before questioning a suspect under their custody. Therefore, if your arresting officer did not give you any Miranda warning leading to your incriminating statements, the comments might not be used against you.
Find an Underage DUI Attorney Near Me
If you or your loved one has been accused of underage DUI, you should seek a lawyer who can build strong legal defenses. A reliable attorney should have the legal experience and resources needed for your case. At the Los Angeles Criminal Defense Attorney, we offer top-notch legal services to anyone facing underage DUI charges or other related services. Our experienced attorneys will review your case and develop strong legal defenses to help achieve the best result. Contact us today at 310-564-2605 for and speak to our experts.