We see many clients under 21 years old that are stopped and detained and eventually arrested for driving under the influence. They are not legally supposed to be drinking at all and there are a number of extenuating circumstances and a lot of various factors that come into play when dealing with somebody who is under 21.
It’s not unusual for people who are under 21 to have something to drink. In today’s society, it’s commonplace to have kids in high school start drinking. When they start driving at 16 or 18 years old they do, from time to time, have something to drink and then drive. It’s a very social activity for a lot of 18 to 20 year olds to visit with friends and have something to drink or maybe partake in some other substances as well.
Different Laws Govern Drivers under the Age of 21 Who Are Stopped for Impaired Driving
There are special laws that control or govern what would happen to somebody if they are stopped and arrested for driving under the influence or driving with any alcohol in their system. It’s important to know when dealing with someone who is under 21 years old that there are different levels, different standards for that particular person.
Most of the time when we are dealing with driving under the influence, we are talking about somebody who is impaired for purposes of driving, driving with a blood alcohol level of 0.08 or above.
Drivers under the Age of 21 Are Subject to a Lower Blood Alcohol Limit than the National Standard of 0.08
However, when we’re dealing with somebody who is under 21 the Department of Motor Vehicles set the standards. There is a vehicle code that’s actually an infraction 23136 of the California Vehicle Code that says that it is against the law for someone who is under 21 to drink and drive with a 0.01% of blood alcohol content.
Limit of 0.01: Any Detectable Amount of Alcohol Is an Infraction for Drivers under the Age of 21; Drivers Can Be Subject a Year-Long License Suspension
Basically, any detectable amount of alcohol in their system would be illegal. A violation of code 23136 is an infraction so, as such, it does not carry with it a jury trial or criminal charges like a regular DUI. But it can have collateral consequences. If a driver is found guilty or the Department of Motor Vehicles has an administrative hearing on that code section, it can result in a license suspension of one year.
Any Type of Alcohol-Related Conviction or Administrative Action by the DMV Will Result in the Year-Long Suspension
Any alcohol-related conviction or administrative action by the Department of Motor Vehicles will result in a one year hard suspension, which means no driving at all if the person is under 21. The charge could be a result of a drunk in public or it could be driving with a 0.01% of alcohol.
Of course, if there is a refusal then things will get worse both in court and at the Department of Motor Vehicles. With an under 21 license suspension you do have a right to a hearing to contest the allegations and fight to save the driver’s license. If you are not successful and the license is suspended there are additional courses of action that you could take to try to get a critical mid license or to appeal the Department’s decision.
The Department of Motor Vehicles Does Not Need to Prove Alcohol Consumption by the Driver beyond a Reasonable Doubt in Order to Suspend the License
When dealing with someone who is under 21, the Department of Motor Vehicles will need to prove that there was alcohol in the system or that they’re impaired by alcohol and that that person drove. They don’t need to prove this beyond a reasonable doubt like a court would—but they do need to prove it by propounded evidence.
It Is Important Drivers under 21 to Retain an Attorney for Representation at the DMV Administrative Hearing to Contest the Suspension
A driver, which will be called the respondent by the Department of Motor Vehicles, would be able to contest the evidence and the facts that the department is trying to use. The respondent would also have the right to bring their own witnesses and their own evidence to attempt to prove that they were not driving, that they were not impaired by alcohol or that they did not have a 0.01% blood level. I have had much success in the past with these arguments in stopping DMV from suspending a license.
Taking Cold Medications Can Result in the Trace 0.01 Amount of Alcohol in the Driver’s System
With the 0.01 blood alcohol level it’s important to note that this can come about by, of course, drinking alcohol such as beer, wine or liquor, but there are other reasons why someone may have a 0.01 blood alcohol level. The reasons could include taking medication. Some cold medications may have alcohol in it and the person may not know that they’re actually consuming alcohol but could end up having the 0.01 blood alcohol content.
There Are Other Factors That Can Produce False Positive Readings on Breathalyzer Devices
When an underage-21 driver is using any chemical testing machine, there are also other factors that can give false readings on a machine. That could be a preliminary alcohol screening device or just a breath testing instrument that would typically be used in a DUI.
Even if you have a positive reading of a 0.01 or more in the field on a machine that may not have the same standards and safeguards the Department of Motor Vehicles will attempt to utilize to suspend the license for a year. Of course if all that’s used is a handheld machine out in the field, there are a lot more defenses and a lot more angles on which to attack those machines and those readings.
Drivers under the Age of 21 Can Also Face Criminal Charges if Their BAC is 0.05 or Above
Not only can the DMV get involved with somebody who is under 21 but somebody who is under 21 can be charged by a district attorney or a city attorney in a criminal matter in court. I’ll clarify that it’s not a full-blown criminal matter like a regular DUI, but the California Vehicle Code 23140 provides that a person can be punished for driving with a 0.05 or above because that is an infraction as well.
Drivers under 21 with a BAC of 0.05 Would Be Charged with an Infraction and Have a Hearing before a Judge
With an infraction of driving with a 0.05 or above you do not have a right to a jury trial and this is different from the Department of Motor Vehicles. The Department of Motor Vehicles was looking for a 0.01 or more and they would have an administrative action on that or an infraction. The 0.05 level or above is simply an infraction in court and must be proven beyond reasonable doubt.
At the Hearing, the Driver Is Allowed to Cross Examine Witnesses and Have Witnesses Testify on Their Behalf
This would be an argument to a judge and you would have the right to confront and cross examine the witnesses such as the police officer. You have the right to bring your own witnesses if you wanted to bring experts or other people that could testify regarding impairment or a consumption of alcohol or blood alcohol levels.
The Arresting Officer Is Required to Prove the Proper Protocol Was Followed in the Administration of the Chemical Test
To prove a 0.05 or above on the criminal 23140 charge, the prosecution, which is typically just the police officer, would have to prove that the defendant was driving and that at the time they were driving they had a blood alcohol level of 0.05. This would need to show they laid the proper foundation for the chemical test, not just a screening test like we could see in the DMV hearing but an actual proper foundation in accordance with Title 17 of the California Code of Regulations.
Title 17 of the California Code of Regulations lays out the standards by which breath testing instruments should be maintained, calibrated, checked for accuracy and how they should be used. If somebody is found guilty of driving with a 0.05 or above in court that in itself would not trigger anything more than fines and fees to the court.
But if the Department of Motor Vehicles finds out about it they can use that alcohol conviction to trigger their own suspension. We need to look not only to an administrative hearing at a 0.01 or an infraction at a 0.01 that can trigger a one year driver’s license suspension but also the 0.05 hearing. The 0.05 action in court can also trigger a suspension with the Department of Motor Vehicles.
Drivers under the Age of 21 with a BAC of 0.08 or above Face the Same DUI Charge That Adult Drivers Face
Additionally, for somebody who is under the age of 21, they can also be charged with 23152 which is the regular DUI charge: driving while under the influence. They can be charged driving under the influence of alcohol or drugs or a combination of both as well as driving under the influence with a 0.08 or above.
Individuals Charged with a First Offense DUI Could Be Facing a 6 Month Jail Sentence
This would be the same type of DUI charge that someone over 21 would be charged with. If somebody does have a 0.08 or above and they are under 21 they could be charged with this crime as well and we would be looking at the full-blown DUI consequences. Or, they could be at least facing those possibilities along with the right to a jury trial. This is because on a regular DUI an individual could be looking at up to six months in county jail even on a first time offense.
The DUI Charge Can Also Be Subject to Enhancements and an Upgrade to a Felony Level Charge
When you look at the under 21 charge, which is typically people that are 18 to 21 years old, they are either facing a DMV hearing at 0.01 level, an infraction trial at a 0.05 or a possible jury trial with a 0.08 or above. In addition, there are enhancements such as these: a minor passenger in the car that is under 14 years old, a refusal allegation, as well as if there is an accident.
If anybody is hurt as a result of an accident and there are injuries, there would be enhancements and possibly additional charges that could be filed. If there is a DUI with injury it could be charged as a felony even for somebody who is 18 years old. There are a lot of various consequences that somebody who is under 21 could face when it comes to a DUI in Los Angeles.
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