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Underage DUI with BAC of .05%: What is the law and punishment?

California Vehicle Code 23140 VC is an infraction.  California has a "zero tolerance" law for underage drinking that makes it illegal for a person under the age of 21 to drive with any detectable amount of alcohol.  If an underage driver's blood alcohol concentration (BAC) is between .05 and .07 percent, they may be cited or arrested an VC 23140.

What Must Be Proven in an Underage Drinking and Driving Case?

In order to be convicted of VC23140, the following must be proven:

     1.  You drove a motor vehicle;
     2.  You were under the age of 21;
     3.  You had BAC of .05 to .07 percent measured by a PAS or chemical test.​

In the United States justice system, a defendant is presumed innocent until proven guilty.  The prosecutor has the burden of proving guilt beyond a reasonable doubt for the charge.

What are the penalties for Underage Drinking and Driving

VC23140 is an infraction with severe consequences for your driving privileges.  Your driver's license will be taken and you will be issued a 30-day temporary license. 

Your license will be suspended or if you do not have one than you will be delayed in getting one for a minimum of one-year at the end of the 30-days unless you request an Admin Per Se Hearing with the DMV within 10 days of being issued the citation or arrest.  If you refuse to take a chemical test, your license may be suspended for 1 to 3 years.

​If requested, your license will not be suspended until you are notified of the results of the hearing which can take several months.  

In addition, the DMV will be required to attend the 3 month DUI class AB541 at a cost of $400 to $500.  A fine of $100 for a first offense will be required.

What are the defenses for Underage Drinking and Driving

The Detention was an Illegal Seizure under the 4th Amendment

When Law Enforcement pull you over, they have temporarily detained you under the 4th Amendment of the United States Constitution.  In order for this detention to be considered "legal", the officer must have had at least reasonable suspicion, meaning at least some fact or information that suggests a law has or will be broken.  Typically in a vehicle stop, the Officer claims to have seen a traffic violation including speeding, crossing lanes without turning signal, or an accident occurred.  The Prosecutor has the burden of proving the Officer had reasonable suspicion.  An experienced attorney will request video and audio recordings from the arresting Officer to challenge the reason for the stop.  

The Arrest was made without Probable Cause

Under the 4th Amendment of the United States Constitution, an Officer must have probable cause for crime they are arresting you for.  An Officer will establish probable cause for a DUI several ways.  He will record smells of alcohol on your breath or coming from your vehicle, he will note your performance on Field Sobriety Tests (FST), and the results from the preliminary alcohol screening test (PAS).  Each fact may be challenged in court.  The presence of alcohol odor has no bearing on whether your impaired or your BAC.  Officer routinely set drivers up for failure by administering confusing and complicated tests requiring extreme balance and precision without considering your medical and physical condition while being performed on uneven terrain with debris.  PAS devices attempt to estimate your BAC by using a mathematical to convert alcohol concentration in your lungs to estimate BAC.  This makes PAS results inherently less reliable allowing for challenge in court.

The chemical test results are invalid

Underage drinking and driving can involve extremely low levels of BAC.  This may leave open avenues to challenge the results in the case.  The Preliminary Alcohol Screening Test (PAS) must be calibrated and stored properly.  Calibration records may show that a regular calibration date was missed.  Chemical tests are similarly open to challenge.  In addition, even if the results appear to be accurate they may be affected by recent use of mouth wash, acid reflex disease, or other medical conditions the officer was not aware of.

Bottom line, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results.  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

VC 23152 Driving under the influence

VC23513 Driving under the influence with injury

​Admin Per Se DMV Hearing for under age drinking and driving

Admin Per Se DMV Hearing for DUI

Field Sobriety Test

Implied Consent Law


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If you or a loved one has been charged with a crime, call the Law Offices of Steven McNicholl at (951) 405-0990. We have the skill and experience in San Bernardino County to protect your rights and get the best results in your case.

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