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Matthew Ruff, 21 Years Experience: (310) 527-4100

What is the difference between DUI and underage drinking and driving laws? Primarily everyone is considered "under the influence" regardless of age if they do not possess the mental or physical faculties to drive with the caution characteristic of a sober person and if this is the case they can be charged with driving under the influence(VC23152) regardless of age. However, persons under 21 have special rules unique to them (1.) They can be charged with an infraction VC23140 if between .05-.08 and are not "impaired". (2). They can be charged with an infraction VC23136 if they are between .01-.05 and are not impaired. These statutes prohibit conduct of anyone under the age of 21. Lastly, the officer may choose to simply write up the case as "administrative" zero tolerance and not issue a citation to appear in Court. In these cases the youth is facing sanction at the DMV only and no punishment by the Court.

How is the accuracy of the breath machines determined? Most underage drinking and driving investigations involve the use of a roadside portable machine called a "preliminary alcohol screener". If the driver is 20 or younger he or she is required to blow into the device if lawfully detained or risk loss of driving privileges. This machine is maintained by the police agency and it is required to be checked for accuracy every 10 days or less. The device must read an accurate result during the check or risk being pulled out of service. The records of these checks should be requested in any case. The manufacturer sets forth guidelines for maintenance that also must be adhered to in order for the results to be admitted as evidence in a prosecution against a minor.

Indeed, most states criminalize being under 21 and drinking while driving. This means that there is zero tolerance for drivers with .01 or more in there bloodstream. However, this does not mean that everyone cited for being a minor with alcohol on their breath is guilty of a crime. In California, If you are under the age of 21 and you have been arrested or issued a citation for Drunk Driving or an alcohol related driving offense then you will face a different set of standards at the DMV and in Court as compared to someone over 21. For starters, instead of the typical "legal Limit" of 0.08 % blood alcohol your "limit" as you might want to refer to it is 0.01%. Basically, the state licensing authority prohibits under 21 drivers to have any alcohol in your system while you are driving. This is sometimes referred to as the "zero tolerance" law. From a legal perspective that makes perfect sense inasmuch as you are not supposed to drink, be served or buy any alcohol until you are age 21 or over. That is not it however, because just like with people over 21, there are two separate processes that you must participate in. The DMV and the Criminal Court.

CASES OF THE MONTH

Matthew represented a youth in Redondo Beach for VC23140 which is driving with alcohol above .05%. Not long after being cited a DMV hearing was set and he showed that the breath machine was unreliable and the suspension was set aside and the license was restored.

Our law firm was retained to defend a 20 year old stopped along interstate in Los Angeles county for speeding. The young person was contacted by the CHP officer and asked to exit the car once alcohol was detected on his breath. Simple field sobriety tests were administered and accoding to the officer the client failed. He was asked to submit to a field breath test, called a PAS, and he complied, revealing a result of .06 and .07. He was issued a citation for VC23140 and his license was confiscated. Matthew set the case for trial and at the close of his questioning to the officer he moved to suppress the breath test for noncompliance with state rules, the judge agreed and the charges were dismissed.

Matthew Ruff can be reached Toll Free at 1-877-213-4453

If the officer arrested you for Vehicle Code 23152 the same law that applies to persons over 21 will apply to you, that is the .08% standard. However there are specific criminal laws that apply to persons under 21. If you are under age 18 at the time of the arrest or citation you will end up in the Juvenile Court in the County where you were stopped. Unfortunately, juveniles do not have a right to a jury trial, a judge will hear the evidence and decide your guilt or innocence. Persons over 18 but under 21 will appear in the same Court as individuals older than twenty one (Adult Court). If you are charged with 23152 (the regular DUI statute) then you will be allowed a jury trial because you are looking at jail time. If charged with 23140, this violation is an infraction and you will not be able to request a jury trial because no jail time is possible under 23140.

Overview of California Criminal Law on Under 21 DUI

There are essentially 3 CA Vehicle Code sections that govern the offense of under-age drinking and driving within the state. First, is the basic zero tolerance statute VC 23136 which prohibits anyone 20 or younger to drive with .01 or more in a motor vehicle. Second, is VC 23140 which makes it an infraction to drive with a .05 or more BAC if under twenty one years of age. Lastly, is VC23152 which makes it a misdemeanor to drive while impaired or have a .08 or more blood alcohol level at any age, including minors. The basic difference between a misdemeanor crime and an infraction is that the former carries jail time, an infraction cannot result in any imposition of a jail sentence. Because no jail can be given on an infraction, there is no right to a jury trial.

Let's talk more about VC 23140. The essence of the offense is that no one under 21 is permitted to drive with a a blood alcohol level of .05% or higher. This offense usually only results in a ticket being issued and the person is released without being "arrested" in the traditional sense or booked into jail. The unique thing about VC23140 is that the law permits the police officer to administer a portable breath testing device, PAS or "Preliminary Alcohol Screening" machine to ascertain the blood alcohol content of the driver. This differs greatly for those over 21 who have the right to refuse the PAS and must be given a different type of breath test called an "evidentiary test" or a blood test. If you are under 21 you have no such right. If you are underage and are detained for suspicion of driving after having consumed an alcoholic beverage and subsequently refuse to take a PAS test, your license will automatically be suspended for one year with no ability to apply for a hardship restricted license for any reason.

The vehicle Code 23140 offense carries a maximum punishment of a substantial fine, the consequence of having to complete a DUI school and a license suspension as well as 2 points on your driving record for 10 years.

Another charge associated with underage drinking and driving is that of Vehicle Code 23136. This offense is essentially an administrative violation that prohibits driving with a .01 or higher. The violation is considered an infraction as well, just like the 23140 charge with the major difference that if you are adjudicated guilty of this cahrge it carries no points on your DMV and does not require completion of a DUI school. It will however result in a one year potential license suspension from the DMV and carries the same insurance consequences as the alternative charge of 23140.

With regard to the DMV, after the citation or arrest, the driver will be issued a pink document called a notice of suspension, temporary license. A DMV hearing must be requested with 10 days or there will be no way to avoid a mandatory license suspension. DUI Attorney Matthew Ruff takes care of all the paperwork to save the drivers license thru the administrative process.

Enforcement of these under 21 alcohol related driving offenses are usually much more prominent in areas where young people congregate such as college towns and popular hangouts. For example, in San Luis Obispo, the police have a special task force for underage drinking violators, as does many areas of Los Angeles, Redondo Beach and Torrance.

The following is a recent case example of a DUI matter that Matthew handled for a client in the South Bay: The youg man was stopped at a DWI checkpoint and the police detected an odor of alcohol on his breath. The youngster was asked to perform various field sobriety tests and subsequently submitted to a handheld PAS test of his breath which revealed a .07/.08 blood alcohol level. A second test was given using a California Evidentiary test and it showed a BAC well above the legal limit for a person under 21. The parents, who lived in Palos Verdes, contacted Matthew and hired him to defend the minor. The attorney contacted the DMV and stopped the suspension of the license that follows an arrest for underage drunk driving. Next, the lawyer set the case for a Court trial in the Superior Court. At the Court proceeding Mr. Ruff cross-examined the arresting officer and established that the chemical testing procedures failed to meet the foundational legal requirements under CA law. Consequently, the Judge threw out the case and found the client NOT GUILTY of the under 21 DUI. Matthew then sought a set aside of the DMV action and made sure that the young person's record was cleared of any violation. The driver's license was returned by the Sacramento DMV shortly thereafter in early 2013.

Underage DUI Attorney Matthew Ruff has defended hundreds of under 21 alcohol related charges over the course of his career with excellent results. These charges can be successfully defended in Court and at the DMV. In fact Matthew has a success rate of well over 80 percent overall for under 21 alcohol related charges. Examples of legitimate defenses include failure of the officer to follow state regulations in the administration of the breath test, illegal stop, detention and arrest. Use of faulty equipment or improperly maintained breath devices, just to name a few. In one recent case, Matthew defended a college student on a VC23140 ticket in Los Angeles County. The police officer cited her after her car collided with another in a university parking lot and her breath test was a .07%. The lawyer fought the case and got the charges thrown out both in Court and at the DMV due to improprieties in the breath testing procedures.

If you have a son or daughter facing an underage DUI and are concerned about the consquences it will have on insurance, the drivers license or criminal record and would like a FREE consultation, call Matthew Ruff toll free at 1-877-213-4453.

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