Under 21 DUI

San Mateo DUI Lawyer-Michael Rehm (650) 293-9070

For those under 21, there are two specific DUI statutes that apply. They are both infractions, no criminal record attaches.

The first:

Vehicle Code 23136

PAS Persons Under 21: Preliminary Screening Device

23136. (a) Notwithstanding Sections 23152 and 23153, it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law.

(b) A person shall be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years, and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.

(c) (1) 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 for an alleged violation of subdivision (a).

(2) The testing shall be incidental to a lawful detention and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of subdivision (a).

(3) The person shall be told that his or her failure to submit to, or the failure to complete, a preliminary alcohol screening test or other chemical test as requested will result in the suspension or revocation of the person’s privilege to operate a motor vehicle for a period of one year to three years, as provided in Section 13353.1.

A couple of comments in regards to Vehicle Code 23136:

• A conviction for this offense does not require completion of the Alcohol Education Program.

• This section can be violated by the Preliminary Alcohol Screening (PAS) device alone. In other words, the breathalyzer on the side of the road is all of the evidence the prosecution need in regards to any chemical test.

• A conviction of this offense comes with a one year license suspension, although the minor could still receive a “critical need” driver’s license. See section on critical need restricted license’s for more information.

The second statute:

Vehicle Code 23140

23140. (a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

(b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.

(c) Notwithstanding any provision of law to the contrary, upon a finding that a person has violated this section, the clerk of the court shall prepare within 10 days after the finding and immediately forward to the department an abstract of the record of the court in which the finding is made. That abstract shall be a public record and available for public inspection in the same manner as other records reported under Section 1803.

Amended Sec. 32, Ch. 263, Stats. 2007. Effective January 1, 2008.

A couple of bullet points in regards to this statute:

• Conviction for VC 23140 does require completion of an Alcohol Education Program.

• This offense is an infraction.

• Any time the D.A is charging a VC 23140, attempts should be made to negotiate it down to the Vehicle Code 23136.

• For any minor charged with a regular DUI, an attempt should also be made for this charge, not just a Wet Reckless.

• This charge generally requires more than just the PAS, as opposed to the VC 23136 that only requires the PAS.

Contact Michael Rehm at (650) 293-9070 for a free, confidential consultation.

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