Underage DUI Lawyer in San Jose, CA Zero Tolerance Rules Under 21

Three thresholds, not one

For a driver under 21 the Vehicle Code stacks separate offenses. Section 23136 provides that it is unlawful for a person under the age of 21 who has a blood alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test device or other chemical test, to drive a vehicle (Vehicle Code 23136). Section 23140 makes it unlawful for a person under 21 who has 0.05 percent or more by weight of alcohol in the blood to drive a vehicle (Vehicle Code 23140). Above those sit the adult statutes: section 23152(a) for driving under the influence and 23152(b) for 0.08 percent or more, which apply at any age. The DMV states the limits in the same order in the driver handbook: 0.08 percent or higher over 21, 0.01 percent or higher under 21 (California DMV).

The screening device is not optional under 21

Section 23136 states that a person under 21 who drives is deemed to have given consent to a preliminary alcohol screening test or other chemical test for the purpose of determining alcohol content when lawfully detained for an alleged violation of a traffic law, and that the person must be told that failure to submit to or complete the test will result in a suspension or revocation of the driving privilege for a period of one year to three years under section 13353.1. Section 13388 describes what happens next: if a device is immediately available the officer shall request a preliminary alcohol screening test, and on a refusal or a result of 0.01 percent or greater the officer serves the notice of suspension, takes possession of any California license, and issues a temporary license valid for 30 days (Vehicle Code 13388). The officer must forward the paperwork to the department immediately, which the statute defines as on or before the end of the fifth ordinary business day following the service of the notice.

The suspension does not require a conviction

Section 13353.2 directs the department to immediately suspend the driving privilege of a person who was under 21 and had 0.01 percent or greater blood alcohol as measured by a screening or other chemical test (Vehicle Code 13353.2). The same section states that the determination of facts by the department is a civil matter which is independent of the determination of the person's guilt or innocence, and that the disposition of the criminal proceeding does not affect the administrative action by collateral estoppel. Section 13353.3(b)(3) sets the period at not less than one year for a section 23136 determination or a refusal under section 13353.1 (Vehicle Code 13353.3). The DMV states the same figure: for a driver under 21 whose screening or chemical test showed 0.01 percent or more, the driving privilege will be suspended for one year (California DMV).

Refusal under 21 has its own ladder

Section 13353.1 attaches its own periods where a person under 21 refuses or fails to complete a preliminary alcohol screening or other chemical test: one year for a first occasion, a two-year revocation where the record shows a qualifying prior within ten years, and a three-year revocation with two or more (Vehicle Code 13353.1). The notice becomes effective 30 days after service. Section 23612(i) matters here as well, because it requires an officer to advise a person that the screening test is being requested to assist in determining whether the person should be arrested, that the test does not satisfy the obligation to submit to a chemical test after arrest, and that the person may refuse to take the screening test (Vehicle Code 23612).

What the criminal side looks like

A section 23140 violation is handled differently from a section 23152 case in one procedural respect the statute names: section 23140(c) directs that the clerk of the court forward an abstract of the record to the department within 10 days of the conviction. Where the charge is a section 23152 count, the age of the driver does not change the elements, but section 23578 identifies a concentration of 0.15 percent or more, or a refusal, as a special factor that may justify enhancing penalties (Vehicle Code 23578).

Reinstatement, fees and the hearing clock in San Jose

The DMV states that the reissue fee is $125 but remains $100 where the driver was under age 21 and was suspended under the zero tolerance law, and that proof of financial responsibility must be filed (California DMV). The hearing right is the same one adults have and it closes just as quickly: a request must be made within 10 days of receiving notice of the action, and the hearing is held before a Driver Safety Hearing Officer either remotely by videoconference or in person (California DMV). For this area the Driver Safety Office is at 90 Great Oaks Blvd., Suite 104, in San Jose (California DMV), while a criminal charge from a San Jose stop is answered at the Hall of Justice at 190 West Hedding Street (Santa Clara County Superior Court). This page is general information about California law and not legal advice. A driver under 21, or a parent, should speak with a licensed California attorney, and the attorney who advertises on this site can be reached at the posted number.