Winning DMV hearings for CVC 23136: “Zero Tolerance” Winning Minor DUI cases

September 23, 2016

Vehicle Code 23136

Vehicle Code 23136 …says that 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…

Description of  CVC 23136

California Vehicle Code section 23136 makes it a crime for anyone below the age of twenty-one to drive a vehicle with a blood alcohol concentration (BAC) of 0.01% or above.  This offense is prosecuted whenever a driver who is under 21 years of age has a blood alcohol level between .01 % to .03%.  This law is known as California’s “zero tolerance” DUI law.  If you are found guilty of a violation of CVC 23136, your driver’s license will be suspended by the DMV for one year.  Refusal to submit to testing when an officer believes a driver who is underage is driving in violation of the “zero tolerance” law of CVC 23136, can result in loss of driver’s license from 1 to 3 years under California Vehicle Code 13353.1.  Los Angeles DUI Attorney will help you defend your Los Angeles zero-tolerance DUI or any other Los Angeles DUI or a DUI in Orange County or a DUI in San Bernardino or a DUI in Riverside or a DUI in Ventura County.

California’s zero-tolerance law aka .01 DUI is prosecuted even when the alcohol level comes from non-alcoholic drinks.  For instance, if a medication, such as cough medications, has alcohol as one of its components, taking this medication and driving can result in a prosecution for DUI.  When the BAC is .01, .02, or .03, the prosecution under zero-tolerance .01 DUI under California Vehicle Code 23136 will take place, when the alcohol level is .04, 0.5, .06, or .07 % BAC, a DUI prosecution under CVC 23140 will take place, when the alcohol level is .08% or above, a “regular” DUI prosecution can take place under CVC 23152(a)/(b).  For a regular DUI prosecution, the driver does not have to be an adult.  A minor only is a minor in eyes of the DUI law for purposes of “civil penalties” or “infraction” DUI prosecution.  When a minor, is over the legal limit, he will be prosecuted for a “regular”, .08% BAC DUI.  In the eyes of the criminal justice system because it is illegal to drive with any amount of measurable alcohol in the blood until the age of 21, but a person who is 18 years of age is prosecuted as an adult.  The juvenile court system in California is only designed for persons under 18 years of age.

Under Vehicle Code 23136, in a .01 % BAC DUI prosecution, the blood alcohol level can be measured by a very inaccurate preliminary alcohol screening (PAS) device.  A PAS test is usually only a roadside test administered using a portable breathalyzer.  It does not require “15-minute” observations under Title 17 and thus is inaccurate requiring confirmation of the alcohol level by an “evidentiary test” usually administered in a police station.  A PAS device takes a sample of your breath to measure the quantity of alcohol in your blood.  Because PAS devices do not require compliance with the California Code of Regulation Title 17, PAS devices can be inaccurate.  If you are a minor who was cited by a police officer for a DUI when your blood alcohol level is under .04% BAC, you can face severe license consequences.  It is imperative to contact a Los Angeles DUI attorney or Los Angeles Criminal Defense Attorney to help you fight and win your underage Los Angeles DUI case and to help you keep your driver’s license after any DUI investigation.

License Suspension

Violation of California Vehicle Code 23136 is such a minor crime that it only carries civil penalties.  Despite a “civil violation” nature of underage DUI violation under CVC 23612, being found guilty of a “zero tolerance” .01 DUI in Los Angeles will result in a suspension or cancellation of your driver’s license by the DMV.  In addition to being found liable by California Superior Court for a “civil violation”, a minor whose blood alcohol level was between .01% and .03% will face a possible licensee suspension by the DMV.  This license suspension is known as “admin per se” (abbreviated as “APS”) suspension.  If you do not have a driver’s license yet but were planning to get one, getting arrested for an “underage” .01 DUI in Los Angeles, can delay your ability to get a driver’s license by one year.

If cited for .01 underage DUI,  in violation of CVC 23136, the citing police officer will confiscate your driver’s license, if you have one, and mail it to the DMV.  Instead of your driver’s license, the arresting officer will issue you a Temporary Driver’s License.  The temporary driver’s license issued by the police officer is only good for thirty days.  When the thirty-day period ends, your DUI-related driver’s license suspension or DUI-related driver’s license cancellation will go into effect.  To stop that, you or a Los Angeles DUI attorney must contact the DMV within ten days of the citation.  When your Los Angeles DUI defense attorney contacts the DMV, he will demand a hearing to dispute the suspension.  At the same time, your Los Angeles DUI Attorney will ask for a “stay” of the suspension, which will allow you to drive while you wait for a hearing.  Because the hearing may not be scheduled for many weeks or even months, it is always best to ask for a “stay” of the suspension.  Your Los Angeles DUI Attorney will also ask for a DMV hearing when the police officer accuses you of a refusal to take an alcohol screening test or other chemical tests after a DUI arrest in Los Angeles.  Because the right to demand a hearing expires within 10 days after arrest, it is very important to contact a DUI defense attorney right away.  Doing so will help you defend your driver’s license and possibly avoid a driver’s license suspension.

The Hearing

The “zero-tolerance” DUI hearing by law used to take place by telephone or in person.  However, ever since COVID, the DMV was ordered not to have in-person hearings and moved all hearings to “by telephone”.  Usually, there are no witnesses in the DMV because the evidence of violation is presented by police reports and other documents prepared by the police.  This procedure used by the DMV is unfair because the DMV is accusing you of a “minor DUI” and at the same time is deciding the facts and applying the law to these facts.  Because DMV is accuser and the judge, APS hearings are hard to win and you will need the help of a Los Angles DUI Attorney to keep your driver’s license.  At the hearing, you don’t have to produce any evidence or testify – because the DMV has the burden to prove that:

  1. You drove the vehicle in violation of law – which is usually based on a reasonable suspicion standard for the police officer to pull you over;
  2. You were lawfully detained – which can be based on such little evidence as the police officer smelling alcohol;
  3. That preliminary alcohol screening device test showed your blood alcohol level above .01 %.

At the hearing, the evidence is usually presented through a DS-367 DMV form which the police officer signs under the penalty of perjury.   You have the right to present evidence – however, unlike all the other alcohol tests, CVC 23136 does not have to comply with Title 17. This is so because a level of .01 BAC can be reported as a negative (Title 17 Section 1220.4).  If the courts will allow Title 17 to be used for CVC 23136 enforcements – .01 BAC results would create a legal impossibility.  Also, California Attorney General in their 1989 opinion stated that title 17 does not apply to PAS devices (72 Ops.Cal.Atty.Gen. 226, 230).  Using PAS devices in Minor DUI cases is grounded in zero-tolerance law: that is, presence of alcohol in any amount will result in driver’s license suspension, unlike adult DUI cases, where a specific level is used as evidence at trial.

However, the police officer’s testimony that PAS showed the presence of alcohol is not enough to take your driver’s license away.  (Coniglio v. DMV 39 Cal.App.4th 671).  Even in the APS hearing, the DMV must establish Adam’s foundation for PAS admissibility.  This requirement comes from Coniglio v. DMV and from Santos v. DMV 5 Cal.App.4th 549 and Davenport v. DMV 6 Cal.App.4th 140

In Coniglio, the driver won the DMV hearing because the reliability of the PAS test was not established:  This was so because:

  1. The officer was only trained for 2 hours on the breathalyzer;
  2. The officer did not know how the device worked scientifically;
  3. There was no testimony on how the PAS device was maintained;
  4. There was no testimony showing that the PAS test was properly administered.

Refusal of Breath Test

A refusal to submit to a chemical test can be explicit—namely, you clearly inform the officer you are refusing to submit to the chemical test. But, the refusal can also be implicit—for instance, you stay quiet when asked if you consent to the breath test. In addition, the officer can decide that an unsuccessful test attempt as a refusal when you failed to complete a test after you consented to do it.  Los Angeles DUI Attorney sees this a lot when the officer decides that a driver is not blowing hard enough into the breathalyzer and because of that the brethalyzer is not getting any reading.

If the DMV proves that you refuse to take the breath test during Minor DUI investigation , the DMV will have your license suspended for one year.  You can also face a two-year license suspension if the DMV proves that you refused the chemical test within 10 years of another refusal, or a reckless driving or a DUI conviction.  If the DMV proves that you refused a chemical test for the third time within ten years or refused the chemical test first time but have had over one reckless driving or DUI conviction within the past ten years, the DMV punishment will increas to three-years license revocation.   Keep in mind that a refusal to submit to PAS cannot be proven unless you were validly informed of the consequences of the refusal to submit to PAS.   As a part of the DMV case, the police officer has to certify that he told you about the consequences of the refusal to submit to a chemical test.

Keep in mind that in many cases, in addition to the DMV administrative prosecution, the police can also submit a criminal case to the prosecutor. If the prosecutor files a criminal case, you will have to defend in criminal court or in juvenile court and if found guilty you can be punished by the court with jail. The fine for refusal to take tests, under Vehicle Code 14905 is $125 but the fines for criminal cases are much higher and can be several thousand dollars because of the additional statutory penalty enhancements.

Driving Record, Points, and Collateral Consequences

If you are a minor, the penalties for a traffic infraction can result in license suspension and an increase in insurance premiums.  A violation of CVC 23136, a zero-tolerance .01 alcohol-related driving by a minor has no driving point, but as discussed above, such drivers will receive a one-year license suspension if the DMV is able to show that a driver’s blood alcohol level was over the .01 BAC.

Because any court record is considered permanent, a .01 % DUI will stay on your record permanently, which means that you can be required to report it on various applications, such as college or employment applications.  Because of that, it is important to choose a Los Angles DUI attorney who is able to provide quality defense for your case.  It is possible to be denied employment or face scrutiny by a school when you have a DUI on your record or fail to report violations of the law including a .01 DUI or other arrests and convictions.  A failure to report an arrest or a conviction can result in expulsion from your school and termination of your professional education and career.  You can even be fired from your job if found guilty of DUI, even if it is an underage DUI.  But disclosing an arrest or conviction can result in denial of admission to school or employment.  A scholarship application can also be denied for persons convicted of DUI.  For all these reasons, it is an investment in your future to fight your DUI.  Please do reach out to our office or to any other Los Angeles DUI attorney.  You need to fight your Los Angles DUI case in court and at the DMV.  This is the only way to minimize discipline by your school and to make sure you can keep your job.

Importantly, many jobs require a special license or certification that will be denied if you have a DUI on your record.  This is important for nurses, police officers, doctors, and other medical professionals, etc.  Immigrant can lose their legal status in the US with a DUI conviction.  For example, a DUI will result in the loss of DACA, because DUI is considered a ‘significant misdemeanor”.

Hardship Waiver: Critical Need Application

Under Vehicle Code 13353.8 when an order suspending your driving privilege is issued because of a violation of Vehicle Code 23136 (a), the department might lift restrictions on an individual’s driving privilege based on a presentation of a “critical need to drive.”  This law allows you to get a restriction if within the past ten years of this arrest for a DUI in Los Angles, the driver had no other significant record.  What is considered significant depends on a DMV hearing officer’s discretion but generally, it is based on not having previous APS action, conviction, traffic violations, or license suspension or cancelation for refusing to take a PAS or other chemical test.

“Critical need to drive” indicates the conditions of the applicant are such that he needs to be issued a junior permit under California Vehicle Code 12513.  The restrictions can be:

  • To and from school or work.
  • Related to family illness.
  • For family enterprises and/or business

An application for Critical Need Restriction is done on DMV form DS 694 which must be filled out and presented to the Driver Safety Actions Unit in Sacramento.  If the critical need application is approved, a driver must pay a reissue fee of one hundred dollars and submit an SR-22 form, which is a California Proof of Insurance Certificate.  Once the money and SR 22 are received by the DMV, the restrictions will be placed and suspension will be lifted to get a driver’s license to the driver under the critical need application.

Los Angeles DUI AttorneyFor case specifical analysis or to get a free consultation with a top DUI attorney in Los Angeles please call our office at (818) 921 7744.   Contact Los Angeles DUI attorney to get immediate help.  

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