People arrested for DUI while they are under the age of 21 face special challenges, but also have special opportunities. (Note: turning 21 while the case is pending has no impact; the distinction arises from the driver’s age at the time of the arrest.) Similar to drivers over the age of 21, a DUI arrest triggers both a court and a DMV Administrative Per Se Hearing. Unlike those over 21, drivers under the age of 21 may be able to get a critical need drivers license that allows them to drive.
Under 21 in the Criminal Court
There are three separate violations that may be faced by drivers under 21. The potential charges are violating:
- California Vehicle Code section 23152 (a), driving while under the influence of alcohol, drugs, or a combination of the two;
- California Vehicle Code section 23152 (b), driving with a blood or breath alcohol level of .08% or higher;
- California Vehicle Code section 23140, driving with an alcohol level of .05% or higher while under the age of 21.
The first two are exactly the same misdemeanor charges as those who are over 21. The last, VC 23140, is an infraction. This is a critical distinction when it comes to the criminal court process, since those accused of misdemeanors in California are entitled to have a jury trial, where they cannot be convicted unless all 12 jurors unanimously agree that the prosecution has proven each and every element of the crime charged beyond a reasonable doubt. However, for infractions, there is no right to a jury trial, merely a court hearing where a judge decides.
If a driver is under 21 at the time of the offense and is convicted of one of these code sections, the DMV Mandatory Action Unit will impose a one-year driver’s license suspension. However, if the defendant is able to demonstrate a critical need to drive, and that public transportation is inadequate to address this need, they may be able to obtain a critical need restriction. Separate and apart from any Mandatory Action, which is triggered by a court conviction, there is still the matter of the DMV Administrative Per Se (APS) action.
Under 21 and the DMV APS Action
Drivers who are under 21 at the time of their DUI arrest also have a DMV Administrative Per Se Hearing to contend with, and the stakes are higher than for drivers who are of legal drinking age. If the under-21 driver doesn’t request a hearing within 10 days of their arrest, or if they request the hearing and lose, they will be subjected to a one year APS suspension under California’s “zero tolerance” laws.
These DMV Hearings can be won, as the DMV must still introduce competent evidence to support its action, and that can often be successfully challenged.
Just like with the court case, the licensee who suffers a one year DMV APS suspension can get a critical need restricted license, assuming that they can successfully show that:
- They have served 30 days of the one-year suspension;
- That they meet the critical need requirements; and
- That they have no reasonable access to public transportation.
It is important to be aware of the distinction between criminal court and DMV actions, and to fully appreciate that its possible to win in one forum while losing in the other, win them both, or lose them both. It is also possible to have a DMV action to contend with even though there is no criminal case. If, for example, a person who is under 21 is stopped for suspicion of DUI and gives a chemical test that shows a BAC of .04%, there will likely be no criminal action, but there will still be a DMV APS action on the basis of the zero tolerance violation.