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-I'm former DUI prosecutor Neil Shouse.
And I'm here with former DUI police
officer Michael Scafiddi.
We both are now DUI defense lawyers here
at Shouse Law Group.
And Mike, today, I want to talk about DUI laws for
underage drivers and just a few preliminary things.
First of all, in the state of California, the drinking age
is 21, right?
-That's correct.
-So you're not allowed to drink alcohol at all if
you're under 21.
-Correct.
-And there is what we call the zero tolerance policy, that if
you're under 21, you can't drive a motor vehicle with any
amount of alcohol in your system.
-That's correct.
-That's the law, anyhow.
-That is absolutely the law.
-So let's say someone is under age, is 16, 18, 20.
They get arrested for DUI.
How is the law different for them because of their age?
-In court, it's exactly the same standards as an adult.
If your blood alcohol is 0.08% or greater, a court could find
you guilty, or a jury could find you guilty, of violation
of 23152(a)--
driving under the influence of an alcohol beverage--
or 23152(b) of the vehicle code.
Now where it truly differs is at the administrative, per se,
level at DMV where if your blood alcohol level is found
to be 0.01% or greater, the DMV could suspend your license
for one year.
-So basically what you're saying is that there's two
different cases.
You've got the criminal case.
And that's the same standard as for adults.
And that's really the misdemeanor, criminal, DUI
conviction.
-That's correct.
-Even if they're under 21, the prosecutor still has to show
that they're 0.08 or higher, or that
they're under the influence.
-That's correct.
-But it's at the DMV that everything changes, and you've
got this 0.01 standard, which is different for minors.
-Correct, a much, much lower threshold for the DMV to prove
their case, which can result in that one year suspension.
-How much alcohol does someone have to consume to get a 0.01
in your experience?
-Quite candidly, a sip, a half a sip of
beer, an ounce of beer.
In fact, we had a case recently we handled where the
person gargled with Listerine, And they actually swallowed a
little bit of Listerine.
And they gave her a PAS, a Preliminary Alcohol Screening
test, the CHP did.
And it measured 0.01%.
And that case was a very difficult case to litigate
with the DMV.
-So at the DMV with this 0.01 standard, where basically,
you're a minor, you have consumed any amount of
alcohol, then they can suspend your license for a year.
If you do get the one year suspension, can you get a
restricted license, or is there some way around it, or
is it just a hard suspension?
-That's a great question, Neil, and it's one that we're
asked all the time as criminal defense lawyers at
the Shouse Law Group.
And the bottom line is this-- you're not eligible for a
restricted license.
But under certain circumstances, you can get
what's called a critical need license with DMV.
For example, if you have to travel far distance for
school, and there's no rapid transit or buses that you can
take there, you can request a hardship.
And you do it by filling out an application with the
Department of Motor Vehicles.
And they'll make a determination as to whether or
not you're eligible for a critical need licensed on a
case by case basis.
-And let me ask you this.
You've successfully defended a lot of underage
drivers who got DUIs.
How do you go about it?
What can you do for someone who's, let's say, 20 years
old, and they got arrested for DUI?
-Well, that's a real conundrum sometimes because of this
lower threshold.
But there are lots of defensive
strategies we implore.
For example, even though it's a zero tolerance case, the
office still has to have reasonable suspicion to
believe that our client was driving a motor vehicle under
the influence.
They have to have reasonable suspicion to
make a lawful arrest.
And one of the subordinate issues of lawful arrest is
whether or not they were lawfully detained.
And so in those types of situations, we'll litigate
that issue fully oftentimes by subpoenaing the officers there
to attack their account in their police report to argue
that the officer had no reason to contact our client.
Thus, the DMV shouldn't even consider the evidentiary
breath results.
Also, we put into place arguments by experts that in
fact, there are other forms that can lead to a false
positive reading.
And one of the biggest things that we do to defend these
cases is, oftentimes, a police officer makes a mistake in the
collection of the evidence.
For example, they only do one PAS device, which is a non
Title 17 of California code regulates compliant device.
They never get a second PAS sample.
And there's cases that support that there has
to be two PAS samples.
And we often attack cases because of police error in the
collection of evidence in zero tolerance cases.
-So a lot of people think when the minor gets arrested and
has any amount of alcohol in their system that that's just
the end of the story because of the zero tolerance law.
But what you're saying is, with a good DUI defense
lawyer, it might be possible to avoid that one year
suspension altogether.
-No, that's correct, and just by the way I just talked
about, plus by subpoenaing records to see whether or not
the PAS device that was used, the evidentiary test device
that was used, breath machine, was properly functioning,
maintained, and calibrated.
If it's not, we will argue to the DMV, and even to the
courts, that their results should be excluded under
Californian law.
-And even if, let's say, the minor gets the one year
suspension at the DMV, they still have the court case.
And so do you-- as a DUI defense lawyer, you might have
the opportunity to keep a DUI off their record and spare
them a criminal record.
-That's correct.
In fact, there's another section that allows a
reduction for--
let's say, for example, their blood alcohol is at 0.05.
Under a different code section, 23140, it's not a
misdemeanor.
It's an infraction.
And it's not priorable.
-So for someone who's underage who gets a DUI, and they're
facing a criminal charge and also the possibility of the
one year suspension, there's lots of things as a DUI
defense lawyer that you can do to help to potentially avoid
those consequences.
-There absolutely is.