CA CVC 23136 (a) and CVC 23224 (a) - Minor DUI & Transporting Alc

[MikeVG]

What is the name of your state (only U.S. law)? CALIFORNIA

I'm posting this for my little brother (AGE 19):

He got pulled over with an ice chest (beer inside). He had a couple beers in his system and the cop searched the ice chest and saw the beer. My brother had to pour out the beer. The cop administered a field sobriety test and my brother passed. The cop said since he was under 21, he can breathalize him as well. My brother blew a 0.047.

The cop wrote him a ticket for CVC 23136 (a) and circled "infraction" next to it. He also wrote him up for CVC 23224 (a) and circled "misdemeanor."

The ice chest was mine (I'm 21), and my brother was on his way to meet up with me.

The officer said it was not a "full-blown DUI" and did not arrest him. A sober driver was allowed to drive my bro's truck home. He took my bro's license and issued a 30-day temp license.

What happens next? Can we fight the CVC 23224 by saying he was meeting someone over the age of 21?

Any help would be appreciated...

[CdwJava]

No, the 23224 is pretty much a slam dunk unless he can show that somehow he had no idea that the cooler contained alcohol in it. I suspect that is not possible without committing the more serious offense of perjury. The offense is about POSSESSION and not about ownership.

If the vehicle is registered to him, the court may order it to be impounded for up to 30 days. This is not common, but it is possible.

Your brother should at least consult an attorney, though it is likely he faces only a fine and probation (and maybe counseling) and not jail time.

- Carl

[MikeVG]

Originally Posted by CdwJava

No, the 23224 is pretty much a slam dunk unless he can show that somehow he had no idea that the cooler contained alcohol in it. I suspect that is not possible without committing the more serious offense of perjury. The offense is about POSSESSION and not about ownership.

If the vehicle is registered to him, the court may order it to be impounded for up to 30 days. This is not common, but it is possible.

Your brother should at least consult an attorney, though it is likely he faces only a fine and probation (and maybe counseling) and not jail time.

- Carl

Regarding the 23224, the reason I think we have a case is because the law states: "If the driver was unaccompanied, he or she shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage."

The vehicle is registered to my parents, so hopefully no impounding will take place.

What I am wondering now is how strict the punishment is for the 23224 and 23136? The pink paper he was handed says he has 10 days to request a DMV hearing, but the ticket shows a court date of Feb. 3?

Thanks for the advice...

[HomeGuru]

Originally Posted by MikeVG

Regarding the 23224, the reason I think we have a case is because the law states: "If the driver was unaccompanied, he or she shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage."

The vehicle is registered to my parents, so hopefully no impounding will take place.

What I am wondering now is how strict the punishment is for the 23224 and 23136? The pink paper he was handed says he has 10 days to request a DMV hearing, but the ticket shows a court date of Feb. 3?

Thanks for the advice...

**A: nice try.

[CdwJava]

Originally Posted by MikeVG

Regarding the 23224, the reason I think we have a case is because the law states: "If the driver was unaccompanied, he or she shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage."

This defense goes out the window with the "he had a couple beers in his system." But, when you have no other defense, go for the Hail Mary - you never know, he might get lucky.

The vehicle is registered to my parents, so hopefully no impounding will take place.

It's not common, but it is possible.

What I am wondering now is how strict the punishment is for the 23224 and 23136? The pink paper he was handed says he has 10 days to request a DMV hearing, but the ticket shows a court date of Feb. 3?

The DMV is a separate matter from the court. He will almost certainly lose his license for a year or more. CVC 13353.3 says that a "the period of suspension shall not be for less than one year" for a violation of 23136. The court fines and fees should come to about $266 per the 2008 recommended bail and fee schedule. This may go up with the issuance of the 2009 schedule which I have not received yet.

- Carl

[MikeVG]

Originally Posted by CdwJava

This defense goes out the window with the "he had a couple beers in his system." But, when you have no other defense, go for the Hail Mary - you never know, he might get lucky.


It's not common, but it is possible.


The DMV is a separate matter from the court. He will almost certainly lose his license for a year or more. CVC 13353.3 says that a "the period of suspension shall not be for less than one year" for a violation of 23136. The court fines and fees should come to about $266 per the 2008 recommended bail and fee schedule. This may go up with the issuance of the 2009 schedule which I have not received yet.

- Carl

That definitely clears a lot of confusion up. Just a couple more questions:

1) Do you think he is eligible to receive a restricted license to travel to school?

2) Is there any advantage in hiring a lawyer?

Thanks again for all the help!

[CdwJava]

Originally Posted by MikeVG

That definitely clears a lot of confusion up. Just a couple more questions:

1) Do you think he is eligible to receive a restricted license to travel to school?

Probably. I'd have to look up the rules on that, but I suspect that he will be eligible. However, there may be a time frame he has to suffer the full suspension before they will issue a restricted license. I know that info is in the CVC but I have to run, so looking it up is not in the cards this minute. Suffice it to say that he may have to ride the bus or hitch a lift for 90 days or so afterwards.

2) Is there any advantage in hiring a lawyer?

There is rarely a DISadvantage to having one. An attorney might know some angle to minimize the damage and may be able to plea a deal that will minimize his suspension. It's hard to say. Plus, if they charge the 23224 as a misdemeanor, he would be well advised to obtain legal counsel just in case.


- Carl

[poncho]

Originally Posted by MikeVG

The pink paper he was handed says he has 10 days to request a DMV hearing, but the ticket shows a court date of Feb. 3?

Thanks for the advice...

DMV hearing has nothing to do with the court date. Federal law requires mandatory driver's license suspensions for convictions of some serious driving offenses. Leaves it up to the individual state's to decide what is serious. Hence get any traffic tickets in federal parks, Federal court applies that states vehicle code to the offense.

Your brother has not been convicted in court on the charges. If convicted federal and state law makes DUI a mandatory suspension. The state law in almost all places have "mandatory" suspensions when accused of certain offense's. Since he is not convicted by a court, yet. The DMV must afford due process before suspending a driver's license. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Sets out the due process before court convictions the DMV should abide by.

The hearing opportunity by the DMV does not have anything to do with the Courts. Once convicted of a serious driving offense, federal law dictates that a license suspension must occur if a state deems it a suspend able serious driving (road safety) offense. Prevents people moving to another state, get re- licensed and resume driving.

Hence why an attorney for this type of case is a very good idea.