Underage DUI

[raytor57]

What is the name of your state?What is the name of your state? California. My 19 year old son was cited for underage DUI. 23136(a)VC. His BAC was .028 which is above the .01 limit for under 21 drivers. Is this an infraction or would it be considerd a misdemeanor?

[BelizeBreeze]

Originally Posted by raytor57

What is the name of your state?What is the name of your state? California. My 19 year old son was cited for underage DUI. 23136(a)VC. His BAC was .028 which is above the .01 limit for under 21 drivers. Is this an infraction or would it be considerd a misdemeanor?

Underage DUI is a very serious offense. First Underage DUI Convictions can result in possible loss of full driving privileges for a minimum of 2 years, pPossible imprisonment for up to 1 year, and a maximum $2,500 fine.

California's "Zero Tolerance" laws make things a lot tougher on those people under 21 who are caught driving with any hint of impairment due to alcohol. The under 21 driver can have their driver's license taken away by the D.M.V. if their blood alcohol content is .01 percent or greater; they can be charged with a violation of California Vehicle Code section 23140 (DUI for persons under 21) if their blood alcohol content is .05 percent or greater; and they can be charged under the same DUI laws as persons over 21, all at the same time.

[raytor57]

Next to where the violation is writen on the ticket is an (I) and an (M), neither of which was circled that has me confused.

[CdwJava]

Originally Posted by raytor57

Next to where the violation is writen on the ticket is an (I) and an (M), neither of which was circled that has me confused.

It is neither. CVC 23136 is an Administrative provision in the Vehicle Code and provides for certain conditions and even a suspension be applied to the license holder depending on the circumstances and history.

- Carl

[Son of Slam]

23136 just states that .01 is limit for under 21, anyone under 21 driving, with probable cause of drinking, will submit to test or lose license. Your son could still be found in violation of Section 23152 or 23153 or any other provision of law. I would suggest your son flee to Mexico... no, wait, you all ready are in Mexico. OK, my bad.



*

[CdwJava]

I doubt that .028 will qualify for a DUI unless he was stumbling drunk. In that case he would have been charged for that at the scene.

- Carl

[raytor57]

As soon as my son received this ticket I thought he would need a lawyer. We retained one that claimed to specialize in DUI's. About 3 weeks before the court date we were mailed a courtesy notice which gave my son options, one of which was to pay a fine and go to traffic school. This would keep his record clean and not raise our insurance cost? (The DMV has possesion of his D.L. and conducted a seperate hearing of which we have not received a decision on) Our lawyer was given a copy of the notice a day after we received it. She said that on our court date they would try to get it dismissed or reduced to a lesser charge. In court, the judge was upset that we would take up her time with a traffic ticket and asked why we didn't appear in traffic court on it? Our lawyer asked for a side bar after which it was suggested to us, by our lawyer, to take the fine and traffic school. After leaving the courtroom, the lawyer's comment to us was "We made out like bandits. Since the officer had not circled the (M) on the ticket, the court had mistakenly considerd it a simple traffic ticket, just pay a fine and go to traffic school." Did we need a lawyer for this? Should the lawyer have even taken this case?

[CdwJava]

CVC 23136 is not a criminal violation under the CVC. On its face, it allows the DMV to impose sanctions against the driver as well as civil penalties (the fine and assessment, I imagine). It is also not subject to a violation point on his driving record per CVC 12810(i)(3). So the reason for traffic school was seemingly moot.

Here is the punitive section for 23136:

CVC 13390. Notwithstanding Section 40000.1, a violation of Section
23136 is neither an infraction nor a public offense, as defined in
Section 15 of the Penal Code. A violation of Section 23136 is only
subject to civil penalties. Those civil penalties shall be
administered by the department through the civil administrative
procedures set forth in this code.

In my opinion, you did not need an attorney.

But I readily admit I could be missing something.

- Carl

[raytor57]

Should an honest lawyer have taken this case and our money? Did our lawyer mistake an under 21 (just over a .01 BAC) with a 21 and over (above a .08 BAC) DUI? Should I ask for a refund? Should I lodge a complaint? I know that hindsight is 20/20. I have concluded that:[list][*]We did not need a lawyer. $1,000.00[*]I did not need to miss a day of work to be in court with my son. $240.00[*]My son did not have to miss a day of work to appear. $70.00[*]We could have sent the fine and the request for traffic school fee by mail.[*]We would be over $1,000 ahead as the fine and fee was less than $200.

Besides cuda, wuda, shuda, have I reached a valid conclusion? Please respond to any or all of my questions. Thank You, Ray

[CdwJava]

Originally Posted by raytor57

Should an honest lawyer have taken this case and our money?

That depends if there was anything he could do about the situation or not. My personal opinion is that there was no need for an attorney ... but there may be some idiosyncracy that I have missed.

Did our lawyer mistake an under 21 (just over a .01 BAC) with a 21 and over (above a .08 BAC) DUI?

He might have mistaken it for a CVC 23140 case which IS a criminal violation. That one involves a subject under 21 with a .05 BAC. But, if he has any DUI experience he would never make such a mistake.

Should I ask for a refund? Should I lodge a complaint? I know that hindsight is 20/20. I have concluded that:[list][*]We did not need a lawyer. $1,000.00[*]I did not need to miss a day of work to be in court with my son. $240.00[*]My son did not have to miss a day of work to appear. $70.00[*]We could have sent the fine and the request for traffic school fee by mail.[*]We would be over $1,000 ahead as the fine and fee was less than $200.

Besides cuda, wuda, shuda, have I reached a valid conclusion? Please respond to any or all of my questions. Thank You, Ray

I don't know if you have any complaint. You have the right to hire an attorney even if you are never charged. Unless he lied or somehow misrepresented the matter to you, I don't see that he committed any malfeasance.

Plus, there may be something I'm missing in all this with regards to the attorney.

Here's what I would do: I'd make my son pay me back for every penny; he'd be grounded for AT LEAST 6 months; no car access for a year - even if he DOES get his license back; and a list of chores to keep him busy during his grounding.

of course, the policy in my house is that the punishment shall greatly exceed the crime.

- Carl

[raytor57]

Are there any more comments and opinions or should I let this die?

[BigMistakeFl]

When you paid the lawyer, you would have signed a contract with him. Unless something strayed outside of that agreement, which I doubt, then you most likely do not have a claim. If you really feel strongly about it, you can report him to the state bar's board of governors, but that is a cumbersome process and is governed by other lawyers. You would need to make sure you are completely right.