underage dui california

[ninjamaster]

What is the name of your state? California

I got an underage DUI for having a .01 and .09 BAC on two breathalyzer tests. Can someone explain to me how the BAC went up that fast within a minute after taking the first test? What actually happened was I blew into the machine as hard as I could the first time then the officer gave me about a minute to rest. I blew as hard as I could the second time and it made the noise to say it was done. The offficer however, told me that I need to do it again and he did not give me rest this time so I was out of breath and blowing as hard as I could into the machine again. I read somewhere that blowing makes the alcohol from your lungs go into the machine and without giving me proper rest there was some alcohol left in my mouth from the 2nd test and this could have been included in whatever was left in my lungs.

If this is true, isn't this grounds for something like failure to administer the test correctly? I asked my lawyer and he said this sort of stuff always happens but I'm not too sure. He doesn't seem very knowledgeable about the DUIs and stuff. I tried to give him some ideas for defense that I had researched on the internet but he didn't bother to listen.

My administrative hearing has passed and my license was suspended. My court date has also passedand they chose not file a case against me. My license has been suspended since September. My lawyer has said that he will try to get my license re-instated because since they did not file a case against me, it means there is no grounds for a suspension. Is it really possible for me to get my license back before the 1 year suspension is over? If this is the case, will my insurance still be high because of the DUI charge, even though there was no file cased?

Also, my court date was in October and my lawyer said that he would write a letter to the DMV hearing judge making the case to get my license re-instated. It has been almost 3 months now and we still have not heard anything from the lawyer. He never answers or calls back. He answered one time I think and said he was working on some big trial in another city and had to be REMINDED to call the DMV. Is there anything I can do?

[CdwJava]

Originally Posted by ninjamaster

I got an underage DUI for having a .01 and .09 BAC on two breathalyzer tests. Can someone explain to me how the BAC went up that fast within a minute after taking the first test? What actually happened was I blew into the machine as hard as I could the first time then the officer gave me about a minute to rest. I blew as hard as I could the second time and it made the noise to say it was done.

He used a portable breath test which is not as accurate as the devices used at the station for a mandatory chemical test. But, if it registered ANY positive amount, you're pretty much done as an underage driver. They might not be able to make a 23140 stand as that requires .05 or higher, but 23136 makes it unlawful for someone under 21 to drive with ANY alcohol in their system. So, unless you can argue that the device detected alcohol when there was none, you're likely to be found guilty and lose your license for a while.

My administrative hearing has passed and my license was suspended. My court date has also passedand they chose not file a case against me.

Likely because they suspended your license. in fact, that used to be the ONLY possible punishment to 23136 - a suspension.

Is it really possible for me to get my license back before the 1 year suspension is over? If this is the case, will my insurance still be high because of the DUI charge, even though there was no file cased?

The DMV can suspend even if no case is filed - they are two separate issues. And, I suspect, you were never charged with DUI (per CVC 23152(a) or (b)) ... I suspect you were charged with 23136. If you had been charged with 23152 (DUI) you would have been taken to jail and required to take another test.

- Carl

Also, my court date was in October and my lawyer said that he would write a letter to the DMV hearing judge making the case to get my license re-instated. It has been almost 3 months now and we still have not heard anything from the lawyer. He never answers or calls back. He answered one time I think and said he was working on some big trial in another city and had to be REMINDED to call the DMV. Is there anything I can do?[/quote]

[ninjamaster]

Okay, thanks for clearing some stuff up for me. One of the issues in the DMV hearing was if the officer had reasonable cause to stop, detain, and test me. This is all in retrospect, but the police report states that I was driving 52 MPH in a posted 30 MPH zone. I was not issued a speeding ticket and I do not believe that I was speeding as I was actually driving a damaged vehicle with a damaged frame and was driving cautiously. I read that speeding is not a symptom of a drunk driver as driving at higher speeds requires better control of the car. I brought this up with my lawyer and he responded as if speeding IS a symptom of drunk driving and dismissed it. It seems to me like my lawyer automatically believed that I was speeding and did not even attempt to question it. Would the officer have been forced to provide proof of me speeding had we attempted this?

He also stated that I had an unsteady gait and slurred speech. If I had an unsteady gait, wouldn't that mean I would have less control of the vehicle and been unable to drive without visible and clear swerving? Wouldn't it require a higher BAC to get to the point where I am speaking with a slurred speech?

Would the fact that I am allergic to alcohol have played any role in this had it been presented? I have gotten a severe allergic reaction from alcohol before where my arms swell up and a severe rash/itchiness appears on the arms. My face also swells up but rash did not appear.

So the DMV will not re-instate my license no matter what?

[CdwJava]

Originally Posted by ninjamaster

Okay, thanks for clearing some stuff up for me. One of the issues in the DMV hearing was if the officer had reasonable cause to stop, detain, and test me.

The issues in the hearing include the reasonable cause for the stop and the reason to believe that you had a BAC of .01 or better.

This is all in retrospect, but the police report states that I was driving 52 MPH in a posted 30 MPH zone. I was not issued a speeding ticket and I do not believe that I was speeding as I was actually driving a damaged vehicle with a damaged frame and was driving cautiously.

No citation is required. And all the DMV hearing officer has to do is believe that the stop was valid - not that you might be guilty of the offense. if the officer made a stop believing you were speeding, then the stop was valid. After the stop, if he smelled the odor of alcohol or observed something else to give rise to a reasonable belief you had been drinking, you were then required to submit to the field breath test or lose your license.

I read that speeding is not a symptom of a drunk driver as driving at higher speeds requires better control of the car.

It CAN be a symptom. But, you weren't stopped for being drunk, you were stopped for speeding.

And, as I said, it does not appear that you were charged with DUI.

Would the officer have been forced to provide proof of me speeding had we attempted this?

Not at a DMV hearing, no. Besides, even in traffic court it would have been his word against yours. What "proof" do you think he could have provided?

He also stated that I had an unsteady gait and slurred speech. If I had an unsteady gait, wouldn't that mean I would have less control of the vehicle and been unable to drive without visible and clear swerving? Wouldn't it require a higher BAC to get to the point where I am speaking with a slurred speech?

An unsteady gait and slurred speech are two objective signs of impairment, they are not absolute indicators of specific types of driving. And speech can be slurred at low levels ... off the top of my head, you can see it at .03 or higher in many instances.

Again, moot issues as there was no court trial to have to prove DUI.

Would the fact that I am allergic to alcohol have played any role in this had it been presented?

"Allergic"? So ... are you saying you did not have ANY alcohol at all that night?

So the DMV will not re-instate my license no matter what?

They might. The best bet might be to ask for a restricted license allowing you go to and from work or school.

- Carl

[ninjamaster]

Can you explain how the second test was a .01 while the first one was a .09? If it was a mechanical error in the machine, what is to say the first .01 wasn't a mechanical error?

The reason I've waited is because if I thought my license was fully unrestricted, it would be like they took the DUI off my record so I wouldn't have to pay the higher premium. My lawyer, however, does not answer his phone or return calls. What hope do I have? Should I just contact the DMV myself or just apply for the restricted license? I'm not even sure if I'll be able to afford my insurance though. I'm a young male driver.

[CdwJava]

Originally Posted by ninjamaster

Can you explain how the second test was a .01 while the first one was a .09? If it was a mechanical error in the machine, what is to say the first .01 wasn't a mechanical error?

It sounds like the FIRST test was .01 ... you wrote:

"I got an underage DUI for having a .01 and .09 BAC on two breathalyzer tests. Can someone explain to me how the BAC went up that fast within a minute after taking the first test?"

Depending on the device used, I could explain it.

In any event, for 23136 anything between .01 and .09 is sufficient to support the allegation. You would have to argue that the device was not working at all and that you had not consumed ANY alcohol ... of course, that might contradict something you said to the officer at the scene and it might contradict the officer's OTHER observations (odor, action, etc.).

The reason I've waited is because if I thought my license was fully unrestricted, it would be like they took the DUI off my record so I wouldn't have to pay the higher premium.

It's not a DUI - not really. 23136 does not require impairment.

Were you charged with 23152 or not?

What were you charged with? Knowing the answer to that question will help a lot. If you do not want to post the section then all we can say is, 'Good luck to you.'


- Carl

[ninjamaster]

I don't think I was charged with 23152 because I was not taken to jail. The officers just had my parents come to pick me up at the site where I was pulled over and cited. I was most likely charged with 23136 and a provisional license violation. I am not exactly sure the number or anything because my lawyer has all the papers and won't answer or return calls.

The officer wrote in the report that I admitted to drinking and driving. I did not admit to anything. I did not have anything to drink that night. I was still fresh off my allergic reaction to the first time I drank alcohol which was weeks before which left me with peeling skin after the swelling in my arms went down. I was prescribed with three different medications for my allergic reaction. I got a violation of the provisional license for having 2 passengers under the age of 25 in the car with me. They were the ones who had drank alcohol, I was merely the designated driver. During the investigation, the officer separated us and questioned us and I am assuming that they admitted to having drank hours before and the officer just took that and twisted it.

[CdwJava]

Originally Posted by ninjamaster

I don't think I was charged with 23152 because I was not taken to jail. The officers just had my parents come to pick me up at the site where I was pulled over and cited. I was most likely charged with 23136 and a provisional license violation. I am not exactly sure the number or anything because my lawyer has all the papers and won't answer or return calls.

Then it was likely 23136. You shouold have been issued a citation. If no cite was issued, and action was taken on your license, you were given a DS 367 (an Admin Per Se) form and that is likely the only action taken ... adminsitrative by the DMV.

I got a violation of the provisional license for having 2 passengers under the age of 25 in the car with me. They were the ones who had drank alcohol, I was merely the designated driver. During the investigation, the officer separated us and questioned us and I am assuming that they admitted to having drank hours before and the officer just took that and twisted it.

The time to contest the violation would have been at the hearing. Since it has long passed, all you may be able to do now is seek the restoration of your license or ask about a restricted license.

- Carl

[ninjamaster]

We contested the violation and lost. We tried to argue that the machine was not properly calibrated but according to the test, it was properly calibrated at the time of the test. I am not sure how breathalyzer machines work, but how would they be able to tell if something was properly calibrated at the time of the test when they checked for the calibration about a month and a half after the incident. Off the top of my head, the machine used was an Intoxilyzer something.

Is there anything I can do about my lawyer's inability to answer or return calls?

[CdwJava]

Originally Posted by ninjamaster

We contested the violation and lost. We tried to argue that the machine was not properly calibrated but according to the test, it was properly calibrated at the time of the test. I am not sure how breathalyzer machines work, but how would they be able to tell if something was properly calibrated at the time of the test when they checked for the calibration about a month and a half after the incident. Off the top of my head, the machine used was an Intoxilyzer something.

Well, then, you made the argument and lost. There IS (or was) an appeal process available through the DMV.

Is there anything I can do about my lawyer's inability to answer or return calls?

Yes. You can hire another lawyer.

- Carl

[ninjamaster]

This lawyer has all the papers regarding my case.

Will my insurance still go up because of the 23136?

[CdwJava]

Originally Posted by ninjamaster

This lawyer has all the papers regarding my case.

Will my insurance still go up because of the 23136?

It might ... it depends on what is on your driving record and what the policy of your insurer is.

As for the attorney, his possessing the paperwork might be a problem. But, there may not be much he can do so calling you may be of little consequence at this point.

- Carl