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I got an aps/dui when i was in a parked car. Since im under the drinking age, can i get an underage drinking citation instead?

Los Angeles, CA |

My car was parked in a parking lot. At some point a officer walked over and flashed a light into the car. I am currently under the age of 21. He had my friend hand over a bag which had the bottle inside. I had just took my first sip and was ready to leave the car when officer came. He did the follow the finger test which i did with no prob. He breathalized me, first time i was doing it right. second time it seemed okay but they decided to keep me standing outside for another about ten or fifteen minutes and breathalize me again. the officer never told me what the breathlizer read and ended up giving me the aps. is there anyway to contest it and recieve an underage drinking citation instead?

i did request a hearing within those ten days

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Attorney answers 5


If you are under 21, it is illegal to drive with any measurable amount of alcohol in your system. The question here is whether there is any evidence that you actually did drive with alcohol in your system. From what you have said, you may have a defensible case but I would recommend hiring a lawyer to represent you if you wish to contest the charge.


First do not be so confident you passed the eye test (horizontal gaze nystagmus test) as I do not think you know what the test is even looking for. However that being said yes you can and should fight this. In California the DMV and court will need to that you drove the vehicle. The best way to fight this is by hiring an attorney and contacting the DMV within 10 days of the arrest. Additionally you still can lose your license for a year just based on possession of alcohol.
Robert Driessen

Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at


You might end up losing your license because of the possession, the facts as you describe them, may hurt your case you but as another colleague provided, you likely don't know what to look for and only a trained professional can determine what may be helpful to your case. I strongly recommend for you to hire an attorney, he may be able to resolve this.

-- If you find one of my answers helpful, please mark it helpful -- Disclaimer: Answers/information provided on this site general nature for information and educational purposes only. The answer may or may not apply to the facts of your case. Please consult an attorney before making any decisions or in any way relying on this information.


Not only could your be prosecuted for underage drinking, but the DA can still proceed against you for the DUI, especially if you made admissions of driving. The case is much harder to prove but you should assume that the DUI can and will still be prosecuted. Sure underage drinking is a possibility, but if thats all they charge you with consider it a break. Prepare for the worst and hope for the best. DMV will most definitely come after your license for DUI. Defend aggressively. If we can help I offer a free one hour consult if I can answer any further questions.

Brian Michaels


California's zero-tolerance policy for underage DUI is rather clear in that any amount of detectable blood alcohol (even 0.01%) is sufficient for a DUI conviction. Underage DUI convictions also impose more sever license suspensions. DUI cases are complicated and should be discussed with an experienced attorney who handles them regularly.

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