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Under 21 DUI misdemeanor or infraction? How can that be cleared?

Escondido, CA |

18 yr-old got pulled over for speeding, car reeked with alcohol had 3 passengers under 21. All three passengers were under the influence. Driver had BAC at .023. Did not get arrested but had car taken away and given a pink temporary driver's license. Can this case be resolved without him getting his license suspended for a year?

Attorney Answers 9


  1. If he pleads guilty to any alcohol related offense, no, a 1 year suspension will follow.

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  2. Yes, it can be resolved without a one year suspension if you and or your attorney prevails at the hearing. Did you call the DMV to schedule an Admin Per Se hearing? Please read the pink temporary license very carefully then hire an attorney well versed with the DMV issues.


  3. It depends on the outcome of the DMV hearing. You have 10 days to request a hearing (by calling the DMV) and then you have the opportunity to contest the evidence, rebut it and to produce evidence of your own. DMV hearings can be won, but are very difficult. Good Luck

    Please do not rely upon any advice given unless I have had to the opportunity to personally review the legal file, court documents any other relevant evidence, not limited to discovery and witness statements,


  4. Yes, but only if he wins the DMV hearing. That will be very hard given the three DMV issues. Likely result is he will lose his license for a year. Contact Andrew Roberts or Greg Hill both avvo contributors for a free consolation. Good luck. Hope this helps?


  5. Difficult situation . Have to win at DMV APS hearing and enter a plea to a non alcohol offense- if allowed - court.get an attorney .

    ANDREW ROBERTS CRIMINAL AND TRAFFIC TICKET DEFENSE ATTORNEY


  6. Under 21 DUI on those facts will likely be filed as an infraction only, if at all, in criminal court.

    The biggest issue with respect to the 1 year license suspension will be the DMV administrative hearing and the fact the BAC was any positive reading when you were under 21. However, as others have previously stated, DMV hearings can be won.

    Setup your DMV hearing within 10 calendar days of your arrest/citation.


  7. DMV hearings are winnable. Breathalyzers have a margin of error, and .023 isn't far from it, assuming that it was accurate in the first place.

    The criminal side of things is likely going to be easier in this case compared to the DMV. Criminally speaking, this is likely to be charged as an infraction.

    Make sure you contact an attorney to schedule the DMV hearing within 10 days of your arrest.

    Good luck!


  8. An under 21 DUI charge with a .02 BAC would likely be filed as a VC 23136 as an infraction if filed. Sometimes there is only a DMV hearing and no criminal action at all in these situations. In order to avoid a 1 year license suspension, the driver would have to avoid any alcohol related conviction (ie. can not get convicted of the VC 23136 even as an infraction), andwould need to win at the DMV hearing. The chances of that happening increase greatly with a DUI attorney defending the driver.

    Since the BAC was a .02 and the driver was not arrested, I will assume driver only blew into a Preliminary alcohol screening device, unless the officer had an ePAS machine, which many counties do not use at this point. A DUI attorney can attack the officers knowledge about the machine, and also any potential issues with the machine to help attack the case and potentially win the DMV hearing as well as the criminal charge if there is one.

    Note that the driver, or the driver's attorney generally only has 10 days from the date of arrest to request the DMV hearing or else they will take automatic action without a hearing on the matter.

    Good luck with everything.

    Legal disclaimer: This message does not constitute legal advice and is for informational purposes only. This message does not establish an attorney-client relationship, which can only be established once a retainer agreement has been fully executed between you and this firm.


  9. When there is a plea to an alcohol related offense, whether infraction or misdemeanor, there is usually a one year license suspension. However, when you're under 21 you can fill out the hardship license application with the DMV. This will allow the individual to drive to work and school if granted.

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