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Do I have a chance of beating my infraction-"underage with BAC of .02%"?

Chico, CA |

After a long, hot day of "floating" on a river, I was "DD" for my friends when I came to a stop due to a fallen tree and CHP officers blocking my path. One officer came to my car and began asking us how old we were (half were 21) and if I was sober (yes). I was told to get out of the car for a breathalyzer and it rang in .02%, I admitted to enjoying a mimosa 6 hours earlier for my friends birthday.

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Attorney answers 8


There are not enough facts to really answer your question.

It would be very important to know if the preliminary alcohol screening (PAS) device was accurately calibrated and the officer was properly qualified to give the test. In addition, issues of GERD (gastro esophigelus disease - contract burping of gasses from stomach) and large lungs if you are a serious athlete may help you.

I would also want to know what other blood alcohol tests, if any, you took.

I would have to talk to you in more detail to really answer your question.



I took no other tests and am active 5 days a week...


You should contact an attorney to discuss and refrain from posting facts of your case online. If you want to find one in your area you can select "Find a Lawyer" at the top of the page. Good luck.


Zero tolerance is a tough law, but you're so close, you only need to exploit a small margin of error to get to reasonable doubt. You certainly have good chance of winning it. . . but your admission will hurt you. Get a lawyer and fight.

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One mistake you made was admitting to drinking. Still, you will need to consult with an attorney soon to fight this charge and protect your driver's license.


It is possible to win these cases. I have done so with BAC levels higher. You should speak to a DUI attorney in your area in more details about your case. Possible issues with the officer approaching your car. Potential issues with the Preliminary Alcohol Screening / Breath test result and machine used, etc. It is certainly worth it to speak to a DUI attorney as you face a potential 1 year license suspension. No Attorney can make guarantees, but your chances certainly increase with an experienced DUI defense attorney handling your case.

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I was a Park Police officer at the River in Chico for many years. I'm now a defense attorney . If the officer's purpose in talking with you was to interrogate you about your age and alcohol consumption, you have a reasonable issue. If the officer was talking to you for "public safety" such as directing you to drive around the tree, he can talk with you.
I have an office in Chico. I provide a free consultation. Call me at 530-580-8529 and I can give you some ideas on how to proceed.

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A violation of VC 23136 is not an infraction. It is a civil offense. They can be beaten. Requesting a DMV hearing within 10 days is of utmost importance. Hire a locally experienced DUI attorney. Good luck.

Jasen Nielsen


No lawyer can make guarantees, but in your case, with a 0.02% BAC, it's definitely plausible there was some error in the calibration of the breathalyzer, presence of any mouth alcohol (think mouthwash), or health reasons (acid reflux/GERD), to name a few issues that could have impacted the BAC. And since it's so low, you definitely want to fight this, especially with the statement you made to the police. Good luck.

The answer above is for informational purposes only and is not intended to provide legal advice or form an attorney-client relationship. The above response should not be relied upon for any specific situation. If you need legal advice specific to your needs, you should consult with a licensed attorney.