DUI-Related Enhancements

Driver Is Under 21 years Old (Underage DUI)

In California, a minor (20 or under) is not allowed to have any measurable amount of alcohol in his or her blood (that is, so much as even .01percent under California Vehicle Section 23136). If he or she is found guilty of violating this vehicle code section, the minor faces an automatic one-year suspension of his or her driver's license. If the minor does not yet have a California driver's license, the DMV will issue a one-year delay of the minor's eligibility to lawfully drive.

The California Vehicle Code allows for no slack or leeway in the alcohol content of an underage driver. Where a person 21 or over will not violate DUI laws (that is, California Vehicle Section 23152(b)) if he or she drives with a blood alcohol concentration of .07 or lower, a minor (20 or under) is not allowed to have any measurable amount of alcohol in his or her blood (that is, so much as even .01 percent under California Vehicle Section 23136.

If he or she is found guilty of violating this vehicle code section, the minor faces an automatic one-year suspension of his or her driver's license. If the minor does not yet have a California driver's license, the DMV will issue a one-year delay of the minor's eligibility to lawfully drive.

If the minor refuses to submit to a chemical test, he or she faces a suspension from one to three years. The length of the suspension is based on whether the minor has had prior convictions under this California zero tolerance law.

Be mindful that this vehicle code section is enforced civilly, not criminally. In other words, there is technically no jail time for this particular offense alone; however, the minor's California driving privilege may be severely impacted.

Additionally, the prosecutor will charge the minor under California Vehicle Code sections 23152(a): Driving while under the influence of alcohol and 23152(b): Driving with a blood alcohol concentration of .08 or higher. A first-offense conviction for DUI can result in significant fines, lengthy probation, lengthy alcohol program, license suspension and more.

An additional charge you or your loved one may face as a result of prosecution for underage DUI includes California Vehicle Code 23140 VC, commonly known as "DUI under 21 with a BAC of .05 percent — .07 percent." Although this particular offense is an infraction, it is yet another charge with which to contend.

If you or your loved one has been charged with the above offenses pursuant to a "DUI Under 21" prosecution, you or your loved one may be facing the loss of your California driver's license for one year, and other very costly and burdensome consequences.

The punishments for a California Under 21 DUI conviction can be severe. They may include:

  • Heavy fines
  • License suspension
  • Alcohol counseling
  • Driving education

If someone under 21 is pulled over with a higher blood alcohol level, .08 or more, or causes an accident while intoxicated that injures or even kills another person, the punishments are much more severe. You may face time in prison, a revoked license and more.

Whatever the charges against you or your child, you don't want to leave anything to chance. The best way to fight charges against you is meet them head on, using hard evidence and expert testimony to prove your innocence and clean up your criminal record.

For more information about your legal rights in these cases, or if your child faces strict punishments in one of these cases, you need to speak with an attorney at Ernenwein & Johnson, LLP, as soon as possible.

Minor Children In The Car At The Time Of The DUI Arrest

A DUI charge in California is often classified as a misdemeanor but can have serious consequences that vary depending upon factors such as prior record and circumstances of the incident. If there was a minor passenger present in the vehicle at the time, then the consequences can be more severe. California Vehicle Code Section 23152 covers the crime of driving under the influence; but the Vehicle Code also contains a section regarding enhanced penalties for DUI convictions depending on circumstances such as these.

The Possible Consequences

Under California Vehicle Code 23572, DUI penalties are enhanced to varying degrees by the presence of one or more minors in the vehicle. In this case, a minor is any child 14 years old or younger. The additional penalty added onto a DUI charge under this section depends upon prior record of the driver. However, the minimum additional penalty is two days in county jail. From there, the penalties become more severe.

The additional penalty sounds fairly straightforward, but things can get substantially more complicated if not handled correctly. This is because the California Penal Code also deals with the presence of minor children in a vehicle that was being driven under the influence. California Penal Code Section 273(a) provides that it is a crime to willfully endanger a child — which could be filed as a felony or misdemeanor — and has very serious consequences. California considers willful endangerment of a child to include driving under the influence with a minor in the vehicle. Conviction under this section could have very serious consequences such as probation, jail time or significant fines — in addition to the consequences that follow conviction under a felony criminal charge, which can include loss of employment.

How The Enhancement Of A DUI Works With The Felony Child Endangerment Charge

When a DUI is charged that alleges the presence of a minor child in the vehicle, the complaint may contain charges under the DUI provision with the enhancement attached, in addition to a charge of child endangerment. However, in the end, punishment can only be doled out under either the vehicle code DUI enhancement, or the child endangerment statute, but not both — this is because both sections are punishment for child endangerment, essentially the same act, and it is established law that the same act is generally not punishable as multiple crimes in this context. Therefore, if you are convicted of a DUI with the minor passenger enhancement, you will not be subsequently convicted under the potentially more serious child endangerment section, 273(a) of the penal code.

What this comes down to is prosecutorial discretion. Essentially, the prosecutor has two choices when charging your DUI when a minor passenger is involved. The prosecutor can seek either to punish you with the enhancement provision of California's DUI law or pursue a more serious felony charge of child endangerment under the penal code. While it is true that in California, under the Swann-Gilbert doctrine, a crime should be charged under the most specifically relevant law to the incident, that does not force a prosecutor to use the DUI enhancement instead of the California Penal Code Section 273(a) charge. This is because the DUI enhancement references the child endangerment charge under the penal code, thus making that doctrine inapplicable.

What Can Be Done To Avoid Prosecution For Felony Child Endangerment In This Situation?

An experienced attorney can help to avoid charge or conviction under the felony child endangerment statute — either through negotiation or argument in trial. Hiring an experienced attorney right away to handle any DUI charge is the best way to make sure your chances of avoiding felony conviction are as good as possible.

Contact Ernenwein & Johnson

Ernenwein & Johnson, LLP, has been representing people charged with DUI for decades. We have represented thousands of individuals before the DMV and in court since 1987. We are former Los Angeles Deputy District Attorneys and pride ourselves as experienced and compassionate attorneys. We fight for our clients to obtain the best possible result. We walk together with my clients throughout every aspect of their case, including the DMV and court. A more thorough explanation and full evaluation of your case are available by calling or visiting the firm for a free consultation.

Have you or someone you know been charged with DUI or any other crime? Contact Ernenwein & Johnson, Los Angeles and Orange County criminal defense lawyers today at 424-552-3901 for a free case review.

Remember, your call or your visit to our office for a consultation is always free.