Zero Tolerance Law

This law was enacted in 1994 and mandates the California Department of Motor Vehicles to suspend an underage’s driving license if he/she refuses to submit a PAS test or tests a BAC level of 0.01% or more. This law presumes that underage drinkers, (those 21 years and below) may be affected more, even by the smallest amount of alcohol.

The zero tolerance law applies in connection with Vehicle Code 23152 that defines driving under the influence offense. According to section (a) of this code, it is illegal to drive a vehicle while under the influence of alcohol. "Under the influence" implies that you cannot drive as well as a sober person because of the mental or physical impairment caused by the intoxicant.

It is common to face charges under VEH 23152 (b) when the BAC test reveals at least 0.08% of alcohol. This is commonly referred to as the ‘per se DUI definition. In some instances, you can face a DUI charge even if you have a BAC of below 0.08%. One of these instances is drunk driving while below the age of 21 years, and this is what is referred to as the zero tolerance law.

So, basically, the zero tolerance law is the law that doesn’t tolerate a person who is 21 or below operating a vehicle under any level of alcoholic influence.

This law was enacted in 1994 and mandates the California Department of Motor Vehicles to suspend an underage’s driving license if he/she refuses to submit a PAS test or tests a BAC level of 0.01% or more. This law presumes that underage drinkers, (those 21 years and below) may be affected more, even by the smallest amount of alcohol.

The zero tolerance law applies in connection with Vehicle Code 23152 that defines driving under the influence offense. According to section (a) of this code, it is illegal to drive a vehicle while under the influence of alcohol. "Under the influence" implies that you cannot drive as well as a sober person because of the mental or physical impairment caused by the intoxicant.

It is common to face charges under VEH 23152 (b) when the BAC test reveals at least 0.08% of alcohol. This is commonly referred to as the ‘per se DUI definition. In some instances, you can face a DUI charge even if you have a BAC of below 0.08%. One of these instances is drunk driving while below the age of 21 years, and this is what is referred to as the zero tolerance law.

So, basically, the zero tolerance law is the law that doesn’t tolerate a person who is 21 or below operating a vehicle under any level of alcoholic influence.

Drunk driving is usually a misdemeanor. However, if you hurt or kill anyone else and your BAC level test is above 0.08%, harsher penalties may apply, no matter your age, your offense may be upgraded to a felony. A felony DUI conviction comes with a 16-month to a four-year prison sentence, and an injury DUI can come with fines as high as $5,000.

Misdemeanor DUI (California VEH 23152) usually doesn’t involve injuries. On the other hand, felony DUI (VEH 23153) requires someone (other than the driver) getting hurt or dying. A DUI charge in California is a felony if:

1. The offense caused death or injury of another person

   If another person suffered injuries or died because of your drunk driving, and either violated another vehicle code or drove negligently, you can face a DUI felony charge under:

   • VEH 23513 for DUI causing injury
   • PEN 191.5(a) for gross vehicular manslaughter while intoxicated
   • PEN 191.5(b) for DUI second-degree murder or vehicular manslaughter while intoxicated.
2. You have 3 or more prior DUI convictions within ten years

   Driving under the influence in California is one of “priorable” offenses. A priorable offense has stiffer punishments for the subsequent similar crime.

   If you have been convicted of DUI within the last 10 years for at least three times, your current DUI charge is likely to be a felony. Concerning drunk driving, the prior offenses should be any combination of these convictions:

   • DUI
   • Wet reckless
   • A conviction in another state (not California) that would be convicted in California as a drunk-driving offense
3. You have at least one prior felony DUI conviction

   If you are charged with a DUI, whether a felony or a simple misdemeanor that has no aggravating factors, and you have a prior felony DUI conviction, your current offense would be charged as a felony. In most cases, the prior DUI conviction or convictions can either be a DUI causing injury or death or a felony because of multiple convictions.

If your BAC is 0.01 % or higher, you stand to lose your driving privileges for one year; your case may be sent to a traffic court to face stiffer charges. If your BAC is 0.05 % or higher, your case will be handled in a criminal court where you will face stiffer charges and, possibly, be enrolled in a DUI course. However, if your BAC level test is 0.08 % or more, you may be charged as an adult, and you will face the full force of the DUI laws.

The punishments for violating VEH 23152(a) depend on whether it is your first or subsequent offense. Mostly, the first up to third DUI offenses are misdemeanors, while the fourth DUIs are charged as felonies. However, the period between the former DUI conviction and the current charge must be a maximum of ten years.

1. Possible Penalties for First DUI Convictions

   When you are convicted of DUI for the first time, the potential penalties include probation for 3-5 years, a maximum jail term of six months, between 390 and 1,000 dollars in fines, a court-approved alcohol school program for three or nine months, a driver's license suspension for six to ten months.

   After one month, you will often receive a restricted driving license. With this license, you can only drive to essential places such as school (including a DUI school) and work.

   Additionally, the judge will offer you a probation order. The order requires that you attend the DUI program and complete a minimum of 90 days. If you had extraordinarily high BAC percentage, you must complete a minimum of nine months in the DUI class. That is, the maximum length of DUI probation is three months, and the program is effective even if you are serving a jail term.

2. Penalties for Second DUI Convictions

   In case of a second California DUI conviction within a period of ten years, your charge is likely to be a misdemeanor. The charge would be a felony if someone died or suffered an injury during the DUI accident.

   The punishments for second DUI convictions are similar to those of the first conviction. However, some of these punishments would be more stringent. For instance, the jail term for a second DUI conviction goes up to one year as compared to the maximum six months in the first conviction. Also, your driving license will be suspended for two years; after twelve months, it is converted to a restricted license.

   If your license is limited, you can reapply after 90 days. For a restricted license, you have to wait for one year before applying for a license.

   Similar to first-time DUIs, second-time DUIs convictions require that the offender is on probation under the discretion of the judge. The maximum length of probation is three years. Further, the judge has to decide on the length that you will attend a DUI school, which is either 18 months or 30 months. an

3. Penalties for Third DUI Convictions

   A third DUI offense within ten years carries the following punishments: between 3 and 5 years of summary probation, a county jail term ranging from 120 days to one year, between 390 dollars and 1,000 dollars as fines, a mandatory 30 months’ court-approved DUI school, a 3-year California driver's license revocation which, after 6 months, you may apply for a restricted license, and you are designated as a "habitual traffic offender" by the Department of

4. Penalties for Fourth or Subsequent DUI Convictions

   A fourth or subsequent charge for DUI is usually a felony. However, the felony penalties will only apply if these subsequent offenses have been committed with ten years after the previous conviction. The primary reason why these offenses are treated as felonies is that judges perceive that you had ample time to learn a lesson, but still violated the law.

   Similar to the previous convictions, the fines range from 390 dollars to 1,000 dollars. You can also face a minimum of 16 months in jail and a maximum of one year in prison. Additionally, the DMV will revoke your license for four years and name you a habitual traffic offender.

   After this felony conviction, you lose the right to vote while on parole or jail. Additionally, you won’t be able to own a gun. This is why you need to have a strong defense strategy in order to avoid these consequences.

There are several indirect costs that follow the above convictions. First, you will pay a minimum of 100 dollars if your vehicle has to be towed from the crime scene. The towing job is further associated with another minimum of 100 dollars as an impound fee.

Additionally, the court-mandated DUI treatment program could cost a minimum of 600 dollars. Besides, you may have to pay the court at least 800 dollars as general costs of your arrest.

As if the above costs aren’t enough, you will have to contribute 500 dollars to the victim’s compensation program. This is a program that helps victims who suffered losses as a result of the drunk-driving incident.

Another hidden cost is related to your insurance driving premiums. After a DUI conviction, your vehicle’s insurance provider will designate you an “unsafe driver”. In turn, this lowers your chances of getting insurance cover from the company in case you have an accident.

Lastly, retrieving your driver’s license will cost 125 dollars as reinstatement fee. If the court ordered you to fit your vehicle with an ignition interlock device, you will have to pay an average of 2.50 dollars per day in addition to the 100 dollars IID installation fee.

For a DUI prosecutor to prove that a person violated the zero tolerance law, there are two major elements of the crime that they must establish. In the case the evidence is not enough to prove these elements, the prosecutor has no option but to drop the charges. Note that it is also crucial that the prosecutor prove that the drive was under 21 years of age.

1. The accused was driving

   Arresting officers often claim that a person was driving a vehicle after physically observing them. If they did not physically observe the person driving a vehicle, the prosecutor will use alternative means to prove this element. For instance, witnesses can help to prove that a person was behind the wheels, in most cases, after a DUI accident where a traffic officer was not present. Also, the driver’s admission that they were driving would strengthen the prosecutors proof of this element.

2. The Accused was under the influence of alcohol at the time of driving

   Often, the prosecution relies on the results of the breath and blood tests taken after the time of driving. If the driver refused to take a test, the prosecutor should use alternative means to prove this element. This may include proof of their driving conduct and performance on the field sobriety tests.

• Field sobriety tests are not reliable: Example of these tests are walking along a straight line toe-to-toe and reciting numbers or letters backward. It is usual for field officers conducting the tests to conclude that you are drunk if you fail a test. However, failing in these tests is not a sufficient indication that you are drunk – for example, you may have been nervous or naturally clumsy and incapable of reciting the alphabet or walking on a straight line.
• Your driving pattern was erratic, but you were not intoxicated: It is common for traffic police to pull you over and arrest you based on your erratic driving pattern. However, an erratic driving pattern does not necessarily mean that you are intoxicated. According to the National Highway Traffic Safety Administration, a driving pattern can only account to 35% of drunk driving incidents. Thus, an arrest that is primarily based on a driving pattern may not mean that you are guilty of DUI.
• The symptoms of intoxication displayed are not evidence of intoxication: The first thing that an officer will do after pulling you over is examining any sign of drunkenness. They will rely on symptoms like slurred speech and red eyes in addition to other signs like alcoholic breath. However, these symptoms are not essential indicators that you were drunk; sometimes, you may be having fatigue, illnesses, or allergies that are responsible for these symptoms.
• The arresting officer followed wrong procedure during your arrest: Your DUI charges may be dropped if there is proof that the officer acted in an incorrect manner while pulling you over or exhibited rudeness when filing the paperwork.
• You were not impaired while driving: Typically, you are both mentally and physically impaired when you are drunk. If a traffic police officer arrests you based on this fact, you may argue that the impairment was as a result of another issue that is not related to alcohol consumption. For instance, you may be naturally impaired, but that doesn’t negatively affect how you drive.

You may still claim that you are above 21 years even if you had a BAC of 0.01%. In this case, you won’t be violating the zero tolerance law. However, you will not escape charges for other DUI offenses, and you will be punished as someone of legal drinking age.

The above defense strategies can be shown with this example:

You are on a DUI trial, specifically, you are underage meaning that you allegedly violated the zero tolerance law. The officer who arrested you testifies at your hearing that when he pulled you over, he noticed that your breath smelled like beer. However, the officer admits that they did not question you about any other possible cause of the odor after cross-examination by your defense attorney.

It turns out that you had several non-alcoholic beers throughout the day, and the drinks are the cause of the alcoholic odor. Additionally, the drink did not have enough alcohol to be considered "under the influence" according to the California DUI laws. This fact casts substantial doubt in the intoxication claim and prevents the prosecutor from sufficiently proving that you are guilty of DUI. Therefore, a DUI arrest does not have to mean a DUI conviction.

Whether your situation is similar to the above example or not, the zero tolerance law does not give exemptions provided that you are under 21 years. You need proper legal representation to fight the DUI charge(s) by using the above defense strategies. If you are in Vista or cities in North County, CA, we invite you to contact Vista DUI Attorney Law Firm at 760-691-1540 to get help concerning your case.