How Defensible is This Charge?

Interviewer: That makes sense. Because the limit is so low, have you had any success defending underage drivers with BAC levels very close to 0.02?

Dale: Absolutely. You know the defenses are still available to you. You could still attack the Breathalyzer machine. You could say that the machine was wrong, or there was no reasonable suspicion to pull my client over. The premise of reasonable suspicion still applies, even for underage drivers.

Don’t forget, now they are subject to being charges at such a low level, so how is the officer going to detect that the driver is under the influence? A driver that has a level of 0.03 will be acting normally, meaning no slurred speech or visible motor coordination impairment because they’re not intoxicated, so it raises issues concerning establishing probable cause for the arrest.

Interviewer: Is this a common charge because since the level of intoxication can be so low?

Dale: The usual scenario is these underage offenders are usually up at about the legal level, which is 0.08 or 0.10. However, if you have a client that tested with a 0.04, then you better look at the police report, look at the video closely, and see if your client exhibited any signs of being impaired. If he or she does not exhibit and visible impairment signs then there’s the argument there was no reasonable grounds for the arrest.

Interviewer: Do underage drivers tend to be charged with this offense in a different way than adult DUI offenders??

Dale: The police will follow the same protocol, regardless of the age of the driver. However, if you are a young adult and you’re out driving at 1:00 in the morning, I think you are much more likely to be pulled over than if you’re in your 50’s.

Interviewer: Let’s discuss what agency the BMV is and how they influence the penalties for underage drunk drivers. BMV stands for the Bureau of Motor Vehicles, and you said the penalties could be more severe because the driver will not be able to apply for an occupational license. Is that because the Bureau assumes that it’s not important for underage people to go to work?

Dale: I really don’t know what the thinking is, but you can’t get driving privileges after you’ve been charged with Operating a Vehicle after Underage Consumption until 60 days. It’s a 60-day waiting period.

Interviewer: After the waiting period passes you are able to apply for an occupational license?

Dale: Yes, you can apply for what they call occupational, educational, and medical privileges to go to school, to go work, and to see a doctor.

Interviewer: However, you mentioned that the total period of license suspension could be anywhere from 90 days to two years. Does the situation for these youthful offenders alter if they’re very close to being 21 when they get charged with this offense?

Dale: It is a mitigating circumstance that you could use. I have represented clients that have been two days away from their birthday, even one day away from their birthday.

They started some early celebration of their birthdays. My clients’ birthdays were not until the following weekend, or their birthday’s going to be on Wednesday, so they start celebrating the Saturday before.

Interviewer: That is unfortunate. Mitigating circumstances aside, even if they turn 21 years old during the process, they’ll still be held accountable for same charge?

Dale: It doesn’t make a difference if they reach the age of 21 during their trial.