Under Zero Tolerance Suspensions

Strict Rules for Under 21

Under Zero Tolerance Suspensions

Any motorist under 21 years of age is prohibited from driving with any measurable blood alcohol concentration (“BAC”). Under this “Zero Tolerance” statute, anyone under 21 caught with a BAC of 0.01% or greater will lose their license for a year.

A Zero Tolerance suspension becomes effective 30 days after the motorist is served with the suspension order (usually by a cop making a traffic stop or DUI arrest).

Section 23136 prohibits anyone under 21 years of age from driving with any measurable amount of alcohol in their system. Section 13353.2(a)(2) requires DMV to suspend the license of any motorist found to have been driving with a blood alcohol concentration (“BAC”) of 0.01% or greater.

A DUI Probation suspension lasts one year (Section 13353.3(a)(2)(A)), but the motorist may be eligible for an ignition interlock restricted license after 90 days if they are convicted of DUI as well. (Section 13353.3(a)(2)(B), Section 13352.) In what appears to be a legislative oversight, there is currently no restricted license available for a DUI Probation suspension if the motorist is not also convicted of DUI, as will be the case for most BACs below 0.08%.

Technically, your license is suspended as soon as the police officer confiscates your license and serves you with the Notice of Suspension/Revocation under Section 13380. However, there is a built-in 30-day stay of the suspension to give you time to request a hearing and make the suspension constitutional. Within five business days of the arrest or detention, the police officer must prepare a sworn statement of all the facts supporting the decision to serve the suspension/revocation order. (Section 13380.) (A late-prepared sworn statement may create a defense to the entire case.)

DMV is supposed to conduct an internal review of the report to decide if the suspension/revocation is warranted (Section 13557), but experienced DMV attorneys question whether a meaningful review ever takes place. DMV is supposed to rescind the suspension/revocation unless it finds three facts to be true (Section 13357(b)(3)):

  • The peace officer had reasonable cause to believe the motorist violated the DUI laws;
  • The motorist was placed under arrest or lawfully detained;

The motorist had been driving with a BAC of 0.01% or greater while on DUI probation.
These are the same three issues that DMV must establish if you request a hearing to challenge the suspension (Section 13358(c)(2)), and they are the same three issues that we take to a superior court judge in a writ of mandate action.

VC 13352, VC 13353.2, VC 13353.3, VC 13557, VC 13380, VC 23136

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