Baby Deuces -- 23136 vs. 23140?

[Ultimate86]

Can someone please explain to me the differences between these 2 sections? I have read them over multiple times and notice that the stand out difference is .01% BAC vs. .05% BAC.

Does this mean that I will charge an under 21 driver with one of these 2 sections depending on what their BAC results are on the PAS?

In addition, since they are required to submit to a PAS, do I even need to run through FSTs with them?

[23109]

23136 prior to 2007 was a civil issue with the DMV and could not be charged, however you could serve them a DS-367 and suspend their license.

In 2007 it was ammended and is now an infraction. Basically the difference is if someone who is less than 21 years of age is driving and had been drinking alcohol and blows a .01% to a .04% per 23610 VC they are NOT DUI, however they fall under 23136 VC.

If someone who is less than 21 years of age is drivign and had been drinking alchool and blows a .05% or higher, then 23140 VC applies. It's one or the other.

As far as just using the PAS because they are required to submit to it...well you COULD do that, however if they blow .08% or higher and you hook them for 23152 VC, be prepared to explain yourself if it goes to court. Usually the PAS is the last test administered, if you administer it first then go through FST's, your "objective" signs will most likely get challenged because you have pre-knowledge of what their BAC currently is. Also, if you did not follow Title 17 regulations, chances are your PAS results could get challenged and removed if there is a good defense attorney.

Best thing, run through the FST's and then administer the PAS unless you know for a fact they aren't .08% or higher.

[Ultimate86]

Thank you for your response!

So if I arrest an under 21 driver with a BAC of .08% or above, are they charged with 23152 or 23140?

[23109]

If they are .08% or higher, you charge 23152(a) VC, 23152(b) VC and if you want, you can add on 23140(a) VC.

Personally I'd leave 23140(a) VC off, it's a lesser offense that can be pled to. Let the DA's offer it.

[Ultimate86]

Got it. Thanks again!