3 Ways A Minor Can Be Charged With DUI

If you are a driver under the age of 21 and are charged or convicted of a DUI, you face different penalties than for those who are 21 and older.

The penalties are separated into 3 categories depending on your Blood Alcohol Concentration level.

•  .01-.04
• .05-.08
• .08 and above

If there are additional circumstances such as prior convictions or injuries those will factor into potential penalties and I will cover that below.

But first, watch this video to understand the differences in a DUI for an underage driver.

Vehicle Code Sections Affecting Minor Drivers

There are 3 different vehicle code sections that you can be charged with if you are arrested for DUI and under 21:

• Vehicle Code 23136
• Vehicle Code 23140
• Vehicle Code 23152

Vehicle Code 23136 (BAC.01) – Zero Tolerance Law

California, like all other states, maintains a zero tolerance policy towards drinking by a minor or driver under the age of 21.

Vehicle Code 23136 makes it a civil offense for anyone under the age of 21 to drive with a blood alcohol concentration (BAC) level of 0.01%¹.

• For adults, the legal limit is at 0.08%.
• For commercial drivers, it is unlawful to drive with a  BAC of 0.04%. 

How Is Your BAC Measured?

Your BAC is measured by either a breath or blood test. You may have the option of a urine test but only under certain conditions.

If you are under the age of 21, you are required to undertake a roadside breath test or PAS, preliminary alcohol screening test, and will be detained and not allowed to drive if any measurable amount of alcohol is detected.

What If You Ate Food With Alcohol Or Your Medications Contain Alcohol?

Minors must be cognizant of anything that they ingest that contains any scintilla of alcohol, including medication, because any measurable amount will subject them to civil penalties affecting their driver’s license. 

Penalty For A BAC Above .01-.04 – Vehicle Code 23136

If you are under 21 and have a BAC of 0.01% or higher², you will lose your driver’s license for one year³.

If your BAC is .05 -.08 the penalties will increase.

What Happens If Your BAC Was .05 – .08?

A Blood Alcohol Concentration from .05 to .08 is prosecuted under Vehicle Code 23140 if you are under 21.

This is considered an infraction and not a criminal offense and will not result in any jail time⁴.

If your PAS test results show any alcohol and especially if it is more than a minimal reading, you will be asked to supply a sample of your breath or blood for testing.

If the results are at least 0.05% and not more than 0.08%, you face the following penalties:

Penalties For Vehicle Code 23140 (BAC .05-.08)

• Loss of your driver’s license for one-year (first offense)
• A fine of $100 (first offense)
• If 18 to 20 years of age, mandatory participation in a DUI class for at least 3-months

Vehicle Code Section 23152(b) (Bac .08+)

If your BAC level is at least 0.08%, you can be convicted under vc 23152(b) of the motor vehicle code that makes it a misdemeanor offense.

As a minor, you could be tried as an adult under the following circumstances:

• If you caused an injury accident or fatality, or
• Have multiple DUI convictions.

If you did cause a serious injury or fatality, then you could face felony DUI charges as well. 

Penalties If your BAC was .08 or above as a Minor

• Loss of driver’s license for one-year
• Fine of $390 to $1,000
• Summary or informal probation for 3-5 years (Juvenile probation for those under 18)
• Mandatory participation in a DUI program for 3-months or 9-months
• Possible jail time of up to 6-months in rare cases and if tried as an adult 
• You may apply for a restricted or ‘critical use” license if you have no alternative means of transportation to your place of employment or school. 

Does It Affect My Penalties At All If I Am Over 18?

No.  All underage drivers are subject to the same set of laws.

Can You Be Charged With Crimes In Addition To A DUI?

Additional charges involving underage drivers and alcohol include:

• Carrying alcohol containers, whether
• Open Alcoholic Container In The Vehicle
• Using a fake ID or the real ID of an older person to obtain alcohol, or
• Ride as a passenger in the car and possess alcoholic beverages.

These offenses can be separate offenses or be compounded with your DUI charge and result in harsher consequences.

Potential Police Missteps

You must keep in mind that there are certain procedures that the police officer must follow in order for the detention and/or arrest for a DUI to be legal.

Some of these procedures include:

• Pulling over the driver only with reasonable suspension,
• Asking the driver to perform field sobriety tests, and
• Administering a Preliminary Alcohol Screening test.

We can help you find a possible misstep in the procedure or police mistake and come up with defenses in consultation with you to possibly lower the penalties of an underage DUI.

Penalty for Refusing a Breath Test

For any of these offenses, if a minor refuses to take the PAS or to provide a more accurate sample by way of a breath or blood test, then he/she faces a one-year suspension of driving privileges.

It is a 2-year suspension if the minor has a prior record of the following:

• chemical testing refusal, or
• At least one prior conviction for a DUI or “wet” reckless under VC § 23103.5.

Can A Minor Get A Restricted Drivers License If They Refused Chemical Testing?

If you refused testing, you are not eligible for a restricted license. 

Do I Have To Report A Conviction Of A DUI On A College Or Job Application?

Yes,  An underage DUI will remain on your record and you are obligated to report it on college or job applications.

Failure to report a DUI conviction could lead to expulsion from school or being fired from a job.

Some colleges will restrict scholarships available to you and some jobs require a special license or certification that you may not qualify for if you have a DUI. If you are convicted of a DUI you can apply for a DUI expungement after fullfilling all your court mandated requirements.

1. California Vehicle Code 23136; Notwithstanding Sections 23152 and 23153, it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical tests, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law. [↩]
2. Vehicle Code 23136(b) A person shall be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years, and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test: California Vehicle Code 23136©1 Any person under the age of 21 years who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person, if lawfully detained for an alleged violation of subdivision; Vehicle Code 23136(2) The testing shall be incidental to a lawful detention and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of subdivision (a). (3) The person shall be told that his or her failure to submit to, or the failure to complete, a preliminary alcohol screening test or other chemical test as requested will result in the suspension or revocation of the person’s privilege to operate a motor vehicle for a period of one year to three years, as provided in Section 13353.1. [↩]
3. Vehicle Code 13353.1(a). [↩]
4. California Vehicle Code 23140; (a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. (b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood. (c) Notwithstanding any provision of law to the contrary, upon a finding that a person has violated this section, the clerk of the court shall prepare within 10 days after the finding and immediately forward to the department an abstract of the record of the court in which the finding is made. That abstract shall be a public record and available for public inspection in the same manner as other records reported under Section 1803. [↩]
5. Vehicle Code 12513 VC; See Also Vehicle Code 13353.8. [↩]
6. Vehicle Code 13353.8 VC. [↩]