DUI Under 21: Three Vehicle Code Sections You Can Be Charged With

This Guide Will Outline Vehicle Code 23136, VC 23140 & VC 23152 For Minors.

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. Because individuals under the age of 21 cannot drink legally, this is factored into the penalties that young drivers have to cope with if they are driving with any appreciable amount of alcohol in their system. 

California’s 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. As noted above, if you have any measurable level of alcohol in your blood, you are in violation and risk loss of your driver’s license for at least one-year. This policy is embodied in CVC § 23136 where it is a civil violation if your BAC is 0.01%.

There is no presumption that you are under the influence of alcohol under the zero tolerance policy and no need to do so, since it is not a crime for a minor to be driving with a BAC of 0.01%, or even if it is under 0.08%. The law does punish a minor even if the BAC result was due to ingesting any medication or food containing alcohol and then driving even though you were unaware that you had ingested the substance containing the alcohol.

Vehicle Code Sections Affecting Minor Drivers

There are 3 different code sections that you can be charged with if you are under 21:

Vehicle Code 23136

Unlike its adult counterpart, this section 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%. 

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. However, unlike adults or those drivers on DUI probation, 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.

It is highly unlikely that anyone with a BAC at this low level would feel any effects of any alcohol, but it applies regardless. 

Food Containing Alcohol or Medications

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

Penalty For Vehicle Code 23136

If you are under 21 and have a BAC of 0.01% or higher, you will lose your driver’s license for one year2. 

California Vehicle Code Section 23140

This section applies if you are under 21 and have a BAC between 0.05% and 0.08%. This is considered an infraction and not a criminal offense and will not result in any jail time3.

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%, the penalties are:

Penalty For Vehicle Code 23140
  • 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

California Vehicle Code Section 23152

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. Your penalties include:

Penalty For Vehicle Code 23152

As a minor, you could be tried as an adult and will face such a likelihood 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. 

Additional Charges

Additional charges involving underage drivers and alcohol include carrying alcohol containers, whether open or not, in your car, 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.  A knowledgeable local California DUI attorney can help you find a possible misstep in the procedure or police mistake and come up with many defenses to lower the charges of an underage DUI or penalties.

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

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

Can an Underage Driver Get a Restricted License?

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. To do so, you will need to obtain SR-22 insurance on a parent’s auto insurance if you are under 18. SR-22 is proof of financial responsibility or insurance so that if you do get into an accident, you have sufficient liability coverage for property damage and injury claims. SR-22 proof is also required in order to have your license suspension lifted. 

Additonal Underage Drivers FAQs

Does it affect my penalties at all if I am over 18?

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

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.  However, it does not necessarily mean that you will not be accepted to a college or 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.  Either way, having to report a DUI on an application can be an embarrassing or limiting issue that you would face for the rest of your life.

Next Steps If You Need Help

If you have been arrested and would like to learn more about how attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Get Legal Help

Request A Free Consultation 818-351-9555 

Footnotes

  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 test, 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. 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. []

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