California DUI Charges for Minors Under 21

California has two major laws on underage drinking and driving.

Vehicle Code 23136 VC applies to anyone under the age of twenty-one (21) who drives with a blood alcohol content ("BAC") of .01% or greater. VC 23136 is known as California' "zero tolerance" law for underage DUI and can result in a one-year suspension of your driver’s license.

Vehicle Code 23140 VC applies to underage (under 21) driving with a BAC of .05% or greater. (In contrast, drivers who are 21 and over need a BAC of .08% to be considered per se DUI.)

VC 23140 is a California infraction and can result in fines of up to one hundred dollars ($100), in addition to a one-year suspension of your driver's license and mandatory DUI school.

In addition, under-21 drivers in California can be charged with standard ("adult") DUI or with possession of alcohol in a vehicle. 

The major underage DUI laws in California, and the penalties for each, are:

Underage DUI Offense

Vehicle Code Section

BAC Required

Penalties

“Zero tolerance” underage DUI

VC 23136

.01%

One-year driver's license suspension

Underage DUI

VC 23140

.05%

One-year driver's license suspension; $100 fine; mandatory alcohol education program

Standard (“adult”) DUI

VC 23152(b)

.08%

Driver's license suspension; 3 to 5 years of misdemeanor probation; $390-$1000 fine; mandatory alcohol education program; up to 6 months in county jail

Standard (“adult”) DUI

VC 23152(a)

N/A (subjective standard for “driving under the influence”)

Driver's license suspension; 3 to 5 years of misdemeanor probation; $390-$1000 fine; mandatory alcohol education program; up to 6 months in county jail

Possession of alcohol in a vehicle by person under 21

VC 23224

N/A

One-year driver's license suspension; up to $1000 fine; vehicle impoundment for up to 30 days

Underage DUI offense

Penalties

VC 23136 “zero tolerance” underage DUI

One-year driver's license suspension

VC 23140 underage DUI with a BAC of .05

One-year driver's license suspension; $100 fine; mandatory alcohol education program

VC 23152(b) adult DUI with a BAC of .08

Driver's license suspension; 3 to 5 years of misdemeanor probation; $390-$1000 fine; mandatory alcohol education program; up to 6 months in county jail

VC 23152(a) driving under the influence

Driver's license suspension; 3 to 5 years of misdemeanor probation; $390-$1000 fine; mandatory alcohol education program; up to 6 months in county jail

VC 23224 underage possession of alcohol in a vehicle

One-year driver's license suspension; up to $1000 fine; vehicle impoundment for up to 30 days

Below, our California DUI defense attorneys discuss these California underage DUI laws in more detail.

Vehicle Code 23136 VC – California's “Zero Tolerance” Law

Vehicle Code 23156 VC is California's “zero tolerance” law for underage drivers.

You violate VC 23136 when:

  1. You are under the age of twenty-one (21), and
  2. You drive with a blood alcohol content ("BAC") of 0.01% or greater.1

California's zero tolerance law for under 21 DUI applies to alcohol from any source--not just alcoholic drinks. Even medicines containing alcohol can subject you to a violation of VC 23136.2

Stop-sign-reading-DUI
Vehicle Code 23140 VC establishes a lower threshold BAC (0.05 instead of 0.08) for drivers under 21.

Under Vehicle Code 23136 VC, BAC is measured by a preliminary alcohol screening (PAS) test.3 A PAS is a roadside test given on a Breathalyzer or similar device. It measures the alcohol in your breath and mathematically converts it to the roughly equivalent amount of alcohol in your blood.

VC 23136 under-21 DUI is not a crime. The sole penalty is a one-year suspension of your driver's license by the California DMV.4

However, you still should strongly consider hiring a DUI defense attorney to assist you if you are facing a license suspension for VC 23136 underage DUI, for two reasons.

First, you have the right to challenge your license suspension at a California DMV hearing. An attorney can represent you at the hearing and often can handle it entirely on your behalf.5  If your attorney helps you win your DMV hearing, the suspension will be cancelled.6

Second, even if you do lose your license, your attorney can help you obtain a "restricted hardship license" for the period of your suspension. This is a special license that will enable you to drive to work, school or a family business if no other transportation is available.7

Vehicle Code 23140 VC – Underage Driver with a BAC of .05% or Higher

California Vehicle Code 23140 VC makes it an infraction for anyone under 21 to drive with a BAC of .05% or higher. This is sometimes referred to as “underage DUI.”8

If you are arrested for underage DUI in California, your BAC will usually be confirmed by a DUI post-arrest chemical test. This will be either another breath test – mostly likely on a desktop machine at the police station – or a DUI blood test.

Man-taking-DUI-breathalyzer-test
In most VC 23140 cases, BAC is measured by a post-arrest blood or breath chemical test.

An infraction such as VC 23140 under-21 DUI does not result in jail time. Rather, a violation of VC 23140 subjects you to:

  • A one-year suspension of your driver's license (for a first offense),9
  • A fine of $100 (for a first offense), and
  • If you are 18 or over, a mandatory alcohol education program of three months or longer.10

Vehicle Code 23152 VC – Actual Impairment, or BAC of .08% or Higher

Regardless of your age, you may be charged with “standard” (adult) DUI under VC 23152 if:

Standard DUI is a misdemeanor under California law and thus carries more serious DUI penalties than the under-21 DUI laws described above. Penalties for first-time offenders include:

  • Suspension of your driver's license,
  • Three to five years of informal (“summary”) probation,
  • Fines of $390 to $1,000,
  • A 3-month or 9-month alcohol and/or drug education program, and
  • Up to six months in custody.

Vehicle Code 23224 VC – Possession of Alcohol in a Vehicle by Person under 21

A closely related law to under-21 DUI is VC 23224 possession of alcohol in a vehicle by a person under 21.

Under this California open container law, people under 21 may not carry alcohol inside a vehicle unless:

  • the container is full, sealed, and unopened, and
  • they are:
    • accompanied by a parent or other specified adult,
    • getting rid of the alcohol because their parent or such an adult told them to, or
    • carrying it as part of their job working for someone with a legitimate liquor license.12

Violation of Vehicle Code 23224 VC is a misdemeanor (and thus carries more serious penalties than underage DUI under VC 23136 and VC 23140). Penalties can include:

  • Impoundment of your vehicle for up to 30 days,
  • A fine of up to $1,000, and
  • A one-year suspension of your driver's license.13 

The example below illustrates the way in which all of California's underage DUI laws interact.

Example: 19-year old Zack is pulled over after weaving between lanes. His speech is slurred and he fumbles his driver's license and registration. He has an open bottle of Jack Daniels in his car.

The officer arrests Zack for drunk driving and possession of open alcohol in his vehicle. A preliminary alcohol screening (PAS) breathalyzer test shows Zack's BAC at .09%. Zack is then charged under all five of the possibly applicable DUI and under-21 DUI laws:

  1. California's zero tolerance law, Vehicle Code 23136 (because his BAC is .01% or greater),
  2. Vehicle Code 23140 (because his BAC is .05% or greater),
  3. Vehicle Code 23152(a) (because the weaving suggests his driving was impaired),
  4. Vehicle Code 23152(b) (because his BAC is .08% or greater), and
  5. Vehicle Code 23224 (because he had an open container of Jack Daniels in the car).

The good news for Zack is that even if he is found guilty of violating more than one of the DUI or under-21 DUI laws (examples 2-4 above), it will only count as one DUI conviction.

But the bad news is that Zack will still be subject to:

  • suspension of his driver's license under California's zero tolerance law, and
  • a separate conviction if he is found guilty of having an open container of alcohol in his car.

How Can I Fight Charges of Underage Drinking and Driving?

There are numerous defenses that can be raised to fight California DUI charges, including charges of DUI while under 21.

Some of the more common DUI and underage DUI defenses are:

  • You weren't driving;
  • The DUI testing equipment wasn't working properly;
  • The person doing your DUI chemical test didn't follow proper procedures;
  • You were within the margin of error for an acceptable BAC result;
  • Your blood alcohol was still rising at the time of your test (meaning your BAC was actually lower when you were driving);
  • There was alcohol in your mouth from another source (such as mouthwash);
  • You had a medical condition such as GERD or acid reflux;
  • You were on a high protein / low carbohydrate diet;
  • Your traffic stop was unlawful;
  • Your arrest was unlawful; and
  • The officer failed to advise you fully and clearly of your rights.

Our DUI defense attorneys include former cops and prosecutors. We have seen how underage DUI offenses affect a young person's life. We're here to help.

Call us for help...

For more information about California's under-21 DUI laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's DUI laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

¿Habla español? Visite nuestro sitio Web en español sobre las leyes de DUI de menores en California.


Legal References:

  1.  California Vehicle Code 23136 VC -- Zero tolerance underage DUI. "((a) 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. (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…")
  2. Bobus v. Department of Motor Vehicles (2004) 125 Cal.App.4th 680, 23 Cal.Rptr.3d 168, as modified, review denied.
  3. California Vehicle Code 23136(a) VC -- Zero tolerance underage DUI, endnote 1.
  4. California DMV Facts about California's Zero Tolerance Law.
  5.  Same.
  6.  See California DMV, Information about California Driver Safety Administrative Hearings.
  7.  California DMV Facts about California's Zero Tolerance Law, endnote 4.
  8. California Vehicle Code 23140 VC -- Under 21 DUI with a BAC of 0.05 or above. "(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."
  9. California Vehicle Code 42001.25 VC -- Punishment for under 21 DUI with a BAC of 0.05 or above.  ("Notwithstanding any other provision of law, a person who violates Section 23140 is punishable as follows: (a) By a fine of one hundred dollars ($100). (b) For a second infraction occurring within one year of a prior infraction that resulted in a conviction, a fine of two hundred dollars ($200). (c) For a third or any subsequent infraction occurring within one year of two or more prior infractions that resulted in convictions, a fine of three hundred dollars ($300).")
  10. California Vehicle Code 13352.6 VC. ("(a) The department shall immediately suspend the driving privilege of a person who is 18 years of age or older and is convicted of a violation of Section 23140 [underage DUI with a BAC of 0.05 or above], upon receipt of a duly certified abstract of the record of a court showing that conviction. The privilege may not be reinstated until the person provides the department with proof of financial responsibility and until proof satisfactory to the department, of successful completion of a driving-under-the-influence program licensed under Section 11836 of the Health and Safety Code has been received in the department's headquarters. That attendance shall be as follows:(1) If, within 10 years of the current violation of Section 23140, the person has not been convicted of a separate violation of Section 23140, 23152, or 23153, or of Section 23103, with a plea of guilty under Section 23103.5, or of Section 655 of the Harbors and Navigation Code, or of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, the person shall complete, at a minimum, the education component of that licensed driving-under-the-influence program. (2) If the person does not meet the requirements of paragraph (1), the person shall complete, at a minimum, the program described in paragraph (1) of subdivision (c) of Section 11837 of the Health and Safety Code.")
  11. See California Vehicle Code 23152 VC: section (a) [driving under the influence of alcohol]; section (b) driving with a BAC of .08% or greater; section (c) driving under the influence of drugs; and section (d) driving under the combined influence of alcohol and drugs [compare to VC 23136 and VC 23140, California's underage DUI laws].
  12. California Vehicle Code 23224 VC -- Related offense to California under-21 DUI. ("(a) No person under the age of 21 years shall knowingly drive any motor vehicle carrying any alcoholic beverage, unless the person is accompanied by a parent, responsible adult relative, any other adult designated by the parent, or legal guardian for the purpose of transportation of an alcoholic beverage, or is employed by a licensee under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code), and is driving the motor vehicle during regular hours and in the course of the person's employment. If the driver was unaccompanied, he or she shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage. (b) No passenger in any motor vehicle who is under the age of 21 years shall knowingly possess or have under that person's control any alcoholic beverage, unless the passenger is accompanied by a parent, legal guardian, responsible adult relative, any other adult designated by the parent, or legal guardian for the purpose of transportation of an alcoholic beverage, or is employed by a licensee under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code), and possession or control is during regular hours and in the course of the passenger's employment. If the passenger was unaccompanied, he or she shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative or adult designee relating to disposition of the alcoholic beverage.")
  13. California Vehicle Code 23224 VC -- Related offense to California under-21 DUI. ("(c) If the vehicle used in any violation of subdivision (a) or (b) is registered to an offender who is under the age of 21 years, the vehicle may be impounded at the owner's expense for not less than one day nor more than 30 days for each violation. . . . (e) Any person convicted for a violation of subdivision (a) or (b) is guilty of a misdemeanor and shall be punished upon conviction by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the county jail for not more than six months, or by both that fine and imprisonment.")

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