California “Underage DUI” – Charges for Juveniles and Minors Under 21

California has two major laws directed at underage driving under the influence:

1. Vehicle Code 23136, California’s “zero tolerance” law (BAC of .01% or higher), and
2. Vehicle Code 23140, underage driving with a BAC of .05% or greater.

Both of these DUI laws apply to juvenile California drivers who are under 21 years of age. Both can result in a one-year suspension of the underage driver’s license.

And both can apply even if the driver’s driving is not actually impaired by alcohol. An underage driver violates these laws simply by driving with the applicable blood alcohol concentration (“BAC”).

Refusing to take a breath test to measure BAC will not help. Refusal to take a California DUI chemical test will result in the driver’s license being suspended for at least one year.¹

Can an underage driver violate California’s “adult” DUI laws?

An underage driver can also be charged with a violation of California’s “standard” (adult) DUI laws if they apply. These laws include:

• Vehicle Code 23152(a), driving under the influence of alcohol and/or drugs,
• Vehicle Code 23152(b), driving with a BAC of .08% or greater,
• Vehicle Code 23152(f), DUI of drugs (“DUID”), and/or
• Vehicle Code 23153, DUI causing injury.

Unlike VC 23126 and 23140, violation of the above laws can result in criminal penalties in addition to a driver’s license suspension.

The following chart sums up California’s main laws that are charged against drivers under 21 who drive while using alcohol and/or drugs:

To help you better understand DUI laws that apply to underage drivers, our California DUI lawyers discuss the following, below:

• 1. VC 23136 — California’s “zero tolerance” law for underage drinking and driving
  • 1.1. Penalty for violation of Vehicle Code 23136 VC
• 2. Vehicle Code 23140 – underage driver with a BAC of .05% or higher
  • 2.1. Penalty for driving with a BAC of .05% or higher
• 3. Vehicle Code 23152 VC – actual impairment or BAC of .08% or higher
  • 3.1. Penalties for standard (“adult”) DUI
• 4. What happens if an underage driver refuses to take a breath test?
• 5. Can a driver challenge the suspension of his/her license?
• 6. Can an underage driver get a “restricted” license?
• 7. Legal defenses to California’s underage drinking and driving laws
• 8. Related offenses to underage drinking and driving
  • 8.1. Vehicle Code 23224 – underage possession of alcohol in a vehicle
  • 8.2. Vehicle Code 23222(b)—driving in possession of marijuana
  • 8.3. Vehicle Code 23221 – driving while drinking or smoking/ingesting marijuana

1. VC 23136 — California’s “zero tolerance” law for underage drinking and driving

Vehicle Code 23136 VC is California’s “zero tolerance” law for juvenile underage drivers. It makes it a civil offense for someone under 21 to drive with a blood alcohol content (“BAC”) of .01% or greater.²

California’s under-21 zero-tolerance law applies to all beverages containing alcohol–not just alcoholic drinks. Even medicines containing alcohol can subject a driver to charges under VC 23136.³

VC 23136 also applies regardless of whether the driver’s driving was actually impaired by alcohol. An underage driver violates this law simply by having any measurable alcohol in his or her system.⁴

1.1. Penalty for violation of Vehicle Code 23136 VC

Violation of VC 23136 is not a crime. The only punishment for violating Vehicle Code 23136 is a mandatory suspension of the underage driver’s license.⁵

The length of the suspension is one year for the first violation of California’s zero-tolerance law for underage driving and drinking. ⁶

The driver’s license can be revoked for two or three years if the defendant has a history of violating California’s drunk driving laws. ⁷

How is BAC measured?

Under Vehicle Code 23136 VC, BAC is measured by a preliminary alcohol screening (PAS) test.⁸

A PAS is a roadside test given on a Breathalyzer or similar device. It measures the alcohol in the driver’s breath and mathematically converts it to a roughly equivalent amount of blood alcohol.

2. Vehicle Code 23140 – underage driver with a BAC of .05% or higher

California Vehicle Code 23140 makes it unlawful for any juvenile under 21 to drive with a BAC of .05% or higher. This is sometimes referred to as “underage DUI.”⁹

After an arrest for underage DUI, BAC will usually be confirmed by a post-arrest DUI chemical test. This will be either:

• A DUI breath test (usually on a desktop machine at the police station), or
• A DUI blood test.¹⁰

Please visit these linked pages for more information on these California DUI chemical tests.

2.1. The penalty for driving with a BAC of .05% or higher

Violation of VC 23140 (underage BAC) is an infraction—a low-level criminal offense similar to a parking ticket.¹¹

As a result, violating California’s underage DUI law will not result in jail time. Rather, penalties under VC 23140 include:

• A one-year suspension of the driver’s license (for a first offense),¹²
• A fine of $100 (for a first offense),¹³ and
• If the driver is at least 18, a mandatory alcohol education program of three months or longer.¹⁴

3. Vehicle Code 23152 VC – actual impairment or BAC of .08% or higher

An underage driver may be charged with a “standard” (adult) DUI if:

• The driver’s driving ability is actually impaired due to alcohol and/or drugs (Vehicle Code 23152(a))¹⁵, or
• The driver had a BAC of .08% or higher (DUI “per se” –Vehicle Code 23152(b)).¹⁶

3.1. Penalties for standard (“adult”) DUI

Violation of VC 23152 is a misdemeanor.¹⁷ If no one is injured, penalties for first-time offenders can include:

• A one-year driver’s license suspension,
• 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
• (In rare cases) up to six months in county jail.¹⁸

Other adult DUI charges an underage driver might be charged with include:

• VC 23152(f)—DUI of drugs (DUID);
• VC 23153—DUI causing injury;
• Penal Code 191.5 PC –Vehicular manslaughter while intoxicated; and even
• Penal Code 187–DUI Murder (a/k/a “Watson Murder).

4. What happens if an underage driver refuses to take a breath test?

Refusal to submit to, or failure to complete, a PAS test or a post-arrest DUI test will result in a driver’s license suspension of at least one year.¹⁹

The department can also revoke the driver’s license for two years or more if the driver has one or more prior convictions for:

• A chemical test refusal, or
• A DUI or a “wet reckless” under Vehicle Code 23103.5.²⁰

5. Can a driver challenge the suspension of his/her license?

Drivers have the right to challenge a suspension of their license (including for a chemical test refusal). To do so, they must request a license suspension hearing from the California Department of Motor Vehicles.²¹

Such a hearing is not automatic. The driver must request it within 10 days of being cited for VC 23136 or a chemical test refusal.²²

The hearing will usually be conducted by phone unless the driver requests that it be in person.

An attorney can represent the driver at the hearing and can usually handle it entirely on the driver’s behalf.

What happens after the hearing?

If the driver wins at the DMV hearing, the suspension or revocation of the license will be canceled.

But even if the driver loses the hearing, all is not necessarily lost. The driver may then:

• Request a restricted “critical use” license (unless the suspension resulted from a chemical test refusal),²³ or
• Appeal the hearing officer’s decision (by submitting a written request and a payment of $120 within 15 days of the effective date of the notice of the hearing officer’s decision).²⁴

At the end of a license suspension, a driver can get his or her license reinstated by:

• Paying a $125 reissue fee to the DMV,²⁵
• Filing an SR-22 proof of financial responsibility,²⁶
• Maintaining proof of financial responsibility for three years.

6. Can an underage driver get a “restricted” license?

An underage driver who loses at a DMV hearing may be able to get a “restricted hardship / critical use license.” This is a special license that is similar to a “learner’s permit.”²⁷

It allows the underage driver to drive to and from work or school if no other transportation is available.²⁸

But such a license is not available if the reason for the suspension was a refusal to take a chemical test.²⁹

7. Legal defenses to California’s underage drinking and driving laws

There are numerous defenses that drivers can raise to fight California underage DUI charges.

Some of the most common DUI defenses include taking the position that:

• The defendant didn’t actually drive (the “no driving” defense);
• There was no probable cause for a traffic stop or DUI arrest;
• The officer failed to advise the driver fully and clearly of his or her rights.
• The DUI testing equipment wasn’t working properly;
• The officer and/or person doing the DUI chemical test didn’t follow proper California DUI chemical test procedures;
• Results of the DUI test were within the margin of error for an acceptable BAC result;
• The driver had “rising blood alcohol” at the time of the DUI test (meaning his/her BAC was actually lower at the time of driving);
• There was alcohol in the driver’s mouth from another source (such as mouthwash);
• The driver had a medical condition such as GERD or acid reflux;
• The driver was on a high protein / low carbohydrate diet that may have “tricked” the chemical test.

For more information, please see the articles linked to above or visit our page on the “Top 10 Legal Defenses for Fighting a California DUI Charge.”

8. Related offenses to underage drinking and driving

Certain additional Vehicle Code violations are often charged along with underage drinking and driving. Some of the more common include:

8.1. Vehicle Code 23224 – underage possession of alcohol in a vehicle

Underage drivers are often charged with Vehicle Code 23224, possession of alcohol in a vehicle by a person under 21.

VC 23224 prohibits people under 21 from carrying alcohol inside a vehicle unless:

1. The container is full, sealed, and unopened, AND
2. The minor is:

• Accompanied by a parent or other specified adult, OR
• Getting rid of the alcohol pursuant to the instructions of a parent or specified adult, OR
• Carrying the alcohol as part of the minor’s job working for someone with a legitimate liquor license.³⁰

Violation of VC 23224 VC is a misdemeanor. Penalties can include:

• Impoundment of the driver’s vehicle for up to 30 days,
• A fine of up to $1,000, and
• A one-year suspension of the driver’s license.³¹

8.2 Vehicle Code 23222(b)—driving in possession of marijuana

Minors who drive with weed in the car can be charged with Vehicle Code 23222(b), driving in possession of marijuana.

VC 23222(b) is California’s “open container” law for marijuana. It makes it unlawful to drive while in possession of any marijuana that is:

• Not in a container, or
• In a container that has been opened or has a seal broken.³²

Violation of California’s open container law for marijuana is an infraction. It can be punished by a fine of up to one hundred dollars ($100).³³

8.3 Vehicle Code 23221 – driving while drinking or smoking/ingesting marijuana

VC 23221 is California’s law against drinking or smoking marijuana while driving. Violation of this law is an infraction.³⁴

Someone violates VC 23221 when, while a passenger in a moving motor vehicle, he or she:

• Drinks alcohol, or
• Uses/consumes marijuana .³⁵

A first offense for drinking or using marijuana in a vehicle can be punished by a fine of up to $100.³⁶

Arrested for a California DUI? Call us for help…

If you or a loved one has been charged with violating California’s underage drinking and driving laws, we invite you to call us for a free consultation.

Call us to speak to an experienced California DUI lawyer about your case.

We have local California criminal law offices in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and many nearby cities.

Our Las Vegas and Reno offices also offer services to people charged with violating Nevada’s laws on underage drinking and driving.

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

Legal references:

1. Vehicle Code 13353.1 (a): “If a person refuses an officer’s request to submit to, or fails to complete, a preliminary alcohol screening test pursuant to Section 13388 or 13389, upon the receipt of the officer’s sworn statement, submitted pursuant to Section 13380, that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136 or 23154, and that the person had refused to submit to, or did not complete, the test after being requested by the officer, the department shall do one of the following: (1) Suspend the person’s privilege to operate a motor vehicle for a period of one year…
2. Vehicle Code 23136 VC: “(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. (c) (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 (a). (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. Bobus v. Department of Motor Vehicles (2004) 125 Cal.App.4th 680, 23 Cal.Rptr.3d 168, as modified, review denied.
4. Vehicle Code 23136(a), endnote 2.
5. Vehicle Code 23136(c)(3), endnote 2. See also Vehicle Code 13353.1 VC, endnote 1.
6. VC 13353.1(a), endnote 1.
7. Same.
8. Vehicle Code 23136(a), endnote 2.
9. Vehicle Code 23140 VC: “(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.
10. Vehicle Code 23612(a) (1) (A): “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.”See also Vehicle Code 23612(a) (2) (A): “If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.”
11. Vehicle Code 42001: “(a) Except as provided in this code, a person convicted of an infraction for a violation of this code or of a local ordinance adopted pursuant to this code shall be punished as follows: (1) By a fine not exceeding one hundred dollars ($100). (2) For a second infraction occurring within one year of a prior infraction that resulted in a conviction, a fine not exceeding two hundred dollars ($200). (3) For a third or subsequent infraction occurring within one year of two or more prior infractions that resulted in convictions, a fine not exceeding two hundred fifty dollars ($250).”
12. Vehicle Code 13352.6(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, upon the 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. (b) For the purposes of this section, enrollment, participation, and completion of the program shall be subsequent to the date of the current violation. Credit for enrollment, participation, or completion may not be given for any program activities completed prior to the date of the current violation.”
13. Vehicle Code 42001 (a)(1), endnote 11.
14. Vehicle Code 13352.6, endnote 12.
15. Vehicle Code 23152(a): “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.”
16. Vehicle Code 23152 (b): “It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle…”
17. Vehicle Code 23536(a): “If a person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, nor more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000).” See also Penal Code 17(a): “A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”
18. See Vehicle Code sections 23536 – 23548 for California misdemeanor DUI penalties.
19. Vehicle Code 13353.1(a), endnote 1.
20. Same.
21. See Vehicle Code 14100 and subsequent sections.
22. Vehicle Code 14100(a).
23. Vehicle Code 13353.8 VC.
24. Vehicle Code 14105.5 [15-day period]; Vehicle Code 14907 [fee].
25. Vehicle Code 14905.
26. Vehicle Code 16430 VC.
27. See Vehicle Code 12513 VC.
28. Same. See also Vehicle Code 13353.8 VC.
29. Vehicle Code 13353.8 VC.
30. Vehicle Code 23224 VC.
31. Same, subsections (c) – (e).
32. Vehicle Code 23222(a): “No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.”
33. Vehicle Code 23222(b) (1): “Except as authorized by law, every person who has in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any receptacle containing any cannabis or cannabis products, as defined by Section 11018.1 of the Health and Safety Code, which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”
34. Vehicle Code 23221(a): “A driver shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while driving a motor vehicle upon a highway.”
35. Vehicle Code 23221(b): “A passenger shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while in a motor vehicle being driven upon a highway.”
36. Vehicle Code 23221 (c): “A violation of this section shall be punished as an infraction.”See also Vehicle Code 42001(a), endnote 11.