How Is an Underage DUI Defined in California?
Under California Vehicle Code Section 23136, there are special sentencing guidelines for those convicted of DUI who were below the state legal drinking age of 21 at the time of the DUI incident.
Any detectable blood-alcohol content at all (practically speaking, this works out to .01% or higher), is enough to form the basis of a DUI conviction. This is called the "Zero Tolerance" policy for underage DUIs. A one-year license suspension is also likely, rather than the four month minimum suspension that is otherwise typically faced for "ordinary" DUI.
Additionally, Vehicle Code 23140 sets a $100 fine, one year long license suspension, and DUI School requirements for underage DUI with .05% BAC or higher.
And finally, it is possible for one under 21 to be charged with "adult DUI" like anyone else plus with illegal possession of alcoholic beverages in a motor vehicle.
Thus, there are a number of different ways underage DUI can be defined and/or prosecuted under California law. Which course is selected by the prosecution will depend on the exact facts of the case.
The Zero Tolerance Law
We can go into more detail now on each possible charge you might face during an underage DUI, having given a basic overview above.
VC 23136 can apply to any underage DUI since it only requires a .01% BAC and the basic facts that you drove a vehicle with that BAC while under the age of 21.
Note that alcohol from sources other than drinks can still make you guilty of VC 23136, the "Zero Tolerance Law." Even if the alcohol came from medicine, for example, it still "counts."
Technically VC 23136 violations are not "criminal," and the only penalty is the one-year license suspension. But this is a severe enough consequence to merit challenging the DUI with the help of a good lawyer.
The PAS, preliminary breath-test, is the means of measuring BAC for the purposes of VC 23136. These PAS tests are not always sufficiently precise, so a .01 or .02 reading could be easily challenged.
Plus, realize that even if you can't avoid conviction, a good lawyer can help you get a restricted license so you can still drive to/from work and school.
Underage Drive with BAC of .05
VC 23140 is more serious than VC 23136, and it takes a BAC of .05 or greater to be convicted. This is what many more precisely call "Underage DUI" in contrast to "Zero Tolerance DUI," though both are underage DUI offenses.
This crime is a mere infraction, rather than a misdemeanor/felony.
Most often, the PAS test will be backed up by another chemical test after your arrest for VC 23140 charges. Often, it's the desktop machine at the local police station that's used for the second chemical test.
As an infraction, .05 Underage DUI can't get you any incarceration time, but it can get you a 12-month license suspension, a $100 fine, and a 3 months or more of mandatory DUI School at your own expense. Thus, these charges are well worth fighting.
Adult DUI Charged to Underage Drinker
A more serious situation arises when an underage DUI is charged as an adult, or "standard," DUI under VC 23152. This would normally happen if your BAC were .08 or higher, but regardless of BAC level, actual impairment due to being under the influence of alcohol can also form the basis of the DUI.
This is a misdemeanor in California, punishable by:
- Up to 6 months in jail.
- 3 to 5 years on probation.
- A license suspension, of 4 months to 1 year for a first offense.
- A fine of $390 to $1,000 - more for repeat offenses.
- 3 to 9 months of DUI School.
- Possible mandatory installation of an IID (ignition interlock device) on your vehicle at your own expense.
Possession of Alcohol in a Vehicle
Given that those under 21 are not allowed to drink alcohol in California, those guilty of an underage DUI also frequently violate VC 23224, which prohibits possession of alcohol in a vehicle by anyone under the legal drinking age.
But, if the alcohol was not opened, is still sealed, and the container is full, you can't be charged under VC 23224.
Possession of an open container of alcohol in your vehicle if under 21 is a misdemeanor, punishable by:
- A 12 month license suspension.
- A fine as high as $1,000.
- A 30-day impoundment of your vehicle.
How Are Underage DUIs Charged?
Given that there are a number of different statutes you can violate with an underage DUI, how will actual charges and penalties be determined?
The answer is, you can be charged with up to 5 separate violations for the same incident:
- .01% Zero Tolerance, VC 23136.
- .05% Underage DUI, VC 23140.
- Actual impairment, VC 23152a.
- BAC of .08% or higher, VC 23152b.
- Possession of open container of alcohol in vehicle if under 21, VC 23224.
In reality, however, you can't get more than one official DUI conviction on your record even if guilty of all 5 of these violations. And the penalties do not simply all add up. But, you could face a one-year license suspension and additional penalties for the open container violation.
Underage DUI Defense Strategies
In most respects, defending against an underage DUI utilizes the same types of defense strategies as used against any other DUI charge, other than if there's a question about if you were really under 21 at the time or of whether you had an open container of alcohol in your car.
Defense strategies include the following:
- You were not driving the vehicle. Maybe a friend was driving and you were riding shotgun, or you lent out your vehicle or it was stolen.
- The breath or blood test equipment malfunctioned, was not properly calibrated and used, wasn't properly maintained or there's no record of its being maintained, or the officer was not trained to use that particular device.
- The BAC results for PAS or another chemical test were within the statistical margin of error.
- You had a still-rising BAC level when tested, so that, your BAC when actually behind the wheel was lower, perhaps below rather than above .08, .05, or .01.
- Mouth alcohol from medicine or mouth wash skewed the test results.
- A medical condition, acid reflux, or a low-carb and/or high-protein diet skewed tests results.
- Your rights were violated in some way. Perhaps, the traffic stop was without probable cause, or the arrest was. Or, you were not read your Miranda Rights, or it was an illegal search/seizure. Or, the arresting officer's words or actions were inappropriate and abusive. In some cases, police may even have planted evidence or filled out a false or incomplete police report.
We at The Law Offices of Ross Howell Sobel are familiar with these and many other possible defense strategies to use against a California DUI charge. We know when to apply each of them and how to find exculpatory or mitigating evidence in your favor.
We have successfully won many other underage DUI cases both pretrial and in trial and at the DMV hearing.
Contact Us Today for Help!
At the Law Offices of Ross Howell Sobel, we stand ready 24/7/365 to answer your call for help. We know how to maximize your chances of winning your underage DUI defense case, and we will fight both skillfully and tenaciously in your behalf from beginning to end.
We have deep experience with all manner of DUI cases, at the DMV and in a courtroom trial. We are familiar with the details of the law and with local San Fernando Valley DMV/court procedures.
Call us anytime 24/7/365 at 818-582-2350, and we can give you a free DUI consultation and get started on winning your case!