Under 21 DUI – California’s Zero Tolerance Laws


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Under 21 DUI – California’s Zero Tolerance Laws

Under 21 DUI – California’s Zero Tolerance Laws

Criminal Conviction for DUIUnder 21 DUI – California’s Zero Tolerance Laws: Minors who are facing an underage DUI face not only a citation, but the additional punishment that is built into the structure of the law itself.  That includes the harsh penalties contained in California’s Zero Tolerance Laws. This page discusses in detail aspects and related punishments from an Under 21 DUI which apply to all Underage DUI cases, or any DUI or possession of alcohol for a Minor.

The law regarding Under 21 DUI – California’s Zero Tolerance Laws

If someone is caught driving under the influence, and they are under age 21, they can be charged with a number of offenses.  That includes the following:

  1. Driving under the influence of alcohol or drugs under 21 -California Vehicle Code Section 23136(a) VC – driving with a blood alcohol level of .01% or higher when under age 21.
  2. Under 21 DUI with a blood alcohol content of 0.05-007 percent, which is illegal under California Vehicle Code Section 23140 VC;
  3. Driving under the influence of alcohol and/or drugs – California Vehicle Code Section 23152(a) VC, which applies to persons under or over 21;
  4. Driving with a blood alcohol content of 0.08 percent or higher – California Vehicle Code Section 23152(b) VC, which applies to persons under or over 21;

How does the law decide what charges to bring?

The law for each crime is different.  Law enforcement, and the prosecutor’s office, usually decides which charges to bring based upon the age, and alcohol level, involved.  Under California law, you cannot be charged with two crimes from the exact same conduct, for double jeopardy reasons, so you can only be charged or convicted of one of the crimes below, with the exception of VC 23136, which is civil in nature, and can be added to any charge of VC 23140, or VC 23152.

Vehicle Code VC 23140  – Driving Under 21 with a Blood Alcohol Level of .05% or greater

VC 23140 – Under 21 DUI – California’s Zero Tolerance Laws – The VC Statute

Vehicle Code 23140 VC reads: “(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.”

VC 23140  Punishment and Penalties

Vehicle code 23140 VC is an infraction, not a misdemeanor or felony DUI.  As an infraction, it cannot carry jail time, and is more of the nature of a traffic ticket.  However, it does have the following penalties by law, if you are convicted of this charge:

  • A fine of $100 or more;
  • Attendance at an alcohol school or alcohol education classes for three months, if you are over 18; and
  • Through the DMV, suspension of your driving privileges for one year.

An underage .01 DUI will also stay on your record, unless it is specifically later cleared through an Orange County expungement; and you might be required to report it on college or job applications.

Proving a VC 23140 charge

Proof of a  VC23140 DUI charge is usually made through a PAS test, or field breathalyzer.  Those are subject to any breath test defenses in a DUI. All that has to be shown is that the person was driving, was under 21, and was .01% or higher for alcohol levels, as tested on the DUI breath test.

VC 23140  Refusal

Refusing a breath test or DUI testing request by any law enforcement when you are under 21 results in an automatic one year suspension of driving privileges.  That can add to the one year suspension for underage DUI, and make your suspension two years, instead of one.

VC 23140  Defenses

Defenses to a VC 23140 charge include that the person was not driving, was not actually under age 21, and that there may have been error in the breath testing machinery.

Also, involuntary intoxication, mouth alcohol in the breath test, and a lack of probable cause for the police stop and arrest or citation, can be used to defend against this charge.  Because Listerine strips, other breath sprays, and over the counter cough syrups and nighttime cold formulas such as Nyquil, contain alcohol, those might create a false positive for alcohol consumption.

Our Orange County DUI lawyers always investigate and examine the calibration and maintenance records for the PAS device or other means of alcohol testing. Because the threshold for license suspension is so low, a PAS device that is calibrated even slightly off may throw off the reliability of the test results, which can make a big difference when the difference is between a 0.0% and a .01%, as in the case of under 21 DUI cases.

VC 23140  and other charges

Vehicle Code VC 23136  “zero tolerance” underage DUI can also be charged. This is a civil penalty, and not a crime.  As a result, it is possible to be both convicted of VC 23140 and also cited for VC 23136.

Vehicle Code VC 23136  “zero tolerance” underage DUI

This law prohibits anyone under 21 from driving with a BAC of 0.01 or above (i.e., with any detectable alcohol in his/her system) as a result of consuming alcoholic beverages.

VC 23136 is not a crime. It is a civil penalty. It was created by California law to have those under age 21 suffer a (1) one-year suspension of the defendant’s driver’s license.

It is common for minors charged with Vehicle Code 23140 (under-21 DUI with a BAC of 0.05 or above), or minors charged with Vehicle Code VC 23140, to also face the penalty under Vehicle Code 23136.

The law – Vehicle Code VC 23136:

(a) 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.

A Vehicle Code 23136 accusation is appropriate to anybody below the age of twenty-one who drives with a blood alcohol concentration (BAC) of at least 0.01% . Those drivers are recognized under California’s “zero tolerance” law for underage DUI. Being accused can lead to your driver’s license being suspended for one year by the California DMV under the under 21 DUI – California’s zero tolerance laws.

Related charges for Underage DUI

Additional charges involving underage drivers and alcohol include a minor carrying or possessing alcohol, whether the container is open or not, in your vehicle.  Also, using a fake ID or the real ID of an older person to obtain alcohol, or even to ride as a passenger in the car and possess alcoholic beverages, can all be illegal..  These offenses can be separate offenses or be compounded with your DUI charge and result in harsher consequences.

California Vehicle Code 23224 VC – Possession of Alcohol in a Vehicle Under Age 21

A closely related law to the DUI under age 21 is VC 23224, possession of alcohol in a vehicle by a person under 21. Under this California aw, people under 21 may not carry alcohol inside a vehicle as an open container, 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.

Vehicle Code 23224 VC Penalties

Violation of Vehicle Code 23224 VC is a misdemeanor, and as a result, carries more serious penalties than an Under 21 DUI under VC 23136 or VC 23140. Penalties include all of the following:

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

Charges of Vehicle Code section 23132 under age 21

In addition to the above, a driver under the age of 21 can still be charged with an under 21 DUI – California’s zero tolerance laws. California Vehicle Code section 23152 VC, allows prosecution just like an adult. The zero tolerance violation will be added to the DUI charge, resulting in the same penalties an adult would face (several thousand dollars in fines, probation, potential jail time or community service, and the mandatory alcohol education program) in addition to the one year license suspension.

How to get your privilege to drive back if you have a suspension- the Critical Need to Drive Application

While the under 21 DUI – California’s zero tolerance laws sets up a harsh punishment for any type of minor DUI, there is the possibility of driving again during the suspension period.

Under Vehicle Code 13353.8 when an order suspending your driving privilege is issued because of any violation of Vehicle Code 23136 (a), the department might lift restrictions on an individual’s driving privilege based on a presentation of a “critical need to drive.”

When you are eligible for the DMV Critical Need to Drive

You are only able to get a critical need to drive license from the DMV, after your license is actually suspended, and only if you do not have any of the following:

  • Priors: Within a decade of the present violation of Vehicle Code 23136, the driver has no other significant record such as have previous APS action or conviction;
  • Refusal: The driver has not been suspended or cancelled for refusing to take a PAS or other chemical test;
  • No actual critical need: The driver has not shown an actual need to drive, or there are other alternatives available to the driver for transportation.

What is considered a critical need to drive?“

The DMV’s  definition of a “Critical need to drive” is looked at in four categories.  You can apply using more than one category.  If approved, you would have a California restricted license, as allowed under Vehicle Code 12513, limited to driving for purposes under one or more of those categories.

The four categories of critical need to drive:

  1. To and from school or work
  2. For family illness
  3. For family enterprise and/or business
  4. For medical purposes (for yourself or for another

An application for Critical Need Restriction, DS 694, must be finished and presented to the Office of Driver Safety Mandatory Actions Unit headquarters, in Sacramento, California. If it is approved, you must pay a reissue fee of one-hundred and twenty five ($125) dollars and submit a California Insurance Proof Certificate, known as a SR 22. Once the application for critical need is approved, the suspension may be lifted and you can get a license to drive under the terms of the critical need application, despite the harsh under 21 DUI – California’s zero tolerance laws.

Critical need application approvals:

You should know that, according to the DMV, most critical need applications are denied.  The DMV considers these licenses to be severely limited, and only granted in extreme need in situations where all other transportation is inadequate. We have had success in detailing our client’s need to drive, and the unavailability of other options, by submitting substantial documentation along with the application, which greatly increases your chances for success.

How an attorney can help with an Underage DUI

We can professionally handle your underage DUI matter, and do everything in our power to minimize the impact of the under 21 DUI – California’s zero tolerance laws on your license and your criminal record.  That may include in many cases fighting the charges to dismissal of the case, or negotiating with the court, or the prosecutor, for a different charge, that avoids the punishment under the charges filed.  We have helped many families facing an under 21 DUI case, and can help you also.

Contact us

Contact us

Contact us today.  We can begin work on a strategy to keep you driving and avoid the long term problems of a mark on your driving record, or a criminal record. The Under 21 DUI – California’s Zero Tolerance Laws do not have to keep you from a record, or from driving, if handled correctly.


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