Juvenile "Zero Tolerance" DUI Law in California: 23136 (VC)

What Is the Legal BAC Limit for Minors in California?

Under California Vehicle Code section 23136 (VC), anyone under the legal drinking age is not permitted to have a Blood Alcohol Content (BAC) above 0.01%. Because drivers under 21 cannot have any alcohol in their system, this law is known as a “Zero Tolerance” law. “Even doing something as seemingly innocuous as drinking kombucha before driving is enough to put a minor over the legal limit,” explains attorney Peter Liss.

While California Vehicle Code 23136 (VC) is the strictest and best-known DUI law for individuals under 21, other laws also apply to underage drivers. Vehicle Code 23140 (VC)² applies when a minor’s BAC is at least 0.05% but less than 0.08%, and imposes more serious penalties. If a minor’s BAC exceeds 0.08%, they face the same charges and penalties as adults under 23152 (VC)³.

While the charges are the same, the court process will vary dramatically based on whether the individual is under 18 or between 18 and 21.

What Are the Penalties for Underage DUIs?

That depends on the driver’s BAC. When a minor’s BAC is 0.04% and below, they will be charged under 23136 (VC) and only face a license suspension.

When their BAC is between 0.05-0.07%, a minor can be charged under 23140 (VC), which is an infraction punishable by only license suspension, fines, and a DUI program. However, at 0.06% and above, the District Attorney may alternatively choose to file misdemeanor charges for driving under the influence of alcohol under 23152(a) (VC), which is a standard adult DUI charge.

Anyone with a BAC of 0.08% or higher will typically face charges under both:

• 23152(a) (VC) for driving while impaired, and
• 23152(b) (VC) for driving with a BAC over the legal limit.

Although both charges may be filed, the driver can only be sentenced for one of these charges.

“In my experience, when a minor has a BAC over 0.06%, San Diego prosecutors almost always file standard adult DUI charges,” says Liss. The good news is that most first-time offenders can avoid jail time and are just sentenced to probation.

Here are the specific penalties that may apply if a minor gets a DUI, based on their BAC:

“While it’s possible to be sent to jail, or juvenile hall in the case of minors under 18, most first offenders are not incarcerated,” explains Liss.

There are some situations where penalties may be increased based on the circumstances of the case. These DUI enhancements include:

• Driving at excessive speeds
• Having a passenger under 18
• Causing a car accident

For more information on potential consequences, visit our DUI penalties page.

Will Your License Be Suspended After an Underage DUI?

All minors charged with driving under the influence will face a driver’s license suspension. To reinstate their license following the suspension, they must obtain expensive “high-risk” SR-22 insurance.

Other DUI penalties for drivers under 21 vary based on the driver’s BAC. For first offenses, the license suspension period will be based on the defendant’s age:

• Juveniles under 17 will lose their license until they turn 18.
• Drivers over 17 but under 21 are subject to a one-year license suspension.

Long-Term Consequences of an Underage DUI

An underage DUI conviction may have other consequences besides those imposed by the court. While it is still possible to apply for federal financial aid programs with a DUI on your record (though felony offenses may limit your options), many private scholarships automatically reject applicants with criminal backgrounds.

Beyond that, many colleges and high schools expel or suspend students charged with DUI for violating their behavioral codes.

While employers are not permitted to blanketly reject job applicants based on previous criminal offenses, they can refuse to hire those convicted of offenses relevant to the position at hand. For example, anyone with a DUI on their record cannot drive for Uber or Lyft.

Likewise, those wishing to join the military with a DUI on their record will first need to obtain a waiver.

What Happens After a Minor Is Arrested for DUI

“When someone under 18 is pulled over for suspicion of driving under the influence of alcohol, they have many of the same rights as adult drivers,” explains Liss. “They are not required to provide information other than their identity, insurance information, and vehicle registration.” They are not legally required to (and typically should not):

• Answer other officer questions, including their origin, destination, and whether they have been drinking
• Take a field sobriety test

On the other hand, if they are requested to take a chemical DUI test, they must submit to the test, or they will be in violation of the state’s Implied Consent Law. “Those who refuse to take these tests are subject to an automatic, mandatory driver’s license suspension,” warns Liss.

Whereas adults over the legal drinking age are not required to take Preliminary Alcohol Screening (PAS) tests (essentially a less sophisticated, hand-held Breathalyzer), minors under 21 are legally required to take PAS tests or face a license suspension.

Those who fail or refuse a DUI test usually receive a court citation. Arrests are rare. Drivers under 18 will go through juvenile court; those over 18 go to adult court.

Where Are Underage DUI Cases Handled?

In San Diego, DUI cases involving juveniles under 18 will be handled in the courthouse in Kearny Mesa. For drivers over 18 but not yet 21, these cases can be handled at any courthouse that handles criminal or traffic cases. Peter Liss’ Vista law offices are conveniently located across the street from the North County Courthouse and jail facility.

The only way to fight the immediate one-year license suspension is to request a DMV hearing within ten days of the DUI. A San Diego underage DUI defense attorney can file the paperwork and represent you or your child in the hearing.

Underage Drug DUIs (DUID) in San Diego

Because there is no legal limit when it comes to using marijuana or other drugs, minors accused of driving under the influence of drugs will face the same DUI penalties as adults. “If a driver is over 18 or has a medical marijuana license,” says Liss, “this is not a legal defense to driving under the influence of marijuana, and making these statements to a police officer will only be used as evidence against them.”

Always refuse to answer officer questions without an attorney present.

See our drug DUIs page for more information.

Can Drivers Under 21 Get a Restricted License?

Adults who receive a DUI can often obtain a restricted driver’s license reasonably easily if they install an ignition interlock device. However, minors rarely qualify for one unless they can show they will face significant hardship from the continued loss of their driver’s license.

For instance, if a 19-year-old is at risk of losing their job and family’s financial stability, or may be forced to discontinue their college education, they may qualify for a restricted driver’s license. However, if they could secure alternative arrangements, such as working or attending school remotely or obtaining similar employment within walking distance, the court is less likely to grant a restricted license.

Even with a legitimate hardship, underage drivers who refuse to take a chemical DUI test are ineligible for a restricted driver’s license.

Defenses Against Juvenile DUI Charges

Even when the case is only an infraction under the Zero Tolerance law, it is always worth fighting the charges with the help of an experienced San Diego defense attorney like Peter Liss. Fighting the charges can prevent a license suspension, avoid higher insurance premiums, and keep a prior offense from appearing on the minor’s DMV and criminal record. There are many defenses to the charges, but some of the best options for underage DUI cases include:

• Fighting the DUI Test Results
• Arguing the Police Violated the Law
• Questioning the qualifications of Drug Recognition Experts in Drug-Related DUIs
• Negotiating a Plea Bargain

For juveniles under 18, an attorney may file a motion for informal supervision, which is similar to an adult diversion program. This option keeps the charge off the minor’s criminal record after probation has been completed, but it does not prevent a license suspension

Find out more options for fighting underage DUI charges on our drunk driving defense page.

Will an Underage DUI Stay on My Record?

Criminal DUI records for juveniles under 18 are usually automatically sealed once probation is completed. Drivers between 18 and 20 typically must apply for expungement in order to clear their records.

Regardless of whether a criminal record is sealed or expunged, DMV driving records remain accessible for 10 years and may count as prior offenses in future DUI cases.

For more information, see our page on DUI expungements.

Other Alcohol-Related Charges for Juveniles

DUI charges are not the only way minors can have their driver’s license suspended. Those under 21 can also lose their driver’s license for drinking and biking, being in possession of alcohol, or having an open alcoholic container in their vehicle. Multiple charges may be filed together.

Why Early Legal Representation Matters in Juvenile DUI Cases

The consequences for these offenses are substantial and may dramatically affect a minor’s future. You only have 10 days to request a DMV hearing to challenge the license suspension. Acting quickly can also maximize your chances of securing a diversion program by giving your attorney as much time as possible to build your defense.

If you or your teen has been accused of driving under the influence in San Diego, contact a skilled underage DUI defense attorney as soon as possible. Lawyer Peter Liss has over 40 years of experience working in the local juvenile court system. With his strong relationships with local police, prosecutors, and judges, he can help secure the best possible outcomes for his clients.

Schedule a free consultation to start building your case by calling (760) 643-4050.