DUI DEFENSE LAW — CALIFORNIA
Underage DUI in California — Zero Tolerance Laws for Drivers Under 21
California has a zero tolerance policy for underage drinking and driving. Drivers under 21 with a BAC of 0.01% or higher face license suspension under VC §23136. A BAC of 0.05% triggers criminal charges under VC §23140.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney
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Underage DUI California — At a Glance
- Law / Code
- VC §23136 / VC §23140
- Classification
- Infraction (VC §23136) / Misdemeanor (VC §23140)
- Maximum Penalty
- 1-year license suspension (§23136) / Up to 6 months jail (§23140)
- Probation Eligible
- Yes for misdemeanor
- Strike Offense
- No
- Related Codes
- VC §23136VC §23140VC §23152VC §13353.1
What Is Underage DUI California Under California Law?
Legal Framework. California Vehicle Code section 23136 is the administrative “zero tolerance” law for drivers under 21. It prohibits a person under 21 from driving a motor vehicle while having a blood-alcohol concentration (BAC) of 0.01 percent or greater, as measured by a preliminary alcohol screening (PAS) test or other chemical test. The statute is ordinarily enforced through a Department of Motor Vehicles administrative suspension rather than a criminal court conviction. For this purpose, BAC is based on the alcohol concentration when the person was driving; testing issues therefore matter, including the timing of the sample, the reliability of the device, and whether residual mouth alcohol affected a low result. The law applies even though the BAC is far below California’s general adult DUI limit of 0.08 percent under Vehicle Code section 23152(b).
The Prosecution's Burden. Vehicle Code section 23140 creates a separate underage DUI offense. A person under 21 commits the offense by driving with a BAC of 0.05 percent or more, as measured by a PAS device or other chemical test. Unlike Vehicle Code section 23136, a section 23140 allegation is a criminal infraction, not a misdemeanor or felony wobbler. A conviction can bring a fine, mandatory alcohol education and other court-ordered conditions, and DMV licensing consequences. The prosecutor must prove the driver was under 21, drove a motor vehicle, and had the required BAC at the time of driving. A section 23140 prosecution may be filed alongside, or in lieu of, allegations under Vehicle Code section 23152 if the evidence supports the higher 0.08-percent threshold or an impairment-based DUI theory.
Potential Consequences. The underage statutes operate beside, not instead of, California’s ordinary DUI laws. A driver under 21 may face a Vehicle Code section 23136 DMV action at 0.01 percent or more, an infraction under Vehicle Code section 23140 at 0.05 percent or more, and misdemeanor DUI charges under Vehicle Code section 23152(a) for driving while under the influence or section 23152(b) for a BAC of 0.08 percent or more. The same incident may also create a DMV administrative per se case under Vehicle Code section 13353.1 when the alleged BAC is 0.08 percent or more. Refusing a properly requested PAS test can itself cause consequences for an under-21 driver under Vehicle Code section 23136, while a post-arrest chemical-test refusal may trigger the separate implied-consent rules in Vehicle Code section 23612.
05 — Defense Strategies
How Rubin Law Defends Underage DUI California Charges
Rubin Law, P.C. attacks the elements of VC §23136 / VC §23140 and drives outcomes that avoid conviction where possible.
Challenge the BAC result and its timing
The prosecution in a Vehicle Code section 23140 case must prove a BAC of 0.05 percent or more at the time of driving. A result taken later does not automatically establish the BAC during driving, especially where the reported number is near the statutory threshold. The defense examines the elapsed time, drinking history, food consumption, absorption and elimination evidence, and whether the government can reliably relate the test result back to the driving time. For a Vehicle Code section 23136 DMV case, a 0.01-percent reading also warrants close scrutiny because very small analytical, collection, or timing issues can be outcome-determinative.
U.S. Const. amend. IV
Expose PAS and breath-testing reliability problems
Underage cases often begin with a roadside preliminary alcohol screening device. A PAS result is not beyond challenge. The defense obtains maintenance, calibration, accuracy-check, operator, and test-sequence records and compares them with the arrest report and available body-worn-camera footage. Improper observation before a breath test, residual mouth alcohol, recent use of alcohol-containing products, vomiting, reflux, or an irregular breath sample may distort a low-level reading. The legal question is not whether an officer saw a device display a number; it is whether the test was administered and functioning reliably enough to prove the specific BAC required by Vehicle Code sections 23136 or 23140.
17 CCR §1219.3
Contest the driving or age element
Both Vehicle Code section 23136 and section 23140 require proof that the accused drove a motor vehicle, and both apply only to a person under 21. Those elements can be genuinely disputed in accidents, parked-car investigations, checkpoints, and encounters where officers arrive after the vehicle has stopped. A statement that someone had “been driving” is not always sufficient, particularly if it was obtained without proper advisements during custodial questioning or is contradicted by witnesses, video, vehicle data, or another occupant. The defense also verifies identity and date-of-birth records rather than accepting assumptions about the driver’s age.
NHTSA SFST
Suppress an unlawful stop or detention
An officer needs a lawful basis to stop a vehicle, and a prolonged roadside detention must remain reasonably related to the purpose of the stop or supported by additional facts. A traffic citation, lawful checkpoint procedures, or articulable signs of a violation may justify initial contact; a hunch that a young driver may have consumed alcohol does not. The defense reviews dispatch logs, in-car video, body-worn camera, and the stated reason for the stop. If the stop, checkpoint, detention, or resulting test was unlawful, a motion to suppress under Penal Code section 1538.5 may exclude the evidence on which the criminal allegation depends.
VC §23152
Litigate the DMV case independently and on time
A Vehicle Code section 23136 action has a DMV administrative track that is separate from the criminal court case. The driver ordinarily has only 10 days after receiving the notice of suspension or revocation to request a DMV hearing. At that hearing, the defense can subpoena or cross-examine witnesses, challenge the officer’s sworn report, contest the BAC evidence, and address whether the person was under 21 and drove a motor vehicle. A dismissal or reduction in traffic court does not automatically resolve the DMV matter, and a DMV ruling does not necessarily decide the criminal infraction. Preserving both forums is essential.
17 CCR §1219.1
Seek a disposition that limits long-term consequences
When evidence makes some resolution advisable, the defense focuses on the actual charging level and the client’s licensing, education, employment, and immigration circumstances. A section 23140 violation is an infraction, while a case charged under Vehicle Code section 23152 carries more serious misdemeanor DUI consequences. Relevant mitigation can include an absence of dangerous driving, a very low alleged BAC, voluntary alcohol education, compliance with release conditions, and a clean record. Counsel can use those facts in discussions with the prosecuting agency and in court to seek dismissal where proof is weak or a proportionate alternative where dismissal is not available, without conceding that the test result is valid.
VC §23103.5
Constitutional Sources: Fourth Amendment — U.S. Constitution
Questions
Frequently Asked — Underage DUI California
What happens if I am under 21 and test 0.01% BAC in California?
Vehicle Code section 23136 prohibits a driver under 21 from operating a motor vehicle with a BAC of 0.01 percent or more, measured by a PAS test or other chemical test. This is commonly called California’s zero-tolerance rule, although the statutory threshold is 0.01 percent rather than literal zero. The usual consequence is a DMV administrative suspension or revocation action, not a criminal conviction under section 23136. The notice given after the stop generally starts a 10-day deadline to request a DMV hearing. Do not assume a low number makes the case unwinnable: the accuracy of the test, the testing timeline, the officer’s procedures, and whether you were actually driving can all be disputed.
Is a 0.05% BAC an underage DUI crime in California?
Yes. Vehicle Code section 23140 makes it an infraction for a person under 21 to drive with a BAC of 0.05 percent or more, measured by a PAS test or other chemical test. It is not a misdemeanor or felony by itself, but it is a criminal traffic matter and can carry a fine, court consequences, alcohol education requirements, and DMV licensing consequences. The government still must prove the BAC was at least 0.05 percent when you drove, not merely when you were tested later. A driver under 21 can also face a separate Vehicle Code section 23136 DMV proceeding, and may face misdemeanor charges under Vehicle Code section 23152 if the facts support impairment or a BAC of 0.08 percent or more.
Can I be charged with regular DUI even if my BAC was under 0.08%?
Yes. Vehicle Code section 23152(a) prohibits driving while under the influence of an alcoholic beverage; it does not require proof of a 0.08-percent BAC. The prosecutor must instead prove alcohol impaired your ability to drive with the caution characteristic of a sober person under similar circumstances. For a driver under 21, a BAC of 0.05 percent may support an infraction under Vehicle Code section 23140, but it does not automatically prove impairment under section 23152(a). The officer’s observations, driving pattern, field sobriety tests, statements, video, and expert evidence all matter. Conversely, a low BAC does not eliminate a section 23152(a) allegation if the prosecution claims actual impairment.
Do I have to take a roadside PAS test if I am under 21?
California treats under-21 drivers differently for the preliminary alcohol screening test. Vehicle Code section 23136 authorizes zero-tolerance enforcement using a PAS test or other chemical test, and an under-21 driver who refuses or fails to complete a properly requested PAS test can face DMV consequences. This differs from the general advisory often given to adult drivers that a roadside PAS test may be optional before arrest. The precise legality of the request, the driver’s age, the advisement, and what occurred during the encounter should be reviewed carefully. After a lawful DUI arrest, Vehicle Code section 23612 governs the separate implied-consent obligation to submit to a chemical breath or blood test.
Will an underage DUI affect my license, school, or future job applications?
It can. A Vehicle Code section 23136 finding can result in a DMV suspension or revocation action, and a Vehicle Code section 23140 infraction can produce both court and licensing consequences. A license interruption may affect commuting to school or work, insurance rates, and eligibility for driving-related employment. A section 23140 infraction is not the same as a misdemeanor DUI conviction, but it should not be treated as inconsequential; records, disclosure questions, professional licensing rules, and background-screening practices vary. Students and applicants in regulated fields may have separate reporting obligations. The practical consequences depend on the final disposition, any accompanying Vehicle Code section 23152 charge, prior history, and DMV outcome.
What should I do after an underage DUI arrest or DMV suspension notice in Los Angeles?
Read every document you received, preserve any video, messages, receipts, or witness information relevant to the stop and the time you last consumed alcohol, and note the DMV deadline immediately. A DMV hearing request is generally due within 10 days of service of the suspension or revocation notice; missing it can forfeit the opportunity to contest the administrative action before it takes effect. In Los Angeles County, the court case and the DMV matter are separate, and LAPD or LASD reports, body-worn-camera footage, PAS records, and chemical-test documentation may be important in both. Prompt legal review can identify suppression issues and testing defenses. For a case assessment, call Rubin Law, P.C. at (213) 723-2337.
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