It may seem unlikely that a California driver under 21 years old will get a driving under the influence (DUI) charge since state law sets the minimum drinking age at 21. But given the fact of underage drinking, it should come as no surprise that more than a few underage DUIs are issued every year. While the law sets a much lower blood alcohol concentration (BAC) requirement for young drivers, the consequences are much less severe than for adult drivers with DUIs.
Underage DUIs in California
It isn't legal for persons under the age of 21 to buy or consume alcohol in the state of California. But underage drinking happens in every state. In fact, according to the Centers for Disease Control and Prevention, persons under the age of 21 drink a full 11 percent of all alcohol consumed in the nation. And since it is possible for a teenager to get a driver's license in California, it makes sense that some young drivers would be pulled over for driving under the influence.
In fact, there are more ways for a driver under the age of 21 to get a DUI than for a mature driver. Two specific statutes deal with under-21-year-olds, but a young driver can also be convicted of either of the two regular DUI offenses.
Regular DUI Laws in California
In California, there are two different ways an adult can be prosecuted for driving under the influence of alcohol. Both are found in Vehicle Code Section 23152. Under section (a) of that statute, it is illegal for a person to drive a vehicle while under the influence of alcohol. Section (b) of the same statute makes it illegal for a person to drive a vehicle with 0.08 percent or greater blood alcohol concentration (BAC).
A conviction under either one of these sections counts as a regular DUI in California. The main difference is one of proof. The prosecutor must present evidence of impaired driving to convict under the first section. But if the driver takes a chemical test, such as a breath, blood or urine test that establishes a BAC of 0.08 or greater, the prosecutor need not make any other showing to establish alcohol impairment.
Zero Tolerance Law on Underage DUIs
California Vehicle Code Section 23136 sets out the state's zero tolerance law on underage drinking and driving. Under this statute, it is illegal for a person under the age of 21 to drive a vehicle with a blood alcohol concentration of 0.01 percent or greater. Even a very small amount of alcohol can raise a person's BAC to 0.01 percent, and use of beer, wine or liquor is not a requirement – the statute can be triggered by alcohol in cough syrups or topical mouth numbing ointments, for example.
A young driver cannot avoid the consequences of the zero tolerance law by refusing the breathalyzer test the police officer proposes. While an adult driver has the option of declining to take a chemical test before they are arrested, a driver under the age of 21 does not have that option. According to Shouse Law Group, the law deems California drivers under 21 to have consented to taking a breathalyzer test if they are suspected of drinking and driving. Refusal to do so results in a one-year automatic license suspension as well as ineligibility for a California restricted hardship license.
The zero tolerance statute specifies that it is not intended to replace the regular drunk driving laws for those under 21 years of age. Rather, a driver can be prosecuted under this statute and/or the other DUI statutes.
Zero Tolerance Law Penalties
There are penalties for violating California's zero tolerance law. The good news is that violation of Vehicle Code Section 23136 is not a crime, so an underage driver won't face criminal charges just for this. While violation of the regular DUI laws may be an infraction, a misdemeanor or even a felony depending on the circumstances, violation of the zero tolerance law is simply a civil offense, not a criminal offense. Only administrative penalties apply.
The bad news is that the relevant administrative penalty involves limiting driving privileges through the suspension or revocation of the person’s driver's license, even if they are a first-time offender. This is done without a trial or court appearance. It is an administrative “per se” suspension and therefore no due process rights apply. That means that the penalty happens automatically. The police officer confiscates the person's license when the stop is made and sends it to the department of motor vehicles (DMV), issuing the driver a temporary license good for 30 days. At the end of that period, the one-year suspension begins unless the driver requests a DMV hearing and successfully contests the suspension.
The driver charged with underage DUI can hire a DUI attorney to attend the hearing with them and represent them. If the driver is successful at the DMV hearing, the license will be returned. If the driver does not win at the hearing, their license cannot be reinstated for a year. They will be unable to drive for that period unless they qualify for a restricted hardship license. To qualify, the driver must show that they require a vehicle for travel to school, to work or to a family business that provides part of their family's income.
Read More: What Is the Zero Tolerance Law?
Underage DUI With 0.05 BAC
The second California DUI statute specific to drivers under 21 is found in Vehicle Code Section 23140. This statute makes it illegal for anyone under 21 to drive with a BAC of .05 percent or higher. This is similar to the regular DUI provision, Vehicle Code 23152, except that the BAC is lower.
In addition, rather than being a misdemeanor or a felony crime, it is a low-level crime called an infraction. An infraction conviction cannot result in jail time. However, unlike the zero tolerance DUI, this DUI is still a crime, so the driver will be arrested by the police and their blood alcohol level usually will be confirmed by another chemical test at the police station.
Conviction of the offense of underage DUI with a BAC of 0.05 or higher carries penalties that include license suspension and a fine. For a first offense, the driver's license is suspended for a year, and the fine is $100. Drivers who are over the age of 18 will also be assigned to a mandatory alcohol education program.
Underage Possession of Alcohol
A separate, but related, offense is the state's law regarding underage possession of alcohol. It is illegal under Vehicle Code Section 23224 for a driver under 21 to possess alcohol inside a vehicle. This applies to an open bottle, but also to a fully sealed container unless the young person is accompanied by a responsible adult. However, a young driver is allowed to be in possession of alcohol if they are taking it to throw it away at the request of an adult or transporting it as part of their job.
Underage possession is a crime. It is classified as a misdemeanor and potential penalties include impoundment of the vehicle involved for one month or less, a fine of $1,000 or less, plus a one-year suspension of the person's driver’s license.
Multiple DUI Statute Violations
Generally, a person cannot be convicted of two different DUI offenses for the same behavior. The prosecutor can bring as many charges as they like, if the driving behavior qualifies for two or more different crimes. But the person will be convicted of only one. However, since a zero tolerance violation is not a crime but a civil offense, a driver can be convicted of this in addition to any other DUI.
This is how it would work: If an under-21 driver is driving under the influence with a BAC of 0.50, the person can be charged under Vehicle Code Section 23152(a), which makes it illegal to drive a vehicle while under the influence of alcohol, and also Vehicle Code 21340, underage DUI with a BAC of 0.05 percent. But they can only be convicted of one or the other. They can also be ticketed for a civil offense under the zero tolerance law and charged with the misdemeanor of underage possession if appropriate.
What happens if the underage driver has a BAC of 0.08 percent or higher? If that is the case, the driver can be charged under the regular DUI statute Vehicle Code Section 23152(b), and likely would be. This is a misdemeanor, not an infraction like the underage DUI, and the penalties are correspondingly higher. For a first offense, the young driver could get a license suspension, up to five years of informal probation, a fine of up to $1,000, a stint in a court-approved DUI school and up to six months in county jail.
Defenses to Underage DUI Charges
Anyone charged with a DUI in California has the right to appear and defend themselves, with or without an attorney. However, unless there is an airtight defense like identity theft, defending against a DUI charge can be complicated. Most of the defenses available are the same ones that can be used for adult DUIs.
Common defenses include contesting one of the elements of the charge. For example, a person might defend against a DUI charge by proving that they were not actually driving the car, but were simply sitting in the car waiting for the effects of the alcohol to pass. Proof that the person was not driving would constitute a complete defense to an underage DUI charge.
A person whose BAC is just on the edge of the legal limit might defend against a DUI by pointing to the inherent margin of error in any chemical test. This will not work as well if the driver's BAC is well above the limit. But the driver could still argue that some other error impacted the breath test and made the results unreliable, such as a poorly calibrated machine or operator error.
Read More: 6 Common DUI Defenses in California
Defenses Due to Testing Errors
Similar claims can be made if the BAC was determined by blood tests, which are prone to error. These can include a defense that the blood was not properly drawn or that there were errors in the chain of custody and so the sample may have actually been from someone else.
An experienced DUI attorney may be able to successfully argue that the breath-testing equipment picked up residual mouth alcohol remaining in the mucosal linings of the mouth, contaminating the sample. This could lead to a reading that was false. Use of products like a mouthwash containing alcohol can increase mouth alcohol, as can medical conditions like diabetes or acid reflux.
If the police officer did not behave lawfully, it may provide the driver with a good defense. For example, the police must tell the driver of the consequences of refusing to take a chemical test, and must also read the driver their Miranda rights before any questioning.
Questioning the Legality of the Traffic Stop
Finally, it is possible to question the legality of the traffic stop itself. Police officers cannot just stop a person on a whim or because they are a certain race. If the officers did not have probable cause to believe the driver was committing a crime, the stop may be invalid. Since breath and other chemical tests are only permitted after a lawful traffic stop, the driver may be able to avoid conviction with this argument.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.