According to California VC 23136, it’s an offense for a person below 21 years to operate a vehicle with a (BAC) of 0.01% or more. This law is applicable to all beverages that have alcohol content. The law is not limited to alcoholic beverages. Medications with alcohol content could make a driver face underage DUI charges. The California VC 23140 makes it an offense for a driver below 21 years to operate a vehicle with a BAC of 0.05% or more. This statute is commonly referred to as underage DUI. If you or a loved one is facing charges for underage DUI, the San Jose Criminal Attorney Law Firm can help you create a convincing defense to fight the charges.

Vehicle Code 23136 and Vehicle Code 23140

You may violate the California VC 23136 on zero tolerance law for underage driving and drinking irrespective of whether your drinking was impaired or compromised by alcohol or not. As long as you have measurable alcohol content in your blood, you may violate the zero-tolerance law even if the BAC is below the legal limit. Violation of California zero-tolerance laws is not a criminal offense. However, the violation could result in the suspension of your driver's license. The California DMB may suspend your driver's license for one year when you commit the first offense under VC 23136. However, if you have a history of violating the California zero-tolerance laws, a subsequent violation could lead to suspension of your driver's license for two to three years.

When determining the level of intoxication, the law enforcement officers conduct a PAS (preliminary alcohol screening) test. The police administer the PAS test at the roadside using a device that is similar to a Breathalyzer machine. The machine detects the alcohol content in a driver's blood and converts it into an equivalent blood alcohol measure.

After an arrest for underage DUI, the police confirm the intoxication using a DUI chemical test. The police may conduct a breath test or a blood test to confirm whether a driver is intoxicated.

A DUI Breath Test

The law enforcement officers in California rely on two breath tests to establish the level of intoxication in drivers:

  • A roadside preliminary alcohol testing is usually administered during a DUI investigation or a traffic stop.
  • An evidentiary breath test is usually conducted after a DUI arrest. In most cases, this test takes place on a desktop device at the police station. However, this is not always the case because the police may also administer the test at a DUI checkpoint. At a DUI checkpoint, the officer administers the test on a mobile police unit.

The law does not require persons above the age of 21 years to submit to a PAS test. However, for an underage driver below 21 years, refusing to submit to a PAS test is equivalent to chemical test refusal. Whether you are convicted of DUI or not, refusing to submit to a PAS test will result in the suspension of your driver's license below 21 years. A PAS test serves as a form of field sobriety test. It helps the police determine whether to arrest an underage driver for driving under


A post-arrest or evidentiary DUI test is mandatory for all drivers who have been lawfully arrested for DUI in California. The police have to conduct this test even if a driver has submitted it to a PAS test.

DUI Blood Test

Drivers always have the chance to choose between a breath test and a DUI blood test. However, under certain circumstances, a driver does not have the opportunity to choose between a breath test and a DUI blood test:

  • If the police have a reasonable cause to believe that a driver is under the influence of drugs. It’s hard to detect a drug intoxication through a breath test. Therefore, if the police suspect a case of intoxication with drugs, they may recommend a DUI blood test.
  • If a driver is unconscious or deceased, the police may administer a DUI blood test instead of a breath test.
  • If an underage driver is admitted to a medical facility where breath test equipment is not available, the police may have no choice but to conduct a DUI blood test.

When allowed to choose between a breath test and a DUI blood test, most people go for a DUI breath test. Compared to a blood test, a breath test is less invasive and also delivers fast results.

Some drivers may not be able to submit to a DUI breath test. For instance, drivers with medical conditions like emphysema or asthma may have difficulty submitting to a DUI breath test.

Penalties for Underage DUI under PC 23140

The violation of California VC 23140 is a California infraction. This is a lesser offense compared to California's felony and misdemeanor offenses. You’ll not face jail time for violating California’s laws on underage DUI. However, a violation of VC 23140 will attract other penalties. The typical penalties for underage DUI under California law are:

  • Suspension of your driver’s license for one year after committing the first violation
  • For a first-time offense, you may also pay a fine that does not exceed $100
  • If you have attained the age of 18 years, the court may impose a compulsory alcohol and drug education program for 3 months or more

Underage Drivers Charged with Standard or Adult DUI

In some instances, an underage driver may also face standard DUI charges. A driver may face charges under the California VC 23152 (a) if their ability is impaired or weakened due to intoxication. A driver may also face charges under VC 23152 (b) if he or she has a BAC of 0.08% or more. If the prosecutor charges you with standard adult DUI, the offense is a California misdemeanor. If you commit the first standard DUI offense and there are injuries, the penalties are:

  • A suspension of your driver’s license for one year
  • A summary or misdemeanor probation for a period of 3 to 5 years
  • Fines that may range between $390 and $1000
  • A drug and alcohol education program that may last between 3 months and nine months
  • In some rare cases, the court may impose a jail time that does not exceed six months

Other Adult or Standard DUI Charges that an Underage Driver May Face

A driver may also face additional adult DUI charges, which include:

  • DUID (DUI of drugs) under the California VC23152 (f)
  • DUI causing injury under VC 23153
  • Vehicular manslaughter under the influence as outlined by California PC 191.5
  • DUI murder or Watson murder under the California PC 187

Refusing to Take a Breath Test

What would happen if a driver fails to submit to a DUI breath test? Failure to submit to preliminary alcohol testing (PAS) or a post-arrest test would result in the suspension of your driver's license for a minimum of one year.

The California Department of motor vehicles may suspend your license for 2 years or even more. The more prolonged license suspense may apply if a driver has a prior one or multiple convictions for:

  • Refusing to submit to a DUI chemical test
  • A wet reckless conviction under the California VC 23103.5 or a previous DUI conviction

Challenging Suspension of a Driver’s License

After the suspension of your driver's license, you have a right to challenge the suspension. You can still challenge the license suspension resulting from a DUI chemical test refusal. For you to be able to challenge the suspension of your driver's license, you have to request a DMV hearing to discuss your license suspension.

It’s important to note that the DMV hearing is not guaranteed or automatic. Therefore, you need the assistance of an attorney who can guide you through the process of choosing a session with the Department of Motor Vehicles. You have to request a DMV hearing within ten days of the suspension of your driver's license or after refusing to undergo a chemical test.

In most cases, the hearing takes place through the phone. However, you may request to have the hearing in person. You don’t have to personally attend the license suspension hearing. Your attorney can attend the DMV hearing and handle all the proceedings on your behalf. The sole purpose of the DMV hearing is to determine whether your license should be suspended or not.

After an arrest for DUI in California, the arresting officer confiscates your driver's license and issues you with a suspension notice. This notice serves as your driver's license for thirty days. This document also informs a driver that they have a right to a DMV hearing within ten days from the DUI arrest.

If you fail to request a DMV hearing within ten days of the license confiscation, it will result in an automatic suspension of your driver’s license. The license is suspended automatically within 30 days of the DUI arrest. After the suspension of your driver’s license, you could seek a reinstatement of the license through:

  • Enrolling in a California DUI School
  • Submitting an SR-22 insurance form
  • Paying a reinstatement fee of $125
  • You may reinstate your driver's license by installing an ignition interlock device in your vehicle.

If you request a DMV hearing within ten days, the license suspension will be avoided until the outcome of the DMV hearing. If you win at the DMV hearing, you can prevent the suspension of your driver’s license. It’s essential to contact an attorney immediately after a DUI arrest to arrange for a DMV hearing. An attorney will do his or her best to defend you at the DMV hearing and get a favorable outcome.

Typically, DMV hearings are more relaxed than court trials. However, the burden of proof or the evidence needed to prove you guilty is less than that needed in court. The DMV hearing does not take place in court but an office or even on the phone. However, despite the informality of the DMV hearing, you still have some rights:

  • You have a right to be represented by an attorney at the DMV hearing.
  • You have a right to challenge or review the evidence presented against you.'
  • Present and subpoena witnesses including the arresting officer
  • A right to testify on your behalf
  • A right to cross-examine the witnesses

Several factors will determine your chance of prevailing or winning in a DMV hearing:

  • Whether the arresting officer had a probable cause to believe that you were operating your vehicle while under the influence of alcohol
  • Whether the arresting officer had a lawful reason to put you under arrest
  • Whether at the time of your arrest, your blood alcohol content was 0.08% or more

After the DMV Hearing

If you win at the DMV hearing, the suspension of your driver’s license is canceled. However, all is not lost even if you lose at the DMV hearing. Unless the license suspension occurred due to refusing to undergo a chemical test, a driver might request a restricted license, also known as a critical use license. With the help of your attorney, you may appeal the decision made by the DMV officer. To appeal, you have to submit a request and pay $120. You have to file an appeal within 15 days from the qualifying date of the DMV hearing officer’s decision. You may also get your driver’s license restored by paying a reinstatement fee of $125 to the California DMV. You may also seek reinstatement of your driver's license by filing a financial responsibility proof (SR22) and maintaining your financial responsibility proof for three years.

Restricted License for an Underage Driver

You could be wondering whether an underage driver can get a California restricted driver's license. The answer is yes. An underage driver can acquire a restricted license, which is similar to the learner's permit. With a California restricted license, you can drive to and from school or work, especially if you have no other means of transport.

However, you are not eligible to get a restricted driver's license if the cause for your license suspension is a refusal to undertake a DUI chemical test.

Common Legal Defenses for Underage DUI in California

After an arrest for underage DUI in California, your attorney can help you create a convincing defense for your charges. Some of the common legal defenses that you can use to fight the charges include:

No Driving Defense

The no driving defense is a common defense for underage DUI in California. You may use this defense if no other person, including the police, saw you operating a vehicle. The police or witnesses do not observe some underage DUI offenses. Especially if a vehicle breaks down or an accident occurs, the police will only arrive at the accident scene after you have stopped driving. You may not even be in your vehicle at the time the police arrive. If the police cannot prove that you were the one operating the car, you may evade charges for underage DUI.

For the prosecutor to charge you with underage DUI, he or she must prove in court that you operated the vehicle while intoxicated. It’s possible to face DUI charges even if the police did not see you driving. However, if the prosecutor can’t prove that you had been driving while intoxicated, the case may fail. In this scenario, whether or not you drove while intoxicated will be the judge’s question of fact. The prosecutor may use both direct and circumstantial evidence to prove you guilty of the offense.

Lack of Probable Cause for DUI Stop and Arrest

You can also fight underage DUI charges if the police didn’t have a probable cause to make the DUI stop and arrest. Before the police initiate a traffic stop or arrest a driver for drunk driving, they must have a specific justification level. The Fourth Amendment to the U.S. Constitution prohibits law enforcement officers from subjecting suspects to illegal search and seizure. Therefore, an officer can’t just pull over your vehicle without a probable cause. An officer must have facts that made him or her suspect that you were committing a crime.

Having a probable cause does not imply that a police officer should suspect that you are under the influence of alcohol or drugs. An officer may stop your vehicle due to another traffic violation only for him or her to realize that you are under alcohol. An officer satisfies the probable cause requirement as long as they can get some reason to initiate a traffic stop.

However, there’s an exception to the probable cause requirement. If a law enforcement officer stops a vehicle at a DUI checkpoint, they do not need to have a probable cause for initiating the traffic stop. After the police stop your car, they still require a probable cause to initiate a DUI investigation. The DUI investigation starts when the police suspect that a driver is involved in drunk driving. Your attorney could help you fight the underage DUI charges if the police had no probable cause to stop your vehicle.

The Arresting and Testing Officer Didn’t Follow the Right Procedures.

You can fight underage DUI charges if you feel that the arresting and the testing officer did not follow the necessary testing procedures. The law sets out rules and procedures regarding how law enforcement officers should conduct breath tests, blood tests, and DUI urine tests. The prosecutor will use the DUI test results to bring charges against you. However, if the police failed to comply with Title 17 at the time of testing, you and your attorney can challenge the DUI test results' credibility.

The Positive BAC Results were Due to Rising Blood Alcohol

You can also state that the high BAC levels were due to rising blood alcohol. The alcohol levels in your blood may continue to rise even after you stop drinking. After you consume an alcoholic beverage, your blood alcohol level increases rapidly. The alcohol level continues to increase until it reaches the peak, usually two hours after consuming alcohol. Therefore, you can assert that at the time you were driving, your blood alcohol level was below the legal limit but had risen at DUI testing.

Acid Reflux or GERD

If you have certain medical conditions like acid reflux, GERD, or hiatal hernia, you may record false BAC results. You may have had a drink, but your BAC is nowhere near the legal limit of 0.05% for an underage driver. However, upon testing, your BAC results indicate that you are way above the legal limit. The false BAC results could be due to an underlying medical condition. The outlined medical conditions often cause stomach acid to flow back into the esophagus. The esophagus connects the throat with the stomach. Therefore, if there’s some alcohol in your stomach, it could create mouth alcohol and yield false BAC results. If you have underlying medical conditions that could influence your BAC results, you could fight the DUI charges based on this fact.

You Had Mouth Alcohol from another Source

If you consume or regurgitate any substance with alcohol, you may retain traces of alcohol in your mouth. These traces could lead to false alcohol readings. Some of the substances that could lead to alcohol traces in the mouth include certain medications, mouth wash, dental works, and certain medications. If you record high BAC results because of traces of alcohol from other substances, you can fight the DUI charges with your attorney's help.

Other possible defenses that your attorney can use to fight underage DUI charges include:

  • Faulty of malfunctioned Breathalyzer equipment
  • The police did not advise you about your rights during the DUI arrest and testing.
  • An unqualified person conducted the test.
  • You were on a low carbohydrate or high protein diet.

Find a San Jose Criminal Attorney near Me

If you have been arrested for underage DUI, you risk the suspension of your driver’s license for up to one year. However, you can avoid this by contacting an attorney immediately after an arrest. An attorney will represent you at the DMV hearing and in court if the case proceeds to trial. California Criminal Lawyer Group provides the best legal representation for underage DUI offenses. Contact us at 408-622-0204 and speak to one of our attorneys.