What is the Legal Definition of Underage Drinking and Driving under VC 23136?

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To be convicted of violating California Vehicle Code 23150 VC underage DUI, you must

  1. be under the legal drinking age (twenty-one)
  2. drive
  3. be under the influence of alcohol with a BAC of .05% or more

1.1. How is BAC measured under Vehicle Code 23140?

After you are lawfully arrested, you automatically give consent to a DUI test. Refusal to take one of these tests will have legal consequences of a year-long suspension of your driver’s license. You will be given the choice to either take a DUI blood test or a DUI breath test.

1.2. Can I be charged with both VC 23140 and another California DUI offense?

Though you may have committed more than one offense, California law protects you against being convicted of more than one DUI for the same act. 

For example, if you are driving with an illegal BAC and you are under the legal drinking age, though you technically have broken both the law against underage DUI with a BAC of .05% or more and the law against driving under the influence of alcohol, you will only be convicted of one of these.

The exception to this law is the “zero tolerance” rule (Vehicle Code 23136 VC), which is covered in Section 4.1. Because this is categorized as a civil offense instead of a crime, you may be convicted of this code as well.

You will also be charged with a misdemeanor if you are under twenty-one and an open container of alcohol is found in your vehicle.

2. What is the Penalty for Violating California’s Law on Under-21 DUI with a BAC of 0.05?

Violating Vehicle Code 23140 is categorized as an infraction, not a crime. Therefore, no jail time will be given.

However, the following punishments may be received:

  • suspension of one’s driver’s license
  • a fine of $100 for first time offenders
  • a three-month or more alcohol education program for those eighteen or over

Your vehicle may also be impounded for five days or more if you have a prior under-twenty-one DUI conviction, you refused to take a chemical test, or your blood alcohol content was .10% or more.

3. How Can I Fight Vehicle Code 23140 VC Charges?

Though underage DUI charges can be difficult to defend, there are a number of ways you may be defended, such as

  • You weren’t driving (perhaps you were only resting in your vehicle)
  • It cannot be proved that the chemical test gave an accurate reading
  • The breath test was not correctly administered (the machine wasn’t correctly calibrated, the breath test operator was not properly trained, etc.)
  • The blood test was not correctly administered (the blood was not drawn properly, the blood fermented on its own, incorrect documentation, etc.)
  • Your blood alcohol content raised above the legal amount at the time of the test and was, in actuality, lower during the time you were driving.
  • Your breath sample was contaminated by the alcohol lingering in your mouth.
  • You were arrested/stopped/detained without probable cause
  • You were not told your rights by law enforcement at the time of arrest

Examples of failure by law enforcement to tell you your rights are

  • Not informing you that you will lose your license if you refuse to take a chemical test
  • Not giving clear instructions during a field sobriety test
  • Not telling you your “Miranda rights” before interrogating you on potentially incriminating questions

Any of the above-mentioned scenarios could be used by an attorney in your defense.

4. VC 23140 and Related Offenses

4.1. VC 23136 “zero tolerance” underage DUI

California’s “zero tolerance” underage DUI law (Vehicle Code 23136 VC) states that it is prohibited for anyone under the age of twenty-one to drive with a BAC of .01 or higher due to consuming alcoholic drinks.

This offense is categorized as a civil offense and not a crime. The consequence for this offense is only a suspension of one’s driver’s license for a year. However, often when someone has violated Vehicle Code 23140 (the statute prohibiting those under twenty-one from driving with a BAC of .05% or more) will also be charged with Vehicle Code 23136.

4.2. VC 23152 standard (“adult”) DUI

The standard DUI that any adult could be charged with is punishable by

  • Suspension of one’s driver’s license
  • 3-5 years of informal probation
  • Fines of $390-$1,000
  • As much as six months in jail
  • A three-to-nine-month alcohol or drug education program

To be convicted of Code VC 23152, you must either have a BAC of .08% or higher or be intoxicated enough for your driving to be impaired.

4.3. VC 23224 underage possession of alcohol in a vehicle

Under California’s law against underage possession of alcohol in a vehicle (code VC 23224), it is prohibited for those under twenty-one to carry alcohol in a vehicle unless the container is unopened and sealed, accompanied by a parent or specified adult, are disposing of the alcohol due to orders from their parent/guardian, or carrying it as part of a job requirement from someone in possession of a legal liquor license.

Alongside Vehicle Code 23140 VC, it is common to be charged with VC 23224. VC 23224 is a misdemeanor with the possible penalties of

  • vehicle impoundment of as much as thirty days
  • a maximum fine of $1,000
  • suspension of one’s driver’s license for up to one year

California takes a zero tolerance approach to prosecuting underage DUIs. The aforementioned information is just the basics. If you or someone you know is facing an underage DUI charge, do not hesitate to reach out for a free consultation with the H Law Group where an experienced attorney awaits your call.