23136 VC – California “Zero-Tolerance” Law re Underage DUI

Vehicle Code 23136 VC is California’s “zero tolerance” law on underage drinking and driving. You violate this California underage DUI law if you are under the age of 21, and you drive with any detectable alcohol in your system. You do not need to be impaired or “under the influence.”¹

Vehicle Code 23136 VC reads: “Notwithstanding Sections 23152 and 23153, it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law.”

VC 23136 under-21 DUI is not actually a California crime. However, unless you take action to fight the citation, you will face a mandatory one-year suspension of your driver’s license.²

To help you better understand the nuances of California’s laws on underage drinking and driving, our California DUI attorneys discuss the following:

• 1. What is the Legal Definition of Underage Drinking and Driving under VC 23136?
  • 1.1. How is BAC measured under Vehicle Code 23136?
  • 1.2. Can I be charged with both VC 23136 and another California DUI offense?
• 2. What is the Penalty for Violating California’s “Zero Tolerance” Under-21 DUI Law?
• 3. How Can I Fight a DMV License Suspension under Vehicle Code 23136 VC?
  • 3.1. How can I get a “restricted hardship license” after an underage DUI?
  • 3.2. How can I reinstate my driver’s license after an under-21 DUI?
• 4. VC 23136 and Related Offenses
  • 4.1. VC 23140 underage DUI with a BAC of 0.05 or above
  • 4.2. VC 23152 standard (“adult”) DUI
  • 4.3. VC 23224 underage possession of alcohol in a vehicle

If, after reading this article, you have any questions, please do not hesitate to contact us at Shouse Law Group.

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

California Vehicle Code 23136 VC is California’s “zero tolerance” DUI law. It was enacted by the California Legislature in 1994 to combat the problem of underage drinking and driving.

Vehicle Code 23136 makes it unlawful for anyone under 21:

• To drive,
• With a blood alcohol content (BAC) of .01% or greater,
• After consuming an alcoholic beverage.³

Even a small amount of alcohol can raise your BAC to .01% very quickly. And for purposes of Vehicle Code 23136, “alcoholic beverage” applies to alcohol from any source, not just alcoholic drinks.⁴

Besides alcoholic drinks, potential sources of alcohol include:

• Cough syrups and nighttime cold formulas such as Nyquil,
• Topical mouth-numbing ointments, and
• Homeopathic medicines.

1.1. How is BAC measured under Vehicle Code 23136?

BAC for a standard DUI is measured by a post-arrest DUI chemical (blood or breath) test.⁵

But for purposes of California’s “zero tolerance” law, BAC may be measured by a preliminary alcohol screening (PAS) test.⁶

A PAS is a roadside test, given on a handheld Breathalyzer or similar device.⁷

For drivers 21 and over, taking a PAS test is usually optional.

But in California, drivers under 21 are deemed to have given their consent to a PAS test if they are suspected of drinking and driving.⁸

This means that if you are under 21 and get stopped for DUI–and you refuse to take a PAS test–the DMV will automatically suspend your driver’s license for one (1) year.⁹

Just as importantly, if your license is suspended for a PAS test refusal, you become ineligible for a California restricted hardship license (discussed in more detail in Section 3.1 below).¹⁰

1.2. Can I be charged with both VC 23136 and another California DUI offense?

In most cases, California law prevents a person from being convicted of more than one California DUI offense for the same behavior. (In other words, you can be convicted of either Vehicle Code 23152(a) VC driving under the influence of alcohol or Vehicle Code 23152(b) VC driving with a BAC of 0.08% or greater–but not both.)

BUT VC 23136 “zero tolerance” underage DUI is an exception to this rule. If your BAC is high enough, or you are actually impaired by alcohol when you drive, you may be convicted of both VC 23136 and another California DUI offense.

Also, you may be CHARGED with more than one California DUI crime in addition to Vehicle Code 23136 under-21 DUI, even though you ultimately can be convicted of only one.

Example: Zack is 17 years old. One night he meets friends for dinner at a restaurant and has a few sips of a friend’s beer. Zack has very little experience drinking alcohol and finds that the small amount of beer makes him feel a little “silly.” Nonetheless, he drives himself home from the restaurant.

Zack is pulled over and given a preliminary alcohol screening test, which indicates his BAC is 0.05%. Based on the results, he is charged with all three of VC 23136 zero tolerance underage DUI, VC 23152(a) driving under the influence and VC 23140 minor with a BAC of 0.05% or above.

Because of the screening test results, it is easier to prove that Zack drove with a BAC of 0.05% or above than that he was “under the influence.” So he ends up being convicted of both VC 23136 and VC 23140 (but not VC 23152(a)).

2. What is the Penalty for Violating California’s “Zero Tolerance” Under-21 DUI Law?

Violation of Vehicle Code 23136 VC is not a crime. It is a civil offense.

The only penalty for violating California’s “zero tolerance” under-21 DUI law is suspension or revocation of your driver’s license by the DMV. This is known as an administrative “per se” (APS) suspension.

If you do not have a license at the time of your violation, an APS violation such as zero-tolerance underage DUI will subject you to a one-year delay in getting one.

When you are cited for violating VC 23136, the officer will take away your license (if you have one) and send it to the DMV. You will then be issued a temporary license. The temporary license is good for 30 days.¹¹

At the end of the 30-day period, your license suspension or revocation will go into effect unless, within ten (10) days of your citation, you request a DMV hearing to contest the suspension.

You can also request a DMV hearing if your license was suspended for a refusal to take a PAS or chemical test.¹²

3. How Can I Fight a DMV License Suspension under Vehicle Code 23136 VC?

To stop your license from being automatically suspended under VC 23136, you must request a hearing from the DMV within 10 days of your citation. This will postpone any suspension until your hearing takes place. Only if you lose the hearing on your under-21 driving under the influence case will the suspension finally go into effect.

You can schedule a license suspension hearing in your zero-tolerance under-21 DUI case by calling one of the California DMV’s regional safety offices. Or, if you have already retained a lawyer, he or she can do it for you.

Most DMV hearings for underage DUI take place by phone. You may, however, request an in-person hearing at a DMV regional safety office.¹³

Three issues will be decided at the hearing:

1. Were you driving?
2. Were you lawfully detained?
3. Did you wrongfully refuse a chemical test, OR was your BAC above .01% at the time you drove [for example, did you violate Vehicle Code 23136 VC]?¹⁴

You have the right to have an attorney represent you at a California VC 23136 DMV hearing.¹⁵ Often, your attorney can handle it entirely on your behalf.

If you win your under-21 DUI DMV hearing, the suspension will be canceled and your license will be returned (assuming you had one).¹⁶

If you lose the hearing on your zero-tolerance underage DUI, you will have to wait until the end of your suspension to reinstate your driving privilege, unless you are eligible for a restricted hardship license.¹⁷

3.1. How can I get a “restricted hardship license” after an underage DUI?

You are eligible for a restricted hardship license after violating Vehicle Code 23136 VC if:

• you did not refuse to take a PAS or other chemical test,
• all other transportation is inadequate (in the DMV’s opinion), and
• a vehicle is necessary for travel:
  • to and from school,
  • because of family illness,
  • to and from work, or
  • for a family business that provides part of your family’s income.¹⁸

If you are eligible for a restricted hardship license after a zero-tolerance underage DUI, you will still need to serve a 30-day mandatory suspension before it is issued.¹⁹

3.2. How can I reinstate my driver’s license after an underage DUI?

Underage drivers can reinstate their driving privilege at the end of a DMV suspension or revocation for a VC 23136 violation by:

• Paying a $100 reissue fee to the DMV,
• Filing proof of financial responsibility (known as an SR-22), and
• Maintaining proof of financial responsibility for three years.²⁰

4. VC 23136 and Related Offenses

4.1. VC 23140 underage DUI with a BAC of 0.05 or above

California Vehicle Code 23140 VC makes it a California infraction for anyone under 21 to drive with a BAC of .05% or higher. ²¹ This is sometimes referred to as “underage DUI with a BAC of .05 or higher” and, unlike VC 23136 zero tolerance underage DUI, is a California crime.

If you are arrested for VC 23140 underage DUI in California, your BAC will usually be confirmed by a DUI post-arrest chemical test. This will be either another breath test – mostly likely on a desktop machine at the police station – or a DUI blood test.

An infraction like underage DUI with a BAC of 0.05 or higher does not result in jail time. Rather, a violation of VC 23140 subjects you to:

• A one-year suspension of your driver’s license for a first offense,
• A fine of $100 (for a first offense),²² and
• If you are 18 or over, a mandatory alcohol education program of three months or longer.²³

4.2. VC 23152 standard (“adult”) DUI

Regardless of your age, you may be charged with “standard” (adult) DUI if:

• your driving ability is actually impaired due to alcohol and/or drugs, or
• you drive with a BAC of .08% or higher.²⁴

Standard DUI is a misdemeanor under California law–unlike VC 23136 zero-tolerance DUI, which doesn’t actually carry criminal penalties. Penalties for a first-time standard DUI include:

• Suspension of your driver’s license,
• Three to five years of informal (“summary”) probation,
• Fines of $390 to $1,000,
• A 3-month or 9-month alcohol and/or drug education program, and
• Up to six months in county jail.

4.3. VC 23224 underage possession of alcohol in a vehicle

Under VC 23224, California’s underage possession of alcohol in a vehicle law, people under 21 may not carry alcohol inside a vehicle unless:

• the container is full, sealed, and unopened, and
• they are:
  • accompanied by a parent or other specified adult,
  • getting rid of the alcohol because their parent or such an adult told them to, or
  • carrying it as part of their job working for someone with a legitimate liquor license.

VC 23224 is sometimes charged along with Vehicle Code 23136 VC zero-tolerance DUI. Violation of Vehicle Code 23224 VC is a misdemeanor, and penalties can include:

• Impoundment of your vehicle for up to 30 days,
• A fine of up to $1,000, and
• A one-year suspension of your driver’s license.²⁵

For more information about Vehicle Code 23136 VC California’s “zero tolerance” law on underage DUI, or to discuss your case confidentially with one of our criminal defense attorneys, please don’t hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada’s DUI laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

¿Habla español? Visite nuestro sitio Web en español sobre las leyes de DUI de menores en California.

---

Legal References: