Vehicle Code § 23140 VC – Underage DUI with a BAC of 0.05 or Higher

California Vehicle Code § 23140 VC makes it an infraction for a person under the age of 21 to operate a motor vehicle with a BAC of .05% or greater. Doing so can result in fines, a driver’s license suspension and a mandatory alcohol education program.

The language of the code section reads as follows:

23140. (a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

(b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.

(c) Notwithstanding any provision of law to the contrary, upon a finding that a person has violated this section, the clerk of the court shall prepare within 10 days after the finding and immediately forward to the department an abstract of the record of the court in which the finding is made. That abstract shall be a public record and available for public inspection in the same manner as other records reported under Section 1803.

Standard (“adult”) DUI laws only impose DUI penalties when a person’s driving is influenced by his/her alcohol consumption or s/he has a BAC of 0.08 or higher. In other words, California DUI law holds drivers under the age of 21 to a stricter standard.

As a California infraction, VC 23140 will not result in jail time. Rather, a violation of this California under-21 DUI law subjects you to:

• A one-year suspension of your driver’s license (for a first offense), ^{1 2}
• A fine of $100 (for a first offense),³ and
• If you are 18 or over, a mandatory alcohol education program of three months or longer.⁴

Common DUI legal defenses that a California DUI defense lawyer might use to fight charges of underage DUI with a BAC of 0.05 or higher include:

• You weren’t driving;
• The DUI testing equipment wasn’t working properly;
• The person doing your DUI chemical test didn’t follow proper procedures;
• You were within the margin of error for an acceptable BAC result;
• Your blood alcohol was still rising at the time of your test (meaning your BAC was actually lower when you were driving);
• There was alcohol in your mouth from another source (such as mouthwash); and
• Your traffic stop or arrest was unlawful.

Our attorneys include former cops and prosecutors. We have seen how underage DUI offenses affect a young person’s life. We’re here to help.

To help you better understand the nuances of California’s 0.05 BAC underage DUI law, Vehicle Code 23140 VC, our criminal defense attorneys discuss the following topics below:

• 1. What is the Legal Definition of Underage Drinking and Driving with a BAC of 0.05 under VC 23140?
  • 1.1. How is BAC measured under Vehicle Code 23140?
  • 1.2. Can I be charged with both VC 23140 and another California DUI offense?
• 2. What is the Penalty for Violating California’s Law on Under-21 DUI with a BAC of 0.05?
• 3. How Can I Fight Vehicle Code 23140 VC Charges?
• 4. VC 23140 and Related Offenses
  • 4.1. VC 23136 “zero tolerance” underage DUI
  • 4.2. VC 23152 standard (“adult”) DUI
  • 4.3. VC 23224 underage possession of alcohul 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?

The legal definition of California Vehicle Code 23140 VC underage DUI is as follows:

1. A defendant is under the age of twenty-one (21);
2. The defendant drives;
3. At the time of driving, the defendant is under the influence of or affected by consumption of an alcoholic beverage; and
4. The defendant’s blood alcohol content (“BAC”) when s/he drives is 0.05% or greater.⁵

1.1. How is BAC measured under Vehicle Code 23140?

Underage DUI is usually established by a post-arrest DUI chemical test – a DUI breath test or DUI blood test.⁶ You have a choice of which of these tests to take.⁷

You may not refuse to take a post-arrest chemical test without consequence. All California drivers – regardless of their age – are deemed to have consented to a post-arrest chemical test if they are lawfully arrested for DUI, including VC 23140 underage DUI.⁸

Refusal to take a DUI chemical test after a lawful arrest for under-21 DUI will result in an automatic one-year suspension of your driving privilege.⁹

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

California law prevents a person from being convicted of more than one California DUI offense for the same behavior.

So let’s say you drive under the influence of alcohol, and are under 21 and have a BAC of 0.06. You may be charged with both Vehicle Code 23152(a) VC driving under the influence of alcohol and Vehicle Code 23140 VC underage DUI with a BAC of 0.05 or above. But you will only be convicted of one of the two.

One exception to this rule is Vehicle Code 23136 VC “zero tolerance” underage DUI (discussed in Section 4.1 below). This is a civil offense, not a crime–so it is possible to be both convicted of VC 23140 and cited for VC 23136.

And if you are under 21 and you have an open container of alcohol in the vehicle, you may face a separate and additional misdemeanor charge under Vehicle Code 23244 VC (discussed in Section 4.3 below).

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

California Vehicle Code 23140 underage DUI with a BAC of 0.05 or above is an infraction. An infraction does not result in jail time.

The consequences of a violation of Vehicle Code 23140 VC include:

• DMV suspension of your driver’s license,
• A fine of $100 (or more if you have a previous DUI),¹⁰ and
• If you are 18 or over, an alcohol education program of three months or longer.¹¹

Additionally, your vehicle can be impounded for at least five days if:

• You have a prior conviction for under-21 DUI under VC 23140 or for standard DUI; and
• Your BAC is .10% or greater, or you refused to take a chemical test.¹²

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

Fighting California underage DUI charges–or any DUI charges–can be complex. The most common legal defenses to charges of under-21 driving with a BAC of 0.05 or above include:

You weren’t driving

If you weren’t actually driving, you can’t be found guilty of underage DUI. This might occur, for instance, if you were just “sleeping it off” in your car.

You weren’t drunk

DUI chemical tests have an inherent margin of error.

An experienced DUI defense attorney — sometimes with the help of a defense expert witness – can often persuade the court that there is a reasonable doubt as to whether your BAC was at or above the legal limit for VC 23140 underage DUI (i.e., 0.05).

Errors in your DUI breath test

California DUI breath tests, commonly used in under-21 DUI cases, are subject to many types of errors, stemming from problems such as:

• The DUI breath testing machine not being properly calibrated,
• The operator of the machine not being properly trained, or
• No 15-minute period of continuous observation before the test was administered.

Errors in your DUI blood test

DUI blood tests used in VC 23140 cases are subject to errors, too. These can include:

• Your blood not being properly drawn and collected,
• Your blood fermenting (and thus produced its own alcohol) after it was drawn, or
• There being errors in documenting the “chain-of-custody” of your sample.

“Rising blood alcohol”

After you consume alcohol, your BAC levels steadily rise, until they reach a peak somewhere between 30 minutes and several hours later.

If your blood level was still rising at the time of your chemical test for underage DUI, it means your BAC was actually lower at the time you drove. A DUI defense expert witness can help establish a timeline to show this.

“Residual mouth alcohol” contaminated your breath sample

After you consume anything alcoholic, some of the alcohol remains in the mucosal linings of your mouth. DUI breath testing equipment is sometimes “confused” by this “mouth alcohol,” leading to erroneously high readings and unfair charges of VC 23140 under-21 DUI with a BAC of 0.05 or above.

Things that can cause or contribute to mouth alcohol include:

• Use of a mouthwash or breath spray containing alcohol,
• A medical condition such as diabetes, hypoglycemia, acid reflux or GERD,
• A high protein / low carbohydrate diet (such as the Paleo diet), or
• A drink consumed too recently for you to be drunk yet.

Failure by law enforcement to advise you of your rights

The police are bound by certain obligations of disclosure during DUI investigations and arrests. Some of these include:

• Advising you that failure to take a chemical test will result in a suspension of your license,¹³
• Giving clear instructions during field sobriety tests, and
• Once you have been placed under arrest, advising you of your Miranda rights before asking you incriminating questions.

When these procedures are not followed, or not followed correctly, in an under-21 DUI case, a good DUI defense lawyer can use it to your advantage.

Unlawful traffic stop, arrest or detention

Chemical tests in VC 23140 under-21 DUI cases are permitted only when they are incident to a lawful arrest or detention.

A traffic stop or arrest might be unlawful if there was a lack of probable cause. This means, essentially, that the police must have had a reasonable suspicion that a violation of law was taking place (such as a traffic violation or under-21 drunk driving). If they do not have probable cause, they cannot legally:

• pull you over, or
• place you under arrest.

A stop might lack probable cause, for instance, if you were pulled over solely because you were driving very late at night. In this case, a good DUI lawyer will make a suppression motion in court in your underage DUI case. If this motion is successful, the whole case is usually dismissed.

4. VC 23140 and Related Offenses

4.1. VC 23136 “zero tolerance” underage DUI

Vehicle Code 23136 VC is California’s “zero tolerance” underage DUI law. This law prohibits anyone under 21 from driving with a BAC of 0.01 or above (i.e., with any detectable alcohol in his/her system) as a result of consuming alcoholic beverages.¹⁴

VC 23136 is not a crime. It is a civil offense. The only penalty is a one (1) year suspension of the defendant’s driver’s license.¹⁵

It is very common for minors charged with Vehicle Code 23140 under-21 DUI with a BAC of 0.05 or above to also face the penalty under Vehicle Code 23136.

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.¹⁶

Standard DUI is a misdemeanor under California law–unlike VC 23140 under-21 DUI with a BAC of 0.05 or above, which is only an infraction. 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 23140 VC underage 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.¹⁷

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