In California, underage drivers are given high restrictions when it comes to drunk-driving. These restrictions are put in place to make sure all road users are safe and protected. For instance, young drivers are subjected to the Zero Tolerance Underage DUI law, meaning the state does not tolerate any drunk-driving by underage drivers. Due to the implementation of this law, underage drivers can easily be charged with DUI, which comes with severe consequences. Any underage driver arrested for violating this law would need expert legal representation.
At Orange County DUI Defense Attorney Law Firm, we aim to help any person facing a DUI charge, including Underage DUI under the California Zero Tolerance Law. We have highly knowledgeable and skilled attorneys who can help you in case you are facing these charges. We look at the requirements under the Zero Tolerance Law in the following sections.
The Definition of Zero Tolerance Law
Generally, California law makes it illegal for persons under twenty-one to drink alcohol as they are considered underage. However, when driving comes into play, the matter becomes more serious. California Zero Tolerance Law is defined under VC 23136. This law was implemented in 1994 by the California lawmakers to curb the issue of underage driving while intoxicated. According to this Vehicle Code, it is an offense for any person below twenty-one years to operate a vehicle or be in its actual physical control when his/her blood alcohol concentration (BAC) is 0.01% or more.
This means underage drivers can’t have any detectable amount of alcohol in their blood system while driving. Even a little alcohol amount can raise one’s BAC to 0.01% very fast. Thus, for VC 23136, alcoholic beverages apply to alcohol from any given source, and not only to alcoholic drinks. Apart from alcoholic drinks, possible alcohol sources include homeopathic medicines, night-time cold formulas like Nyquil, cough syrups, and topical mouth-numbing ointments.
Additionally, under 21 drivers are prohibited from possessing alcohol in their vehicles. Because underage drivers have little experience when it comes to driving and they can easily be impaired by alcohol, limitations like the Zero Tolerance Law are put in place to make sure that everyone using the road is safe.
In case you are under twenty-one years and have been arrested for drunk driving, you could be prosecuted for Underage DUI under three laws. They include:
- VC 23136 Zero Tolerance Law (0.01% - 0.04% BAC)
- VC 23140 Underage DUI with a BAC of .05% or more
- VC 23152b DUI with a BAC of .08%
If additional circumstances are present in your case, for example, injuries or prior convictions, they will determine potential penalties. Additionally, as stipulated in VC 23600, drivers that are sentenced to probation for past DUI offenses are subject to the Zero Tolerance Law. In case they are under 21 years old, they can’t under any circumstances, have a blood alcohol concentration of 0.01% or more.
The Difference Between VC 23136 DUI and an Ordinary DUI
In an adult or standard DUI offense, a driver can face DUI charges if their BAC is 0.08% or higher, or if the prosecutor can prove the driver was impaired while operating a vehicle with an alcoholic content in their blood system.
VC 23136 applies to under 21 drivers. Because the consumption of alcohol is prohibited for persons below the age of 21, any detectable alcohol amount in their system can result in DUI charges, hence the term ‘zero tolerance.’ In California, it is not mandatory that under 21 drivers be impaired for them to face Underage DUI charges. This means the restrictive BAC of 0.01% or more applies to any driver who is under 21.
Generally, driving under the influence as per the Zero Tolerance Law affects:
- Drivers who are below the stipulated alcohol consumption age of twenty-one or
- Drivers that have been sentenced to probation for a past DUI offense
- Have a BAC of 0.01% or more
- Refuse to submit to chemical testing,
- Do not complete the chemical testing
Simply put, in case you’re a driver affected by VC 23136, any alcohol level in your blood system will subject you to DUI charges.
Measuring BAC Under VC 23136
The blood alcohol concentration of a California regular DUI offense (VC 23152a and VC 23152b) is measured using DUI chemical (breath or blood) tests taken after one has been arrested. However, for VC 23136 Zero Tolerance Law, the BAC can be measured through a preliminary alcohol screening (PAS) test. This is a test carried out by the roadside, which is administered using a handheld Breathalyzer.
For drivers that are 21 years and above, submitting to a preliminary alcohol screening test is normally optional. However, in California, under 21 drivers are considered to have consented to the PAS test in case they’re suspected of drunk driving. This means in case you are below the age of 21 and an officer stops you for drunk driving, then you decline to submit to a preliminary alcohol screening test, the California Department of Motor Vehicle (DMV) will suspend your license automatically for one year.
Moreover, it is important to note that once your driver’s license is revoked for refusing to take a preliminary alcohol screening test, you become disqualified to acquire a restricted license.
Facing Both Vehicle Code 23136 Charges and Other DUI Charges
In many cases, the law of the State of California prohibits an offender from being sentenced for two or more DUI offenses with similar behavior. Thus, an offender can only be sentenced for either DUI of alcohol under VC 23152a or driving with a .08% or more BAC under VC 23152b, but not the two of them.
However, VC 23136 Underage DUI is exceptional to this law. In case you’re alcohol-impaired during driving, or your blood alcohol concentration is detectable enough, you can be charged under both Zero Tolerance Law and any other California DUI law. Additionally, you can face charges of two or more DUI offenses in addition to VC 23136 Underage DUI, although you will eventually be sentenced for only one.
For example, Tim, an 18-year-old, is invited by his friend for a dinner party. Tim takes a couple of sips of his friend’s beer. Even though he didn’t take much, and he does not feel tipsy, he decides to leave the party and drive home.
Tim is stopped by an officer, and a PAS test is administered. The test results show that his BAC level is at 0.06%. Depending on the test results, Tim faces three DUI charges. That is, zero tolerance under 21 DUI under VC 23136, VC 23140 Underage DUI with a .05% or more BAC, and VC 23152a standard DUI.
Since the results of the PAS test makes it easier to show that Tim operated a vehicle with .05% or more BAC than they make it easier to show he was impaired or intoxicated, he is finally convicted of two offenses; VC 23140 and VC 23136 and not VC 23152a.
Penalties for Violating Zero Tolerance Law
Violating VC 23136 isn’t a criminal offense. Rather, it’s a civil violation. If a person violates the California Zero Tolerance Law, the only punishment they can face is for the DMV to suspend their driver’s license. This is referred to as an administrative per se suspension. In case you violated this law and didn’t have a driver’s license at that time, your administrative per se punishment will be a delay in obtaining a driver’s license for one year.
In case you are charged with VC 23136, your driver’s license will be confiscated (that’s in case you have it) and mailed to the Department of Motor Vehicles. Then, you will be given a temporary one which is valid for thirty days. After the thirty days end, your driver’s license will automatically go into suspension unless you demand a DMV administrative hearing within ten days of being charged to challenge the suspension.
Additionally, you can demand a DMV administrative hearing in case your driver’s license was revoked for refusing to submit to a chemical or PAS test.
The Punishment for Declining a Chemical Test
If you have been arrested for violating the zero-tolerance Underage DUI law then you refuse to submit to a PAS or a chemical test, you will face an additional one year of driver’s license suspension. The suspension will go up to an additional two years in case you have a previous record of either:
- Refusing to submit to chemical tests
- One or more prior wet reckless or DUI convictions.
Challenging a VC 23136 DMV Driver’s License Suspension
As we mentioned earlier, to stop the DMV from automatically suspending your license under Vehicle Code 23136, you have to request a DMV administrative hearing within ten days of being charged. Doing this will delay the suspension until after the hearing occurs, and the results determined. Only if the results of the hearing are against you will the revocation ultimately be effected.
You may schedule the DMV administrative hearing by contacting your DMV regional office, or in case you have retained an attorney, he/she can request the hearing for you. Many of the DMV administrative hearings for under 21 DUI are carried out through a phone call. However, you can request for the hearing to take place in-person at the DMV regional office.
During the hearing, the hearing officer considers three issues. They include: whether or not you were driving, whether or not you were legally arrested, and whether or not you wrongfully refused to take chemical tests, or whether or not your BAC was 0.01% or higher when you drove (that is if you violated VC 23136).
You must’ve been operating the vehicle or in its actual physical control for you to be arrested. In case your BAC was 0.01% or greater, and you weren’t driving, the DMV cannot suspend your license. Instead, you can only be arrested for underage drinking. Additionally, you need to be below the age of 21 for the DMV to suspend your license under VC 23136. If you’re over the age of 21, your license may still be suspended, but under a different DUI law.
Note that you are entitled to a DUI attorney representation at your Vehicle Code 23136 DMV administrative hearing. Usually, your lawyer can handle the entire hearing for you. Winning the hearing means the license suspension won’t take place, and the license is handed back to you. Moreover, in case you lose your case, you must wait until after the suspension period ends for you to reinstate the license, unless you qualify to obtain a restricted hardship license.
Obtaining a Restricted Hardship License After a Zero Tolerance Law DUI
After violating VC 23136, you will only qualify to get a restricted license if:
- In the DMV’s opinion, all other means of transportation isn’t adequate
- You didn’t refuse to submit to chemical tests or a PAS test
- Your vehicle is mandatory for traveling:
- To or from school
- To or from your workplace
- Due to your family’s illness
- For a family business which provides income for your family
In case you qualify for a restricted hardship license, you still have to serve thirty days of mandatory driver’s license suspension before it’s issued to you.
Reinstating Your License After Violating Zero Tolerance Law
Under 21 drivers may reinstate their driver’s licenses after the DMV revocation or suspension period ends. However, there are conditions that they must adhere to. They include:
- Paying to the DMV a reissue fee of $100
- Filing evidence of financial liability (called an SR-22)
- Maintaining evidence of financial liability for a maximum of three years.
Violation of VC 23136 May Affect Your Job Application and College Studies
A conviction of an Underage DUI will reflect on your criminal records and background checks. Thus, you must mention it on your job or college applications. Not mentioning that you were charged with DUI may result in expulsion from college or being denied or fired from a job. Additionally, certain colleges will restrict the scholarships open to you if you have been found guilty of a DUI. Also, in certain occupations, it is a requirement to have a special certification or license that you might not get in case you have been sentenced for DUI.
If you have been charged with VC 23136, you may apply for your records to be expunged after fulfilling all the requirements that qualify for an expungement.
Possible Defenses for VC 23136
Even though VC 23136 is not a crime under the law, not taking a step to challenge the citation at a DMV hearing may result in a one-year mandatory driver’s license suspension. The defenses your attorney can use to fight the citation include:
Possible police missteps
You must note that during an arrest, the arresting officer has to follow given procedures for the arrest or detention to be lawful. The procedures include:
- Pulling you over only with reasonable suspicion or probable cause
- Asking you to do field sobriety tests
- Administering a PAS test
Attorneys at Orange County DUI Defense Attorney Law Firm may help you to identify possible missteps in the arresting procedure or any mistakes made by the arresting officer and build solid defenses that may convince the DMV not to suspend your license.
Incorrect BAC results
In case the arresting officer used defective equipment to measure your BAC, then it means the results are not accurate. Consequently, you cannot be penalized based on false results. Additionally, if your attorney can prove that other elements like rising BAC, certain diets, or medical conditions affected your BAC level, then your charges may be dropped.
Related Offenses to VC 23136
DUI cases vary based on the facts of the case. While VC 23136 DUI mostly touches on drivers that are under the age of 21 years, any driver could be charged with DUI and be subjected to the respective punishment. Apart from an under 21 year old being charged with VC 23136, there are different but related charges they can also face under California law. They include:
Under 21 DUI With a BAC of .05% or more (VC 23140)
California VC 23140 makes it an infraction for any person under the age of 21 to operate a vehicle with a blood alcohol concentration of 0.05% or more. Unlike in the case of violating Zero Tolerance Law, which is a civil offense, VC 23140 is a crime.
In case you get arrested for Underage DUI under VC 23140, your BAC is usually measured by taking chemical tests. Either you will be requested to take a second breath test, or you will take a blood test.
Infractions do not carry a jail sentence as a punishment. Therefore, if you violate VC 23140, you will be subjected to:
- A driver’s license suspension for one year if it is your first offense
- $100 in fines if it is your first offense
- In case you are eighteen years or above, you will face at least three months of a compulsory alcohol school program.
Adult (Standard) DUI VC 23152
Irrespective of how old you are, you can be convicted of standard DUI alongside VC 23136 zero tolerance Underage DUI in case your ability to drive was impaired because of drugs or alcohol, or if you drove a vehicle with a .08% or more BAC.
VC 23152 is charged as a misdemeanor, contrary to VC 23136, which does not carry any criminal penalties. The punishment for a standard DUI for first-time offenders include:
- A driver’s license suspension
- A fine ranging between $390 and $1,000
- Informal probation to up to five years
- A three-month or nine-month of drug or alcohol education program
- A maximum of six months of county jail time
Under 21 Alcohol Possession in a Motor Vehicle (VC 23224)
Under Vehicle Code 23224, it is prohibited for persons under the age of 21 to carry alcoholic drinks in their vehicles except if the container they are carrying is full, unopened, and sealed, and they’re:
- In a company of their parent(s) or a specified adult
- Disposing of the alcoholic drink because they were told to do so by their parent(s) or the specified adult.
- Employed to transport the alcoholic drink and are working for a person that has a valid liquor license.
Vehicle Code 23224 can be charged alongside violation of Zero Tolerance Law. The offense is charged as a misdemeanor whose penalties may include:
- A maximum fine of $1,000
- A driver’s license suspension for one year
- Vehicle impoundment for a maximum of thirty days.
DUI Causing Injury (VC 23153)
It’s not uncommon for underage drivers that are intoxicated to cause road accidents. A driver under 21 who causes an accident while driving drunk and another person gets injured in the accident may face both VC 23136 and VC 23153. Moreover, if the DUI led to the death of another person, the underage driver can face vehicular manslaughter charges under PC 191.5b.
VC 23153 is a wobbler offense. This means the prosecutor can charge you either as a misdemeanor or a felony. A misdemeanor conviction carries a maximum of one year in jail and a maximum fine of $1,000. Your driver’s license may also be suspended for a year. On the other hand, a felony conviction carries a maximum of three years in jail, a maximum fine of $5,000, and a driver’s license suspension for a maximum of three years.
Get a Underage DUI Attorney Near Me
As VC 23136 outlines, it is very simple for an underage driver to be charged with a DUI under the Zero Tolerance Law. Thus, under 21 drivers ought to be careful not to consume any substance that would raise their BAC even to the slightest level of 0.01%. However, this is not always easy. If you or your loved one has been cited for violating the Zero Tolerance Law, don’t hesitate to call Orange County DUI Defense Attorney Law Firm. As one of the leading DUI defense firms in Orange County, we may be able to defend your case and prevent your driver’s license suspension. Call us now at 714-740-7866 to get help from our professional and experienced staff.