Vehicle Code 23136 VC - "Zero-Tolerance" Underage DUI Law
California's Underage DUI "Zero-Tolerance" law is codified in Vehicle Code 23136 VC and is commonly known as underage drinking and driving. You violate this law if you are under the age of 21 and you drive with any detectable alcohol in your system.
Notably, you do not need to be impaired or under the influence. Further, VC 23136, underage DUI law, is not actually a crime. However, unless you take action to challenge the citation, you will face a mandatory one-year suspension of your driver's license.
California's "zero tolerance" DUI law was enacted by the Legislature in 1994 to fight the issue of underage drinking and driving.
Simply put, Vehicle Code 23136 VC makes it unlawful for any person under 21 to drive with a blood alcohol content (BAC) of .01% or greater after consuming an alcoholic beverage.
A small amount of alcohol can raise your BAC to .01% quickly. Notably, in context, an alcoholic beverage applies to alcohol from any type of source, not just alcoholic drinks, including cough syrups and nighttime cold medicines.
A post-arrest chemical test, such as blood or breath, measures BAC for a standard DUI. However, under the "zero tolerance" law, BAC can be measured by a preliminary alcohol screening (PAS) test.
A PAS is a roadside test given using a handheld breathalyzer or similar device. It is typically optional for drivers over 21. However, in California, drivers under 21 are deemed to have given their implied consent to a PAS test if they are suspected of drinking and driving.
Suppose you are under 21 and are stopped for DUI and refuse to take a PAS test. In that case, the DMV will automatically suspend your driver's license for one year. Also, if your license is suspended for a PAS test refusal, you become ineligible for a California-restricted hardship license.
What Does the Law Say?
California is well-known for its tough stance on driving under the influence of underage drivers. Any amount of alcohol consumption by drivers under 21 is strictly prohibited.
Suppose you're under 21 and cited for violating this law. In that case, the consequence is not just a one-year suspension of your license but a significant disruption to your daily life unless you successfully contest the citation.
Simply put, California has an uncompromising position on underage drinking and driving. You can violate this law if you're under 21 and drive with any detectable alcohol in your system.
Vehicle Code 23136 VC says, "(a) 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.
(b) A person shall be found to violate subdivision (a) if the person was, at the time of driving, under the age of 21 years. The trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.
(c) (1) Any person under the age of 21 years who drives a motor vehicle is deemed to have given their consent to a preliminary alcohol screening test or other chemical tests for the purpose of determining the presence of alcohol in the person if lawfully detained for an alleged violation of subdivision (a).
(2) The testing shall be incidental to a lawful detention and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of subdivision (a).
(3) The person shall be told that his or her failure to submit to, or the failure to complete, a preliminary alcohol screening test or other chemical test as requested will result in the suspension or revocation of the person's privilege to operate a motor vehicle for a period of one year to three years, as provided in Section 13353.1."
How Does California Enforce the Underage Drivers Law?
Under California law, there are tough restrictions on drivers until they turn 21 years old. Notably, VC 23136 has a few key points that underage drivers need to remember, such as the following:
- The BAC for underage drivers is reduced from 0.08 to 0.01. As noted, it's illegal for drivers under 21 to operate a vehicle with any detectable amount of alcohol in their system.
- Underage drivers can't refuse a PAS breathalyzer test. Adult drivers have the right to refuse to be tested for DUI until they are arrested. However, this law says that when you are under 21 and receive a license, you implicitly agree to take the PAS test if the police pull you over and ask you to take the tests. A refusal will result in an automatic license suspension. You can request a DMV hearing if your license was suspended for a refusal to take a PAS or chemical test.
- The only penalty for violating the under-21 DUI law is suspension or revocation of your driver's license by the DMV, known as an administrative "per se" (APS) suspension.
- If you do not have a license at the time of your violation, you will be subject to a one-year delay in getting one.
- When you are cited for violating VC 23136, police will take away your license and send it to the DMV. You will then be issued a temporary license, which is valid for 30 days. At the end of the 30 days, your license suspension or revocation will go into effect unless, within ten days of your citation, you request a DMV hearing to contest the suspension.
Can You Get a Restricted Hardship License?
For most drivers, losing the ability to drive to work or school makes life challenging. Thus, California law recognizes this and provides a possible option of a restricted hardship license.
This restricted license would allow you to drive to and from work, school, etc., during the period of your suspension. To get this license, you must apply to the DMV and meet the following criteria:
- You must have a vehicle for a valid purpose (travel to school or work).
- The DMV determines that other transportation options are inadequate.
- You did not refuse to take the preliminary alcohol screening (PAS).
- You did not refuse any other type of chemical test, which would make you automatically ineligible for a restricted hardship license.
Notably, even if you qualify, you still must serve a mandatory 30-day suspension before the restricted hardship license is issued. During this period, you are not allowed to drive under any circumstances.
Underage drivers can reinstate their driving privilege at the end of a DMV suspension or revocation for a VC 23136 violation by the following:
- Pay a $100 reissue fee.
- Filing proof of financial responsibility (SR-22).
- Maintain proof of financial responsibility for three years.
What Are the Penalties for Violating VC 23136?
Violating VC 23136 is a civil offense rather than a criminal, meaning it will typically result in a fine or penalty. The penalties include the following:
- Automatic one-year suspension of your driver's license.
- Possible full revocation of your license for subsequent offenses.
- The police officer will confiscate your driver's license on the spot and issue a temporary license valid for 30 days.
- If your BAC is 0.08% or higher, you face DUI charges that include fines, probation, mandatory alcohol education programs, and potentially jail time.
You will have the opportunity to contest the citation by filing your intent to contest with the DMV within ten days of receiving the citation.
You must submit a written request for a hearing to the Department of Motor Vehicles (DMV) within the specified time. Failure to do so will automatically result in the suspension going into effect.
What Are Related Crimes for VC 23136?
- Vehicle Code 23140 VC - underage DUI with a BAC of .05 or above. This is an infraction if someone under 21 drives with a BAC of .05% or higher. If arrested, your BAC is typically measured by a DUI post-arrest chemical test, such as a breath or blood test. Violations carry a one-year suspension of your driver's license for a first offense, a fine of $100, and a mandatory alcohol education program of three months or longer if you are over 18 old.
- Vehicle Code 23224 VC - underage alcohol possession in a vehicle. This law makes it a misdemeanor crime for anyone under 21 to carry alcohol inside a vehicle unless the container is full, sealed, and unopened, and they are accompanied by an adult, or carrying it is part of their job working for someone with a legitimate liquor license. Penalties for violating this law carry 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.
- Vehicle Code 23152 VC - DUI. This is the standard misdemeanor DUI law for adults. It can be filed when your driving ability to drive a motor vehicle is impaired due to alcohol or drugs or you drive with a BAC of .08% or higher. A conviction carries a suspension of your driver's license, three to five years of informal probation, fines of $390 to $1,000, an alcohol or drug education program, and up to six months in county jail.
How Can You Challenge a VC 23136 Citation?
Suppose you were cited for a violation under VC 23136. In that case, you have the right to contest the citation before your license is suspended. However, you must file it within ten days of receiving the citation, or your license will automatically be suspended for 30 days.
After you contest the citation, you will be scheduled to attend a DMV hearing to show cause why your license should not be suspended. Most DMV hearings for underage DUI occur over by phone, but you can request an in-person hearing at a DMV regional safety office.
You have the right to have an attorney represent you at a VC 23136 DMV hearing, who will typically handle the entire process on your behalf. During the hearing, you need to prove that one or more of the following occurred:
- The police officer did not have probable cause to stop you.
- You were not driving a motor vehicle.
- You did not have a blood-alcohol content of 0.01% or higher.
- You were not properly advised of your obligation to take the PAS test.
If you win your under-21 DMV hearing, the suspension will be canceled, and your license will be returned.
Suppose you lose the hearing on your zero-tolerance underage DUI. In that case, 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.
For the best chance of success, you should retain an attorney to represent you in challenging your VC 23136 violation. We will know best how to make the arguments and present evidence that could exonerate you.
If your license is suspended, your lawyer can also help you in qualifying for a restricted license if you are eligible. For additional information, contact our criminal defense law firm, Cron, Israels & Stark, based in Los Angeles, CA.
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