Underage DUI

Violating V.C. § 23140 is considered an infraction, which is a minor-level crime similar to a moving violation. Consequently, violating this underage DUI statute will not lead to a jail term or even a criminal conviction. Instead, the consequences for violating it include:

• A driver’s license revocation/suspension for twelve months (first violation);
• One hundred dollars in fines (also first violation); and
• If you are at least eighteen years old, a compulsory DUI course for three or more months. See Driving Under the Influence (DUI) Program: 

V.C. § 23152: Actual Impairment and Driving with a BAC of 0.08% or More

If you are a driver under 21 years old, you may also be accused of standard adult drunk driving if your ability to drive was impaired because of alcohol (V.C. § 23152(a)) or you had a blood alcohol content of 0.08% or more (V.C. § 23152(b)). V.C. § 23152(b) is also known as per se DUI.

The elements of the crime are the same for charges of V.C. § 23152(b) violation, except that your BAC level must be .08% or more, regardless of the driver’s age. In other words, to be convicted of a V.C. § 23152(b) violation, the prosecutor does not need to prove that you were under 21 years at the time you drove the car. For example, for V.C. § 23152(a), the prosecutor only needs to show that your driving was impaired regardless of your BAC level.

Violating V.C. § 23152 is considered a misdemeanor. If nobody sustains an injury, the consequences for the first violation include:

• Summary probation for a minimum of three and a maximum of five years;
• A driver’s license suspension for one year;
• A three-month or nine-month DUI course;
• A fine ranging between $390 and $1,000; and
• In rare occasions, a maximum six months of a jail sentence.

Other adult drunk-driving charges you may face if you are a driver below 21 years are:

• V.C. § 23152(f): DUID (Driving while Under the Influence of Drugs);
• V.C. § 23153 VC (DUI with Injury);
• California Penal Code section 187: (DUI Murder, also known as Watson Murder – see also People v. Watson (1981) 30 Cal.3d 290 at:;and
• California Penal Code section 191.5(b): (Vehicular Manslaughter while Intoxicated).

See CALCRIM Number 2101 (“Driving with 0.08 Percent Blood Alcohol Causing Injury — Veh. Code § 23153(b): 

See also CALCRIM Number 591 (“Vehicular Manslaughter While Intoxicated – Ordinary Negligence — Pen. Code § 191.5(b)”):

CALCRIM Number 590 (“Gross Vehicular Manslaughter While Intoxicated — Pen. Code § 191.5(a)”): 

Refusal to Undergo Breath Testing

Refusal to take or the failure to follow through with a PAS or post-arrest breathalyzer/chemical test will lead to your driving privileges being suspended for a minimum of one year. The California DMV can also suspend your privilege to drive for two or more years if you have one or several priors for:

• A Wet Reckless (Vehicle Code section 23103:; or
• A Chemical Test Refusal (Vehicle Code section 23612: 

You are entitled to challenge your license suspension (including the suspension for declining to undergo chemical testing) by the DMV. To do this, you must first demand a DMV DUI Administrative Hearing: Note that this is not an automatic hearing. You must ask for it within ten days of arrest. Usually, the hearing is conducted via the telephone unless you request that the department holds it in person.

A lawyer can represent you at this hearing and will usually handle the entire hearing on your behalf. The DMV will cancel the license revocation/suspension if you prevail thereat. However, not everything is necessarily lost if you lose. You could then:

• Appeal the decision by the DMV administrative hearing officer (by requesting in writing and paying $120 within 15 days from the date of the notice of the hearing officer’s decision); and/or
• Apply for a “critical use” restricted license (unless your license suspension occurred due to refusing to undergo chemical testing).

When the license suspension period ends, you can have your driving privilege reinstated by:

• Filing SR-22 evidence of financial responsibility (see, for example: https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/financial-responsibility-insurance/);
• Keeping evidence of financial liability for up to three years; and
• Paying a reissue fee of $125 to the DMV.

Again, if you lose at the DMV hearing, you may be capable of obtaining a “critical use”/restricted license. This is similar to a learner’s permit. See: https://www.dmv.ca.gov/portal/driver-licenses-identification-cards/instruction-permits/.

It enables you to drive to and from school or work if you have no other means of transport. However, you will not be able to obtain this license if your license suspension results from your refusal to undergo chemical testing.

Collateral Consequences of Underage DUI

Sometimes the worst part of being convicted of underage DUI is not the criminal penalties but the long-term effects that follow, including:

Difficulty Securing a College Admission

Colleges are permitted to inquire about your criminal record on admission applications. They require you to disclose any criminal convictions when you apply for enrollment. If you have an underage DUI conviction, they may consider it and decline to enroll you as a result thereof (this only applies to the actual criminal conviction for DUI — BAC .05% or higher, impaired driving, and BAC .08% or higher).

And even if your admission is approved despite such a conviction, you may nevertheless be denied scholarships and other financial aid.

Difficulty Securing Employment

Employers also inquire about criminal records. They, too, may require you to disclose any criminal history on your job application. An underage drunk-driving conviction therefore may lead to disqualification for a job position. If you do not disclose your criminal history and your employer later discovers it, they will almost certainly terminate you.

Effect on Auto Insurance

After you are convicted of underage DUI, the court notifies your auto insurance company and the DMV. After learning of your DUI conviction, your vehicle insurance company will see you as a  high-risk motorist and thus raise your premiums. Or your insurer may terminate your insurance coverage, and you might have to look for another insurance provider (at a significantly increased cost).

Defending Against Underage DUI

You can beat DUI charges even if you are underage by hiring an experienced DUI defense lawyer. The most prevalent defenses include asserting that:

The Police Did Not Have Probable Cause to Pull You Over or Arrest You for DUI

A police officer must have reasonable suspicion or probable cause that you were driving under the influence to legally pull you over. In other words, they must have a legitimate reason to believe you were committing an offense, such as Reckless Driving (California Vehicle Code section 23103:. See also Reckless Driving Causing Injury (California Vehicle Code section 23104:Even after pulling you over and investigating you for DUI, they must also have probable cause to arrest you. For example, if your breath emits a strong alcoholic odor, you have watery or bloodshot eyes, or you failed a Field Sobriety Test (FST)

One of the elements the prosecutor must prove for a conviction of underage DUI is you were behind the wheel while the vehicle was being operated. The judge or jury cannot find you guilty of underage drunk driving if there is inadequate evidence that you were driving.

Under the state’s DUI statutes, driving an auto means you moved the car of your own volition. In this case, the precise distance you moved the auto is irrelevant. If the prosecutor – either from the Los Angeles County District Attorney’s Office (DA’s Office) or the Los Angeles City Attorney’s Office (CA’s Office) — cannot prove you drove the car; the judge or jury cannot find you guilty of underage drunk driving.

You Had Rising Blood Alcohol When You Underwent DUI Testing, Meaning Your Bac Was Lower When You Drove

The legal defense of rising blood alcohol involves a person’s BAC continuing to rise even after they cease drinking. Rising blood alcohol is a DUI defense because their body might take some time to metabolize the alcohol. See: https://pubs.niaaa.nih.gov/publications/aa72/aa72.htm (“Alcohol Metabolism: An Update”).

Your lawyer can assert that there was no measurable alcohol amount in your bloodstream when you drove, or that the blood alcohol content was undetectable and rose during the lengthy DUI investigation (including during the FST and even later during the booking process).

Your lawyer can also assert that:

• The DUI BAC testing equipment was not working properly;
• The law enforcement officer who arrested you did not advise you clearly or fully on your rights;
• The officer who administered the chemical test(s) did not properly follow the chemical testing procedure;
• You had a health condition, such as acid reflux or GERD;
• The BAC test results were within the margin of error for a legally acceptable BAC result;There was alcohol in your 
• mouth from a different source, for example, mouthwash; and
• You were on a low carbohydrate or high protein diet that could have influenced the BAC test results.

Crimes Related to Underage DUI

Certain crimes are usually prosecuted alongside or instead of underage DUI because they share various elements. Common ones include:

Underage Driving while in Possession of Marijuana (California Vehicle Code section 23222(b):

Underage motorists are usually charged with violating V.C. § 23224, possessing alcohol in an auto by an under-21 person. Per this statute, it is a criminal offense to carry alcohol in an auto if you are below 21 years unless the can or bottle is sealed, unopened, or full and:

• You are with a legal guardian, parent, or any other specified adult;
• You are transporting the alcohol as part of your job requirements working for somebody with a valid state-issued liquor license; or
• You are disposing of the alcohol per the orders of a parent, legal guardian, or specified adult.

Violating V.C. § 23224 is deemed a misdemeanor offense. Consequences upon conviction may include:

• Vehicle impoundment for a maximum of thirty days;
• A maximum fine of one thousand dollars; and
• Driver’s license suspension for one year.

Operating a Vehicle while Ingesting/Smoking Marijuana or Drinking (California Vehicle Code section 23221: 

V.C. § 23221 is the state’s law prohibiting smoking marijuana or drinking while driving or while riding as a passenger in an automobile. Violating this statute is deemed an infraction. You violate this law when, while being a passenger in a moving auto, you consume/use marijuana or drink alcohol. The first violation of this law is punishable by a maximum fine of one hundred dollars.

See also:

Public Intoxication (California Penal Code section 624(f):; and Possession of an Open Container in a Vehicle (California Vehicle Code section 23222(a)).