Under 21 DUI in California: What Vehicle Code 23136, 23140, and 23152 Mean for Young Drivers
Under 21 DUI in California: The Short Version
The short answer: California treats drinking and driving by anyone under 21 under three separate laws, and which one applies depends on the blood alcohol level. Vehicle Code section 23136 is the zero tolerance law, which triggers a DMV license suspension at 0.01 percent or higher without any criminal charge. Vehicle Code section 23140 makes driving with 0.05 percent or higher an infraction for drivers under 21. Vehicle Code section 23152 is the ordinary misdemeanor DUI that applies to every driver, and an under-21 driver at 0.08 percent or higher, or who is impaired at any level, can be charged with it just like an adult. Our DUI defense practice handles all three for students and young workers in Riverside, Redlands, San Bernardino, Victorville, Irvine, and Los Angeles.
The license is usually the biggest consequence. For a 19-year-old at UC Riverside or Victor Valley College, a one-year suspension can mean losing a job, a commute, and a semester. The DMV action runs separately from the court case and has its own ten-day deadline, so a young driver who waits for the court date before calling a lawyer has often already lost the license fight. The sections below explain each law, the DMV process, and the defenses that actually work.
Vehicle Code 23136: The Zero Tolerance Law
What the law says. Vehicle Code section 23136 makes it unlawful for a person under 21 to drive with a blood alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening device or another chemical test. The statute is a civil, administrative provision rather than a crime, and the consequence is a DMV suspension rather than a court sentence. Even a single drink, mouthwash, or a cough medicine can produce a reading at that level, which is why the zero tolerance cases are often the most defensible on the science.
The officer will ask for a preliminary alcohol screening test. Adult drivers can usually decline the roadside handheld breath test before arrest, but Vehicle Code section 23136 requires drivers under 21 to submit to it when an officer lawfully stops them and has reason to believe they have been drinking. A refusal leads to its own one-year suspension under Vehicle Code section 13353.1, which is often longer than what the test result would have caused. Our guide on refusing a breathalyzer in California explains the difference between the roadside screening test and the evidentiary test after arrest.
What the DMV does. Under Vehicle Code section 13353.2, the DMV suspends the license of a driver under 21 who tested at 0.01 percent or higher for one year. The officer takes the license at the roadside, issues a temporary license, and sends the paperwork to the DMV. You have ten days from the date of the notice to request an administrative hearing, and if you miss that window the suspension takes effect automatically. Our guide on the DMV hearing after a DUI explains how to request the hearing and what the hearing officer must find.
Vehicle Code 23140: The Under 21 Infraction at 0.05 Percent
What the law says. Vehicle Code section 23140 makes it an infraction for a person under 21 to drive with a blood alcohol concentration of 0.05 percent or more. The prosecutor must prove, beyond a reasonable doubt, (1) that you drove a vehicle, (2) that you were under 21 at the time, and (3) that your blood alcohol concentration was 0.05 percent or higher at the time of driving. The statute includes a presumption that if a chemical test within three hours of driving shows 0.05 percent or more, the level was 0.05 percent or more at the time of driving, which the defense can rebut with evidence about absorption and timing.
An infraction is not a crime, but it is not nothing. A conviction under Vehicle Code section 23140 carries a fine, a required alcohol education program for first offenders, and a license suspension through the DMV. The infraction appears on the DMV record and can be treated as a prior for some purposes, and insurers see it. It is still far better than a misdemeanor, which is why one of the most common defense results in an under-21 case with a borderline reading is a reduction from a Vehicle Code section 23152 charge to a Vehicle Code section 23140 infraction.
Where the case is heard. Infractions are handled in the traffic and misdemeanor departments of the Superior Court, which for Inland Empire drivers usually means the Riverside Hall of Justice, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, or the Victorville courthouse, and for Orange County students the Harbor Justice Center in Newport Beach or the Central Justice Center in Santa Ana. Confirm the location on the citation and the court's current website. Our Victorville criminal defense attorney page covers the High Desert courthouses for students in Hesperia, Apple Valley, and Barstow.
Vehicle Code 23152: The Full Misdemeanor DUI for Any Age
The ordinary DUI applies to young drivers too. Vehicle Code section 23152, subdivision (a), prohibits driving while under the influence of alcohol, and subdivision (b) prohibits driving with a blood alcohol concentration of 0.08 percent or more. Neither has an age element, so an 18, 19, or 20-year-old at 0.08 percent faces the same misdemeanor charge, the same court process, and the same sentencing range as a 40-year-old. Subdivision (f) covers driving under the influence of drugs, including marijuana, which our guide on marijuana and drug DUI explains.
What the prosecutor must prove. For a charge under subdivision (a), the prosecutor must prove (1) that you drove a vehicle and (2) that when you drove, you were under the influence, meaning your mental or physical abilities were so impaired that you could no longer drive with the caution of a sober person using ordinary care. For a charge under subdivision (b), the prosecutor must prove (1) that you drove and (2) that your blood alcohol concentration was 0.08 percent or more at the time of driving. Most under-21 drivers are charged under both subdivisions at once, and the defenses differ for each.
Penalties for a first offense. A first misdemeanor DUI is punishable by up to six months in county jail, fines and penalty assessments, a DUI education program, and informal probation, and the court suspension is separate from the DMV suspension. Judges in Riverside and San Bernardino County rarely impose jail on a first offender with no aggravating facts, but a high blood alcohol level, a collision, a child passenger, or a refusal changes the picture. Our guide on whether you need a lawyer for a first DUI explains what a first-offense resolution typically looks like.
The wet reckless and other reductions. When the evidence is close, a prosecutor may offer a plea to reckless driving involving alcohol under Vehicle Code section 23103.5, commonly called a wet reckless, or to a dry reckless under Vehicle Code section 23103. Our guides on the wet reckless and on reckless driving explain the differences. For an under-21 driver, the DMV one-year suspension under the zero tolerance law can still apply even when the court case is reduced, which is why the two tracks have to be handled together.
Related Charges That Often Accompany an Under 21 DUI
Alcohol in the car. Vehicle Code section 23224 prohibits a driver under 21 from knowingly driving with an alcoholic beverage in the vehicle, with exceptions for sealed containers being transported at a parent's or employer's direction, and it can lead to a vehicle impound. Possession of alcohol by a minor under Business and Professions Code section 25662 is a separate charge. Both are often added to a traffic stop that began as a DUI investigation.
Fake identification and open containers. Using a false ID to buy alcohol can be charged under Business and Professions Code section 25661, and a driver's possession of an open container in the vehicle can be charged under Vehicle Code section 23222. These add-on charges are frequently dismissed as part of a resolution of the main DUI count, but they should not be ignored, because each one can separately affect the license under Vehicle Code section 13202.5, which allows a one-year suspension or delay of driving privileges for drivers aged 13 to 20 convicted of certain alcohol and drug offenses.
Drivers under 18 go to juvenile court. A DUI by a driver under 18 is handled in the juvenile delinquency court under Welfare and Institutions Code section 602 rather than in adult criminal court, and the outcomes are dispositions rather than convictions. The DMV consequences still apply. Parents in Fontana, Pomona, Santa Ana, or Lancaster who get a call about a 17-year-old driver should treat the juvenile case as seriously as an adult case, because the record follows the young driver.
How the DMV Hearing Works for Under 21 Drivers
Two suspensions can run at once. The zero tolerance suspension under Vehicle Code section 13353.2 and any suspension from a conviction in court are separate actions. The DMV hearing is the only forum where the zero tolerance suspension can be contested, and the issues are narrow: whether the officer had reasonable cause to believe you were driving, whether you were lawfully detained, and whether the test showed 0.01 percent or more. The hearing officer applies a lower standard of proof than a criminal jury.
Defenses that work at the DMV. Preliminary alcohol screening devices are not maintained and calibrated as rigorously as evidentiary breath machines, and the calibration and accuracy records are discoverable. Mouth alcohol from recent drinking, burping, or dental work can produce an elevated reading that does not reflect blood alcohol, and the observation period before the test matters. An unlawful stop also defeats the suspension, and our guide on the 1538.5 motion to suppress explains how an illegal stop is challenged in court on the same facts.
Restricted licenses. Under-21 drivers who lose the DMV hearing may be eligible for a critical need restricted license in limited circumstances, such as a documented need to drive to school, work, or medical care with no alternative transportation. Eligibility rules change, so confirm the current requirements with the DMV. A lawyer who handles the DMV hearing can also time the hearing request to extend the temporary license.
Defenses to an Under 21 DUI Charge in Court
No driving. The prosecutor must prove that you drove, which becomes an issue when the car was parked, when the police arrived after a collision, or when several people were in the car. Our guide on DUI while sleeping in a parked car explains how the driving element is contested.
Unlawful stop or detention. Police need reasonable suspicion for a traffic stop, and a stop based on a hunch, on the driver's age, or on leaving a party is not enough. DUI checkpoints must follow the rules described in our guide on whether DUI checkpoints are legal in California. If the stop was unlawful, the test results are suppressed under Penal Code section 1538.5 and the case usually ends.
Rising blood alcohol. Alcohol takes time to absorb, so a driver who finished drinking shortly before being stopped may have had a lower blood alcohol concentration at the time of driving than at the time of the test an hour later. The three-hour presumption in Vehicle Code section 23152, subdivision (b), can be rebutted with timing evidence and expert testimony. This defense is most useful in a borderline case near 0.05 percent or 0.08 percent.
Test problems. Breath machines must be calibrated and maintained on a schedule, the officer must observe the driver for a period before the test, and blood samples must be properly drawn, preserved, and tested. Discovery under Penal Code section 1054.1 includes the maintenance and calibration logs, and a lawyer who reads them finds problems more often than people expect. Our guide on what makes a criminal case weak describes what we look for.
Diversion and alternatives. Misdemeanor diversion under Penal Code section 1001.95 is not available for DUI charges, but military diversion under Penal Code section 1001.80 expressly includes DUI for current and former service members, which matters for young Marines from Twentynine Palms and soldiers from Fort Irwin. Mental health diversion under Penal Code section 1001.36 may be available in some DUI cases when a qualifying diagnosis contributed to the offense. Our guides on military diversion and mental health diversion explain the requirements.
Collateral Consequences for Students and Young Workers
School and financial aid. Many colleges require students to report arrests and convictions, and a DUI can trigger student conduct proceedings, loss of housing, or loss of a scholarship, which is one reason a reduction to an infraction or a dismissal matters so much for an 18-year-old. Study abroad programs and some professional schools ask about convictions directly.
Employment, licensing, and insurance. A misdemeanor DUI conviction appears on background checks, and jobs that involve driving, nursing, teaching, or security clearances take it seriously. Insurance rates rise sharply for young drivers after any alcohol-related DMV action. A later dismissal under Penal Code section 1203.4, explained in our guide on expungement, helps with private employers but does not erase the DMV record.
Immigration. A simple first DUI is generally not treated as a crime involving moral turpitude, but a DUI with drugs, a DUI on a suspended license, or multiple DUIs can create problems for students on visas and for young lawful permanent residents. Our guide on immigration consequences of a criminal conviction explains why the charge and the plea language matter.
Frequently Asked Questions
Can I go to jail for an under 21 DUI in California?
Only if you are charged with a misdemeanor under Vehicle Code section 23152. The zero tolerance law under Vehicle Code section 23136 is a civil DMV matter with no jail, and the 0.05 percent law under Vehicle Code section 23140 is an infraction with no jail. A first misdemeanor DUI can carry up to six months in county jail, but first offenders without aggravating facts rarely receive jail in Riverside or San Bernardino County.
How long is the license suspension for a minor DUI?
One year is the standard DMV suspension for drivers under 21. Under Vehicle Code section 13353.2 the zero tolerance suspension is one year, a refusal of the preliminary alcohol screening test brings a one-year suspension under Vehicle Code section 13353.1, and a conviction can add a separate court-ordered suspension. A timely DMV hearing request within ten days is the only way to contest the administrative suspension.
Can a minor refuse the breathalyzer in California?
Drivers under 21 are required to take the roadside preliminary alcohol screening test. Vehicle Code section 23136 treats driving as consent to that test for under-21 drivers, and a refusal leads to a one-year suspension. After an arrest, every driver must submit to a breath or blood test under the implied consent law in Vehicle Code section 23612, and a refusal increases the penalties.
Will an under 21 DUI go on my permanent record?
It depends on which law applied. A zero tolerance suspension is a DMV action, not a conviction, though it stays on the DMV record for years. A Vehicle Code section 23140 infraction and a Vehicle Code section 23152 misdemeanor are both convictions, and a DUI conviction counts as a prior for ten years under Vehicle Code section 23540 if there is a later DUI. Our guide on a second DUI within ten years explains the prior rules.
Can an under 21 DUI be reduced to an infraction?
Yes, in the right case. When the blood alcohol level is near the legal limit, when the stop has problems, or when the driver has a clean record and strong mitigation, prosecutors in the Inland Empire and Orange County do reduce Vehicle Code section 23152 charges to a Vehicle Code section 23140 infraction or to a wet or dry reckless. The DMV suspension has to be fought separately at the hearing.
Do I need a lawyer for a zero tolerance DMV suspension?
A lawyer can handle the DMV hearing and the court case together, and the hearing is where the license is won or lost. Daniel Gramling, Esq. offers flat-fee DUI defense and limited-scope options that include the DMV hearing, and for a student the cost of a year without a license is usually far higher than the cost of the defense.
Talk to a DUI Defense Lawyer for Young Drivers
Gramling Law Group defends students and young drivers charged with DUI in Riverside, Redlands, San Bernardino, Loma Linda, Rancho Cucamonga, Victorville, Hesperia, Apple Valley, Pomona, Irvine, Fullerton, Long Beach, and Los Angeles at the Riverside Hall of Justice, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Victorville courthouse, the Harbor Justice Center, the Central Justice Center, and the Clara Shortridge Foltz Criminal Justice Center, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options that cover the DMV hearing and the court case. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our DUI defense practice serving the Inland Empire, Los Angeles County, and Southern California.
We also represent young drivers through our Riverside criminal defense attorney, Victorville criminal defense attorney, and Irvine criminal defense attorney pages, and across the region through our Inland Empire criminal defense practice.
Gramling Law Group
3600 Lime St, Bldg 2, Riverside, CA 92501
Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
Follow Daniel Gramling on Instagram: @californiafamilylawyer
Comments