What is the Legal Definition of Underage Drinking and Driving under VC 23136?

California VC 23136 is the zero-tolerance law that prohibits impaired driving by underage drivers. A prosecutor will file charges against you under this statute if you are 21 years or younger and have been arrested with a detectable amount of alcohol in your blood. Under VC 23136, any detectable blood alcohol concentration (BAC) of 0.01% or higher constitutes a violation, regardless of impairment.

The violation is a civil offense that can lead to the State Department of Motor Vehicles (DMV) suspending your driver's license. The penalty is an administrative per se suspension that can affect you in several ways. If you are not yet a licensed driver, the suspension will result in a one-year delay when you apply for one. If you have a driver’s license, the arresting officer will confiscate it, and the DMV will suspend it until you undergo an administrative hearing.

The legal definition of this offense includes the following elements, which the prosecutor must prove beyond a reasonable doubt for a court to find you guilty. A skilled attorney will ensure you understand this, the likely penalties, and how to avoid a life-changing outcome.

The Legal Meaning of VC 23136

The law against drunken or drugged driving in California is not specific. It includes different offenses that different people can commit while driving while intoxicated. There are DUI laws that apply to ordinary drivers, commercial drivers, and underage drivers. While teenagers can obtain a driver’s license in the state, they are still considered underage at 21. A young driver is issued a provisional license after completing the required training and passing the driving test. The permit comes with specific limitations. Including not driving past 11 pm and before 5 am, and not having a passenger younger than 20 years in the vehicle unless an adult driver is present.

These restrictions for underage drivers aim to reduce accidents as the driver gradually masters the driving skill. Once they are of the required age, the driver can apply for an actual driver’s license.

Underage drivers are also not allowed to drink or consume drugs and drive under the zero-tolerance law. The California legislature enacted this law in 1994 to deal with the rampant issue of underage DUI. Unlike adult drivers, minors lack the mental capacity to make rational decisions while on the road, especially when incapacitated. These are the elements of this crime that constitute its legal definition:

  • You are aged 21 years or younger
  • You drove a motor vehicle after drinking an alcoholic drink.
  • Your blood alcohol concentration level was at least 0.01%

A BAC of 0.01% means that even a slight amount of alcohol in your system can lead to charges under this statute. Alcohol raises the BAC of a person very quickly. It continues to rise with the amount of alcohol they consume. Thus, an underage driver will likely test positive for alcohol in their system if they have a small amount of an alcoholic drink. An alcoholic drink, in this case, refers to any beverage with alcohol in it, not just alcohol. Here are non-alcoholic substances that have alcohol content in them:

  • Homeopathic medications
  • Cough syrups
  • Nighttime flu formulas like Nyquil
  • Topical ointments for numbing the mouth

How The Police Determine BAC for Underage DUI Cases

When a law enforcement officer suspects an underage driver of driving while intoxicated, they must conduct a chemical test to determine the amount of alcohol in the driver’s system. The test results are critical evidence when the driver faces a trial for underage DUI. Generally, chemical tests for DUI cases are performed after an arrest. However, an officer can administer a PAS test on an underage driver before arresting them (either a breath or blood test). If you refuse to submit to the test, you will face a one-year suspension of your driver’s license.

Breath tests are widespread in DUI cases. The police use a breathalyzer to determine the level of alcohol in a driver’s system. A blood test can be required if, for any reason, the driver cannot provide a breath sample. For example, if the driver is too intoxicated to blow into a breathalyzer or is unconscious, the officer will run a blood test. A blood test will also reveal any drugs the driver may have consumed before or while driving.

However, under the state’s zero-tolerance law, the police can conduct a preliminary screening for alcohol on an underage driver suspected of impaired driving. This is usually a screening that the police conduct by the roadside. An officer gives you a small breathalyzer, or a device that can use your breath sample to determine your blood-alcohol concentration level. If the test comes back negative for alcohol, the officer allows you to go. However, if you test positive for alcohol, the officer will arrest and charge you with underage DUI.

Generally, preliminary DUI tests are optional for ordinary and commercial drivers. However, they are compulsory for underage drivers and drivers on DUI probation. When the DMV issues a provisional driver’s license to a driver aged 21 or younger, the driver must submit to PAS tests if an officer suspects them of driving while impaired. Thus, you cannot refuse to submit to a PAS test when stopped by the police on suspicion of drunk driving. The Department of Motor Vehicles can suspend your license for twelve months if you do so, even if you are not guilty of underage DUI.

When the DMV suspends your license for refusing to submit to a preliminary screening test, you lose your eligibility for a restricted driver’s license, which can be very helpful when you lose your license due to suspension for underage DUI.

Possible Penalties for Underage DUI

Remember that underage DUI is not considered a crime in California but a civil offense. Thus, you will not undergo a criminal trial, which can result in a court fine or a jail sentence, like an ordinary driver facing DUI charges. Instead, your case will be determined by the DMV, the department that issues and reinstates driver’s licenses for all drivers in the state. The possible penalty for this violation is suspension of your license. The suspension is an administrative per se suspension by the DMV, which happens automatically after you are arrested and charged with underage DUI.

If you operate a vehicle without a driver’s license and are caught driving while intoxicated as an underage driver, the administrative per se suspension will affect you differently. Since the DMV anticipates that you will soon apply for a driver’s license, it will delay the issuance of your license by one year from the date you file your application.

When an officer stops you on suspicion of drunk driving, they will investigate you before arresting and charging you with DUI. If an officer finds out you are 21 or younger, they can conduct a PAS test to determine your BAC level. If the test is positive for alcohol, the officer will cite you for a VC 23136 violation. The officer will confiscate your license at that instance and notify the DMV of the breach. The officer will issue you a temporary permit only for one month. The DMV will review your case within that time to determine whether to uphold or rescind the suspension.

After the 30-day suspension, the suspension of your license will take effect. However, you can request the department for a hearing to fight the suspension within ten days of the citation. If you do this, the suspension will not automatically take effect until the DMV hears and determines your case.

The DMV automatically suspends your license if you refuse to submit to a PAS test. However, you can request an administrative hearing within ten days of the suspension to challenge the suspension.

Fighting a License Suspension for Underage DUI

A license suspension means you will not drive any vehicle until the DMV reinstate your license. The police give you a temporary permit that you can use for only 30 days, after which the suspension takes effect. This is a severe penalty, especially if you must drive to school, work, and other places. Fortunately, the DMV allows you to fight the automatic suspension of your driver’s license, which happens when you are arrested for underage DUI. You are given this opportunity when you request an administrative hearing within ten days of your arrest.

If the DMV grants you a hearing, the suspension will not take effect after 30 days of your arrest. However, the final decision regarding your license will be determined after the hearing. The hearing will only postpone the automatic suspension and give you enough time to plan your defense. If you lose the case, the DMV will suspend your license for the required time after the hearing. However, the DMV will reinstate your license if you win the case.

Taking action immediately after your arrest will improve your chances of obtaining a favorable outcome in your case. You can request an administrative hearing from the DMV regional offices near you. This works even better when you have a defense attorney. The attorney can request an administrative hearing on your behalf and even prepare a solid defense to fight the suspension.

Administrative hearings are very different from criminal proceedings. An administrative judge, usually an officer appointed by the DMV and without prior legal training, conducts the hearing. Additionally, most of the hearings are done over the phone. You can make a special request if you prefer to appear before the administrative judge in person. The hearings are also conducted quickly, which can work to your advantage. With the assistance of your attorney, you can easily convince the DMV to reinstate your license. Here are the critical issues the judge will discuss during the hearing:

  • Whether you were driving a vehicle at the time of your arrest
  • If the police legally detained you
  • If your BAC level was 0.01% or more, or you refused to submit to a chemical PAS test

You can represent yourself in this hearing or have a defense attorney present. You can request a public defender if you need an attorney and cannot afford one. An attorney will answer all the questions on your behalf. They can even appear in the hearing on your behalf, unless there is a specific request for your presence.

Your aim should be to win the hearing so that the DMV can cancel the suspension on your license. When this happens, you will be given your driver’s license back if you had one. However, losing your hearing means you must wait until your driver’s license is suspended to file for reinstatement. This, too, is a process that you could need the help of an attorney to navigate.

Restricted Hardship License for Underage DUI

When your driver’s license is suspended in California, you cannot drive any vehicle until the DMV reinstates it. You have to meet all the conditions of your suspension, including completing the suspension period, before filing for reinstatement. If the suspension is for a year, you cannot drive any vehicle within that year. This penalty can significantly impact individuals who rely on driving for work, school, or other essential activities. Fortunately, the DMV allows you to apply for restricted hardship licensing to use within the suspension period to ease the limitations that come after a license suspension.

A restricted hardship driver’s license has eligibility criteria that you must meet for the DMV to issue. This criterion includes the following:

  • You must demonstrate that you did not fail to submit to a PAS or any other test to determine your BAC
  • According to the DMV's opinion, proof that you do not have access to any other means of transport or that other means available to you are inadequate.
  • Proof that you need to drive to school and back, to work and back, you have a sick family member, or you need a vehicle to run a business that caters to the needs of everyone in your family.

The DMV considers these requests on a case-by-case basis. If you have a valid reason to want a driver’s license, the DMV will grant you a restricted hardship license. This must only be used for the purpose for which you have applied it. For example, if you apply for a restricted license for work, school, or urgent family needs, using it to drive to parties or on road trips will be unlawful.

Additionally, you must serve the 30-day license suspension, mandatory after an underage DUI arrest, to obtain a restricted license.

Reinstating a Driver’s License after Suspension for Underage DUI

If the DMV suspends your license after an underage DUI, you can reinstate it after the suspension period. This is generally a complex process that a skilled attorney can help you with. There are requirements to meet and legal processes to follow to receive your license back. Here are some of the requirements you must meet for a successful reinstatement:

Paying a Reinstatement Fee

The DMV charges a fee of $100 to reinstate a license after an underage DUI. The payment must be paid to the department. Payment can be made through the DMV’s virtual office, by mailing a cashier’s check or money order, or in person at a local DMV office.

Providing Proof of Financial Responsibility

The DMV will require you to file a form demonstrating that you have auto insurance that provides minimum coverage as the law mandates. You do this by filling out and submitting an SR-22 form. It is a safety responsibility document that verifies you have auto insurance.

You must contact your auto insurance provider and request an SR-22 for the DMV. The company will submit the necessary documents to the DMV on your behalf. Insurance companies charge a fee for this process. The exact amount varies from one company to another.

Maintain the Financial Responsibility for 36 Months

Once the DMV reinstates your driver’s license, you must maintain the financial responsibility by filing an SR-22 form annually for at least three years.

Find a Competent DUI Attorney Near Me

Although you can obtain a driver’s license as an underage driver (21 years and younger), you can easily lose it to suspension for underage driving. You violate VC 23136 when you drive with a blood-alcohol level of 0.01% or more. Even a slight amount of alcohol can lead to a license suspension. It helps to seek the advice and support of a skilled attorney to understand what your charges entail and your options.

At Koenig Law Office, we understand how convenient it is to drive yourself to critical places like school and work. We know how damaging a driver’s license suspension can be. That is why we offer assistance in fighting the suspension of your license after an underage DUI arrest. We can defend your rights and use our best strategies to compel the DMV to cancel the suspension. Call us at 661-793-7222 to learn more about your legal situation and our services.