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It’s no surprise that people under 21 years old are drinking alcohol despite the laws prohibiting them from doing so, but what happens if you are caught drinking and driving if you are under 21?

California has a “zero-tolerance” policy for underage drinking and driving under Vehicle Code Section 23136. It is illegal for drivers under the age of 21 to operate a vehicle with a BAC of 0.01 or higher (that could be less than one drink). The legal limit for people 21 and over is .08, meaning if you are caught driving with a BAC of less than .08 and your driving was not impaired, you would theoretically not be charged or convicted with a DUI. However, if you are under the age of 21 with a BAC of .05 or more, you can be charged criminally, even if your driving was not impaired and you were driving perfectly fine. Under California Vehicle Code section 23140, it is illegal for a person under the age of 21 to have a BAC of 0.05 or to be found to be under the influence or affected by alcohol. The same does not apply for 21 and over people.

How does the zero-tolerance policy impact underage people that are caught with a BAC of .01 or more?

During a traffic stop, if the law enforcement officer suspects any amount of alcohol, the officer will confiscate the underage driver’s license and issue a 30-day temporary license. After 30 days, the license will be suspended for a year unless the driver is successful in winning their DMV APS hearing, where the under 21 DUI allegation is contested. However, unless you can prove there was no alcohol in your system, you are unlikely to be successful in winning the APS hearing.

What are the differences between getting pulled over for a suspected DUI when you are under 21 versus when you are 21 and over?

When an officer suspects you to be driving under the influence, they may ask you to perform a preliminary alcohol screening (PAS) test to see if you are over the legal limit. A PAS device is a breathalyzer machine used by the police on the scene of a DUI arrest. If you are over 21, you can refuse with no consequences to your license. However, if you are under 21, you must perform the PAS test or automatically get your license suspended for a year. But, if you take the PAS test and you blow a .01 or more, your license will also be suspended for a year. If you are over 21, and you blow a .01 and your driving was not impaired, the cop should let you go.

What are the differences between how the DMV handles a DUI for someone under 21 versus 21 and over?

The DMV is required to suspend or revoke the driving privilege of any person under age 21 who was caught driving under the influence of alcohol or drugs. Please note that the below-mentioned penalties are by the DMV only and do not include the penalties if convicted criminally in criminal court.

First-time offense

The consequence is a license suspension of 1 year, as opposed to a 4-month suspension if you are 21 and over.

Second-time offense (within 10 years)

The consequence is a license revocation for 2 years, as opposed to a 1-year suspension if you are 21 and older.

Third-time offense (within 10 years)

The consequence is a license revocation for 3 years, as opposed to a 1-year suspension if you are 21 and over.

Unlike individuals that are 21 and up, individuals that are under 21 with a revoked license cannot get a restricted license. An underage driver who loses at a DMV hearing may be able to get a “restricted hardship / critical use license.” This is a special license that is like a learner’s permit. It allows the underage driver to drive to and from work or school if no other transportation is available. This option is not available if the individual refused to take a PAS test (or a breath or blood test). In that case, it will be a hard 1-year license suspension, meaning no driving whatsoever.

What are the differences between how the criminal court handles a DUI for someone under 21 versus 21 and over?

In criminal court, under 21 individuals may be charged and convicted with the standard per se DUI under Vehicle Code Section 23152(b) if they have a BAC of .08 or more. They can also be charged and convicted under Vehicle Code Section 23152(a) if their driving was impaired. The penalties under Vehicle Code Section 23152 are typically the same as someone who is 21 and over: a license suspension, 3 to 5 years of misdemeanor probation, fines and fees, an alcohol education program; and even potentially jail time (up to 6 months for a first time non-injury DUI). Under 21 individuals can also be charged and convicted for an “Underage” DUI under Vehicle Code section 23140, if they had a BAC of .05 or more. The penalty for an Underage DUI is typically a 1-year driver’s license suspension, some fines and fees, and an alcohol education program.

You can also learn more about 21 and over DUIs by watching this video from Partner, Stefano Molea.

If you or a loved one is facing DUI criminal charges, give us a call today at (619) 295-3555 to set up a case evaluation with one of our attorneys.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.