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Under 21 DUI

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DUI UNDER 21 IN CALIFORNIA

Driving Under the Influence AND Under Age: A Razor’s Edge Legal Problem

The consequences of driving under the influence of alcohol or drugs can be devastating. These consequences include:

  • the revocation of professional licensure (nurses, radiologists, truck driver’s, etcs.)
  • the suspension or revocation of driver’s license,
  • incarceration,
  • thousands of dollars in fines,
  • the forced installation of an ignition interlock device,
  • mandatory alcohol education classes
  • restitution repaid to any victims for damage to health or property
  • the potential death of a human being

Ironically enough, for people between the age of 18 and 21, it may be easier to defend against a DUI charge than for those who are already adults and may result in extremely light criminal punishment.

Under 21 years of age but over 18? The Legal Limit is .04% BAC.

California Vehicle Code section 23140(a) makes it a crime for anyone under the age of 21 years but over 18 who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

.05% Blood alcohol concentration is where the act of driving becomes a crime. While it is always unwise to drive with any measurable amount of alcohol in your system, a person should try to keep their blood alcohol at .04% or lower, essentially drinking no more than one beer before.

In order to be found guilty, the prosecuting attorney must prove beyond a reasonable doubt that

  1. At the time of driving, the defendant was under the age of 21 years and
  2. At the time of driving, under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and
  3. At the time of driving had 0.05 percent or more, by weight, of alcohol in his or her blood.

(California Vehicle Code section 23140(b))

Why would this charge be easier to defend against than adult DUIs?

It is easier to defend against a DUI charge than for those who are already adults because t instead for a person 18 to 21, the prosecutor must prove three elements of the crime beyond a reasonable doubt.

For adults, who are charged with DUI, they are generally charged with violating both Vehicle Code section 23152(a) and 23152(b).

Each of those crimes only has two elements.

For Vehicle Code section 23152(a)

  1. The defendant drove a vehicle
  2. At the time of driving, the defendant was under the influence of an alcoholic beverage

Under the influence means that due to the effects of alcohol, a person is no longer able to operate a motor vehicle with the ordinary standard of care of a sober person under like or similar circumstances.

This offense has only two elements. The prosecutor does not have to prove someone over 21 had a specific blood alcohol concentration.

Compare with Vehicle Code section 23152(b)

  1. The defendant drove a vehicle
  2. At the time of the driving, the defendant’s blood alcohol concentration was .08% or higher

For this charge, the prosecutor must prove a specific blood alcohol concentration (.08%) and that it was that high at the time of driving. Again only two elements, and no requirement that bad driving be shown.

But if you’re under 21 and over 18, the prosecutor must prove all three elements (driving) (under the influence) (with .05% or higher). This puts the defendant at a slight advantage because the more elements the prosecutor must prove the more doubt the defense attorney can raise at a trial.

If you are under 18 years of age, the Legal Limit is .00% BAC?

Pursuant to California Vehicle Code section 23136(a), it is unlawful for a person under the age of 21 years who has a blood alcohol concentration of .01% or greater to derive a vehicle.

A person is presumed to be guilty if, at the time the person was driving, under the age of 21 years, AND the person had consumed alcohol and their BAC was .01%

California Vehicle Code section 23136 specifically states (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.

Just like adult DUI this charge only has two elements.

  1. The defendant drove a vehicle
  2. At the time of driving, the defendant had .01% or higher BAC.

This is an extremely low burden and basically anyone charged with this offense will have a very uphill battle defending against it.

What’s the Worst that could happen?

Despite what logic and reason would seem to dictate a DUI under the age of 21 is an infraction. It cannot be and is not punished by jail. It does not result in probation or any other sanction.

California Vehicle Code section 42001.25 states that a person convicted of violating vehicle code section 231340 (DUI age 18-2) shall be punished (a) By a fine of one hundred dollars $100, increasing by $100 dollars for each infraction conviction of the same crime.

For those charged under Vehicle Codes section 23136, (DUI under 18), those are juvenile court proceedings prosecuted under Welfare and Institutions Code sections 602 and 603, covered elsewhere on our website (See Juvenile Court Overview)

What should I do if I am charged with DUI under 21?

You should immediately contact an experienced criminal defense attorney, like those at Manshoory Law Group, APC to assist you in analyzing the specific facts of your case, preparing and presenting defenses before and during trial, and making sure you understand your rights and helping you enforce them. The risks of a DUI under 21 convictions is too great to go-it alone. Call now for a free consultation.