Vehicle Code 23136 VC - Underage DUI (Zero Tolerance Law)
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1. What is Underage DUI (Zero Tolerance Law)?
2. What are examples of Underage DUI (Zero Tolerance Law)?
California’s Vehicle Code § 23136 VC makes it illegal for anyone under the age of 21 to drive with a blood alcohol concentration (BAC) of 0.01% or higher. Because the threshold is so low, many young drivers can face consequences for even a very small amount of alcohol in their system. To better understand how this law applies, here are some common examples of underage DUI under the Zero Tolerance Law.
Example 1: A Single Drink at a Party
A 20-year-old attends a college party and drinks just half a beer. On the way home, they are stopped at a DUI checkpoint. A preliminary breath test (PAS test) shows a BAC of 0.02%. Even though the driver does not appear drunk and is well below the standard 0.08% legal limit for adults, they can still be cited for violating VC § 23136 because any measurable alcohol is prohibited for underage drivers.
Example 2: Cough Syrup or Medication Containing Alcohol
An 18-year-old driver takes an over-the-counter cough medicine before heading to school. The medication contains trace amounts of alcohol, which results in a BAC reading of 0.01%. Although the teen never intended to drink alcohol, the reading is enough for the DMV to suspend their driver’s license under the Zero Tolerance Law.
Example 3: A Driver After a Sports Game
A 19-year-old drinks one hard seltzer after a baseball game and then drives home. They are pulled over for a broken taillight, and the officer smells alcohol. A breath test shows a BAC of 0.03%. Even though they are not impaired, this is still considered an underage DUI because the BAC exceeds 0.01%.
Example 4: Borrowed Car with Open Container
A 20-year-old borrows a friend’s car and drives with an open container of alcohol inside. While the driver hasn’t had much to drink, the officer administers a breath test showing 0.02% BAC. The open container and the positive BAC reading make this a clear violation of California’s Zero Tolerance Law.
Example 5: Multiple Repeat Violations
A 19-year-old driver has previously been cited for underage DUI. After being caught again with a BAC of 0.01%, the DMV imposes harsher penalties, including a longer license suspension. Even a repeat violation with minimal alcohol is treated seriously under VC § 23136.
3. What are the penalties for Underage DUI (Zero Tolerance Law)?
California’s Zero Tolerance Law under Vehicle Code § 23136 VC imposes strict consequences on drivers under 21 who are caught with any measurable amount of alcohol (0.01% BAC or higher) in their system. Unlike standard DUI cases, these violations are generally handled through the California Department of Motor Vehicles (DMV) as administrative actions rather than criminal charges.
DMV Penalties for First Violation
If an underage driver violates VC § 23136, the DMV can impose the following penalties:
Driver’s license suspension for one year. If the driver does not yet have a license, the DMV will delay their eligibility to apply for one.
Requirement to attend a DUI education program. This program is designed to inform young drivers about the dangers of drinking and driving.
Possible fines and fees. While the violation itself is not a criminal offense, the administrative process often carries additional financial burdens.
Penalties for Repeat Offenses
If a driver under 21 is caught violating the Zero Tolerance Law more than once, the penalties increase:
License suspension for two or more years.
Mandatory completion of longer DUI education programs.
Potential installation of an Ignition Interlock Device (IID), depending on the circumstances.
Additional Consequences
While VC § 23136 is not a criminal statute, an underage driver may face additional charges if the situation involves:
BAC of 0.05% or higher – This can trigger separate charges under Vehicle Code § 23140 VC (Underage DUI with BAC of 0.05%+).
BAC of 0.08% or higher – This can lead to a standard adult DUI charge under Vehicle Code § 23152 VC.
Possession of alcohol in the vehicle – May result in charges under Vehicle Code § 23224 VC (possession of alcohol in a vehicle by a person under 21).
Refusal to take a chemical test – Automatically results in a one-year license suspension.
Long-Term Impact
Even though a violation of VC § 23136 is an administrative matter and not a criminal conviction, it can still create serious problems for young drivers:
Increased car insurance premiums.
Difficulty obtaining or maintaining a driver’s license.
Negative impact on employment or education opportunities where driving is required.
4. What are legal defenses for Underage DUI (Zero Tolerance Law)?
Although California’s Zero Tolerance Law under Vehicle Code § 23136 VC is very strict, there are still ways to challenge an underage DUI charge. Because the law punishes drivers under 21 for even a 0.01% BAC, many cases involve mistakes, faulty testing, or circumstances that can be fought in court or at a DMV hearing. An experienced DUI defense attorney can raise several legal defenses to protect your rights.
Common Defenses to VC § 23136 Charges
1. Inaccurate Breath Test Results
Preliminary alcohol screening (PAS) devices are not always reliable. Factors such as improper calibration, device malfunction, or operator error can produce false BAC readings. If the test was not administered correctly, the results may be challenged.
2. Contamination from Mouth Alcohol
Trace alcohol in the mouth—not from actual intoxication—can create a false BAC result. This can happen if the driver recently used mouthwash, breath spray, cough syrup, or even consumed certain foods that contain small amounts of alcohol.
3. Lack of Probable Cause for the Stop
Police officers must have a valid reason (probable cause) to pull someone over. If the officer stopped the underage driver without justification—such as racial profiling or a “hunch”—then any evidence gathered, including the BAC results, may be thrown out.
4. Unlawful Administration of the Test
California law requires that officers follow strict procedures when administering breath or blood tests. If law enforcement failed to properly observe the driver, mishandled the test, or violated Title 17 regulations, the results may not be admissible.
5. Driver Was Not Operating the Vehicle
For a violation of VC § 23136, the prosecution must show that the underage individual was actually driving. If the person was sitting in a parked car with the engine off, or if another person was the actual driver, the case may not hold.
6. Medical Conditions Affecting Results
Certain medical issues—such as acid reflux, GERD, diabetes, or ketosis—can lead to falsely elevated breath test readings. An attorney can present medical evidence to challenge the BAC results.
7. Violation of Constitutional Rights
If police officers violated the driver’s constitutional rights—for example, conducting an illegal search and seizure or failing to inform the driver of their rights—then the case may be dismissed.
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