The Zero Tolerance Law under California Vehicle Code 23136 VC punishes underage drivers (below 21 years) found with any detectable level of alcohol in their bloodstream. A VC 23136 first-time violation triggers a one-year license suspension from the DMV and may increase insurance costs. Potential penalties may increase if you are on probation or refuse to take a chemical test.
If you are facing any charges relating to underage DUI, contact the San Diego DUI Attorney for professional legal defense.
The Legal Definition of Underage DUI
Motorists under 21 years old are prohibited from driving when their blood alcohol concentration (BAC) reaches or exceeds 0.01%, according to the Zero Tolerance Law, or California VC 23136. The Department of Motor Vehicles (DMV) has the authority to suspend the driving licenses of underage people who violate this rule. DUI laws related to this statute are:
- VC 23140 – The state penalizes underage drivers who drive with a BAC of 0.05% or higher through enhanced penalties.
- VC 23152(a) – It becomes illegal to operate a vehicle under alcohol influence, regardless of blood alcohol content levels.
- VC 23152(b) – Establishes per se DUI as a violation when someone drives with a BAC at or above 0.08%.
- VC 23153 – This statute punishes the offense of DUI with bodily injury to another person.
- Penal Code 191.5(a) PC – It punishes gross vehicular manslaughter when someone drives under the influence of alcohol as a felony offense.
- PC 191.5(b) – Also known as the Watson murder rule, the offense results in the death of someone due to impaired driving. The offense triggers DUI second-degree murder charges.
Elements Under California’s Zero Tolerance Law VC 23136
For someone to violate California’s Zero Tolerance Law under VC 23136, three key elements must exist. These are:
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Driving a Vehicle
The law becomes applicable only when someone operates a vehicle during the time of their offense. The statute applies specifically to driving, but other DUI-related laws could apply in certain situations, such as being in actual physical control of a vehicle.
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Under 21 Years Old
The Zero Tolerance Law enforces restrictions against all drivers who have not reached their 21st birthday. California implements rigorous driving regulations for alcohol consumption among minors because it wants to prevent all forms of alcohol use before vehicle operation.
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BAC of 0.01% or Greater
The key requirement of VC 23136 states that your BAC must reach 0.01% or above before being considered guilty. This legislation imposes penalties for any detectable alcohol level in your bloodstream despite the absence of required BAC levels or signs of impairment, which standard DUI cases need.
How BAC is Measured Per VC 23136
Breath and blood tests determine the BAC levels in cases of underage DUI. All drivers under 21 in California must consent to testing, so refusing these tests will trigger severe penalties.
A preliminary alcohol screening (PAS) test is what law enforcement officers will subject you to when they suspect you are driving under the influence as an underage driver. The PAS device is a portable breathalyzer tool police officers use to measure alcohol levels at the roadside. Unlike chemical tests that serve in DUI investigations, the PAS test functions as a screening tool. A 0.01% or higher BAC reading through the device will lead to a license suspension under VC 23136.
Chemical tests give more accurate BAC readings than the tests performed using PAS devices. The alcohol content in your breath can be measured through breath tests, but blood tests directly analyze alcohol in your bloodstream.
Underage DUI and Implied Consent
All drivers under 21 must obey PAS testing requirements when law enforcement demands such tests. A one-year driver’s license suspension automatically applies if you refuse to take a PAS test, even if you are not under the influence.
Facing Charges for VC 23136 and Another DUI Offense
A zero-tolerance DUI charge does not mean it is the only offense you should handle. The specific circumstances of your case may result in additional DUI charges under California laws. Multiple DUI violations explained above can be prosecuted under the legal system whenever evidence supports multiple charges.
For example, additional DUI charges under VC 23140 or 23152 are added when your BAC exceeds 0.05% or 0.08% or when drug or alcohol impairment is present. The prosecution can file VC 23140 charges against you when your BAC exceeds 0.05% because this offense has more severe consequences.
A BAC measurement of 0.08% or higher will result in VC 23152 charges, while signs of impairment can lead to the same adult DUI charges under VC 23152. The additional charges VC 23153 (DUI causing injury) and PC 191.5 (vehicular manslaughter while intoxicated) can be filed against you when serious situations lead to accidents, injuries, or death. When convicted of a severe DUI offense, the court can dismiss or combine the less serious charge into the more severe one.
Under VC 23136, the California DMV can suspend your license even if you escape a DUI conviction in criminal court because this law operates through separate administrative processes.
Penalties for Violating California’s Zero Tolerance Law
A VC 23136 violation is not a criminal offense but can lead to administrative penalties affecting your driving privileges.
Administrative Penalties
A driver under 21 with a BAC of 0.01% or higher will face a one-year driver’s license suspension by the California Department of Motor Vehicles (DMV). This action is independent of any court proceedings.
If an underage driver’s BAC reaches 0.05% or higher, they may be charged under VC 23140, which is an infraction, not a misdemeanor. Penalties include a one-year license suspension, fines up to $100, and mandatory attendance in a DUI education program.
A BAC of 0.08% or higher subjects the underage driver to standard DUI laws under VC 23152, applicable to both adults and minors. Penalties include fines, mandatory DUI education programs, and possible jail time.
If an accident causes injuries or fatalities, you could face more severe DUI-related charges, including felony DUI or vehicular manslaughter under PC 191.5(a) or (b).
DUI Penalties Based on Prior Offenses
A California first-time DUI offense attracts severe penalties for all drivers under 21 years of age. Following a guilty verdict, the court will impose:
- Probation for 3 to 5 years
- A fine of $390 to $1,000
- Attendance at a DUI education program that lasts 3 to 9 months
- Driving privileges through a restricted license may become available, but the DMV keeps your license suspended for at least 6 months
Your situation worsens when you receive a second DUI conviction. The penalties for a second DUI include:
- Potential jail time of up to one year combined
- Fines
- 18 to 30 months of DUI education
- The suspension of your driving privileges will last for two full years after a DUI conviction.
The consequences of a third DUI offense exceed those of the previous convictions. A convicted individual would serve jail time from 120 days up to one year and need to finish a 30-month DUI program while losing their license for three years.
Any fourth DUI offense and subsequent offenses will be charged as felony crimes. The state prison sentence for this offense must be a minimum of 16 months combined with a four-year license revocation and a permanent criminal record.
The right to vote and firearm ownership become restricted when you are under parole supervision. Your insurance rates will increase, you will encounter challenges in employment, and your driving privileges will be permanently limited.
Hidden Costs of a DUI or Zero Tolerance Violation
A zero-tolerance violation has long-term financial and legal consequences beyond initial penalties. The expenses associated with these violations can accumulate for years, creating significant financial burdens.
Immediate Costs After a DUI Arrest
- Towing and Impound Fees – Your vehicle may be towed and impounded, with fees exceeding $100 per service. If left in storage for multiple days, impound costs can escalate quickly.
- DUI Education Program – Court-mandated DUI classes start at $600, but costs vary based on the program’s length.
- Court Fees and Fines – A DUI conviction requires paying multiple court-imposed fines, including a $500 victim restitution fund contribution.
Long-Term Financial Consequences
- Increased Insurance Premiums – A DUI conviction significantly raises car insurance rates, often by thousands of dollars annually. Insurers classify DUI offenders as high-risk drivers, making affordable policies difficult to obtain.
- License Reinstatement Fees – You must pay a $125 reinstatement fee to regain your driving privileges after suspension.
- Ignition Interlock Device (IID) Costs – If ordered by the court, an IID installation costs approximately $100, with ongoing monitoring fees of $2.50 or more per day.
How to Fight a DMV License Suspension Under VC 23136
Requesting a DMV Hearing
A violation of VC 23136 triggers an immediate suspension of your driving privileges. However, you can challenge this action through a DMV Administrative Per Se (APS) hearing. You must request the hearing within 10 days of receiving your citation—failure to do so will result in an automatic suspension with no opportunity for defense.
At the APS hearing, the DMV evaluates three key issues:
- Were You Operating the Vehicle? The hearing officer must determine whether you were in control of the vehicle when law enforcement stopped you. If the officer cannot prove this, the suspension may be invalid.
- Was the Traffic Stop Legal? The police must have had reasonable suspicion to stop your vehicle. If they lacked legal justification, any evidence collected—such as breath test results—may be inadmissible, which could lead to the suspension being overturned.
- Did You Have a BAC of 0.01% or Higher? Under California’s Zero Tolerance Law, any detectable alcohol in your system can justify a suspension. However, you may challenge the results by arguing equipment malfunctions, improper testing procedures, or contamination.
Winning a DMV hearing is difficult since the burden of proof is lower than in a criminal case. To maximize your chances of keeping your license, you should build a strong defense, such as challenging the stop’s validity and the breath test’s accuracy. Working with an experienced DUI attorney can significantly improve your odds of success.
Possible Hearing Outcomes
The DMV hearing is your only opportunity to fight the suspension of your license. Unlike a criminal court proceeding, where a judge or jury makes the final decision, a DMV hearing officer serves as both prosecutor and judge, reviewing the evidence before ruling.
Winning the Hearing
If you win the hearing, the DMV will cancel the suspension, and you will retain your driving privileges. Success depends on demonstrating that:
- The traffic stop was unlawful
- The breathalyzer results were inaccurate or improperly obtained
- Law enforcement failed to follow proper procedures
- There is reasonable doubt about the validity of your BAC reading
Losing the Hearing
If you lose the hearing, your license will be revoked for one year under VC 23136. However, you may be eligible for a restricted hardship license if you meet specific DMV requirements.
A DMV hearing loss does not mean you are guilty of a crime—it is an administrative penalty, not a criminal conviction. However, the consequences can still be severe, impacting your daily life and your ability to work or travel.
Restricted Hardship License After an Underage DUI
Underage drivers may qualify for a restricted hardship license after meeting strict eligibility requirements and completing a formal application process. This limited license allows necessary driving privileges during the suspension period under VC 23136.
To be eligible for a restricted hardship license, you must:
- Not have refused a Preliminary Alcohol Screening (PAS) test or chemical test at the time of your arrest
- Provide proof of essential driving needs, such as:
- Attending school
- Traveling to and from work to support yourself or your family
- Caring for a sick family member
- Demonstrate that alternative transportation is not a viable option (this license is granted out of necessity, not convenience)
You must wait 30 days after your suspension period ends before applying. The DMV requires:
- A completed Hardship License Application Form
- Proof of school or work obligations, such as enrollment verification or an employer’s statement
- A written justification explaining why public transportation is inadequate
A restricted license issued to you will enable driving only for activities mentioned in your application. Driving for any reason outside your approved purposes under the restricted license will lead to license revocation and further consequences.
The DMV demands strict requirements when reviewing hardship license applications, so you must create a detailed application that demonstrates your case effectively. A DUI attorney can help you obtain approval for your restricted license, allowing you to maintain some independence during your license suspension period.
Driver’s License Reinstatement After an Underage DUI
A zero-tolerance violation under VC 23136 does not automatically restore your driving privileges after the suspension period ends. To reinstate your license, you must comply with strict DMV requirements. Failing to meet these conditions can result in further delays or an extended suspension.
Steps to Reinstate Your License
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Pay the DMV Reissue Fee
- The California DMV requires a $100 reissue fee as the first step in the reinstatement process.
- This fee must be paid before the DMV will review your suspension status.
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Obtain and File an SR-22 Form
- An SR-22 certificate from your auto insurance provider serves as proof of financial responsibility.
- The SR-22 filing requirement lasts for three consecutive years.
- Missing payments or failing to renew your policy can trigger another suspension.
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Maintain Continuous Insurance Coverage
- Any lapse in coverage—such as failing to inform your provider when switching policies—may result in additional penalties.
- You may need non-owner SR-22 insurance to fulfill DMV requirements if you do not own a vehicle.
Defenses Against a VC 23136 Charge
Lack of Probable Cause for the Stop
The police need valid reasons based on traffic law or criminal activity to stop drivers on the road. A lack of probable cause, such as weaving in and out of lanes or speeding, or running a stop sign, would force the entire case to be dismissed by the court.
The Fourth Amendment declares improper or baseless traffic stops can make all collected evidence ineligible for court admission. Your lawyer can ask to exclude BAC test results, field sobriety tests, and officer observations when the officer did not have proper cause to stop you. The absence of such evidence would make it impossible for the prosecution to proceed with their case.
Subjective observations of intoxication, such as bloodshot eyes or an alcoholic smell, cannot automatically establish grounds for stopping a driver. A lack of valid reason for pulling you over is essential to defend against the VC 23136 charge.
Field Sobriety Test Inaccuracy
Field sobriety tests (FSTs), which police officers conduct to evaluate driver impairment, yield unreliable and subjective results. Various elements not involving alcohol consumption can lead to testing failures, such as nervousness, fatigue, uneven road surfaces, poor lighting, uncomfortable footwear, and a natural lack of coordination.
Standardized field sobriety tests, including walk-and-turn, one-leg stand, and horizontal gaze nystagmus, help officers evaluate balance control and coordination and follow instructions. The standardized tests show poor results from sober individuals during stressful traffic stops.
Your attorney can question the reliability of the FST when an officer uses it as evidence for zero-tolerance violations. The prosecution needs to demonstrate that your poor performance resulted from alcohol intoxication rather than nervousness, medical conditions, or environmental factors. A challenge to the validity of your charge becomes possible when the officer either fails to administer the test properly or makes exaggerated observations.
Erratic Driving Was Not Due to Alcohol
Police officers routinely mistake driver behaviors that deviate from normal driving patterns as signs of intoxication, though various other factors can lead to similar driving behaviors. The combination of fatigue, distractions, and medical conditions leads drivers to perform sudden lane changes and delayed braking and experience problems with steady speed control.
Driving late at night after completing a long work shift would be the situation. Your reaction time possibly decreased, leading to a brief movement inside your lane. The assumption of an officer who believes you are under the influence would prove incorrect when no actual alcohol consumption evidence exists. Medical conditions, including low blood sugar and migraines, together with neurological disorders, can produce signs that resemble impairment.
Your attorney can fight the officer’s conclusion through medical records and dashcam evidence or expert testimony showing that your driving behavior was free from alcohol influence. The zero-tolerance charge may be dismissed when there is no proven impairment.
Unreliable BAC Test Results
The results from Breathalyzer and chemical tests serve as definitive proof in DUI cases, even though they frequently prove inaccurate. Several factors can negatively impact the reliability of Breathalyzer tests because of faulty calibration, improper administration, and natural physiological processes that affect BAC readings.
Correct breathalyzer readings depend on regular equipment calibration and maintenance procedures. A device that was not adequately serviced at the time of testing might have generated incorrect elevated reading results. The BAC results obtained through testing become unreliable if officers fail to adhere strictly to established test protocols.
The defense of rising BAC remains a crucial component in DUI cases. The absorption process of alcohol into your bloodstream requires time, so your BAC level was under 0.01% during driving but increased before you got tested. The presentation of evidence by your attorney regarding this defense could potentially lead to the dismissal of your charge.
No Proof That the Accused Was Driving
A prosecution under VC 23136 requires establishing clear evidence showing that you operated a vehicle during the crime. Police officers frequently reach crime scenes, which include stopped cars, accident locations, or DUI checkpoints, without observing you driving. A lack of testimony about your driving status makes it harder for the prosecution to maintain their case.
Circumstantial evidence, such as a warm engine or an empty driver’s seat, may fail to meet the court’s standards when officers use them as proof. Your attorney can present evidence that shows another person drove the vehicle or establishes that you were just a passenger who did not operate the vehicle. The lack of evidence that proves your actual involvement in driving can make it difficult for prosecutors to establish a VC 23136 violation, which could result in your case being dismissed.
Find a San Diego DUI Attorney Near Me
Per California’s Zero Tolerance Law, having any blood alcohol concentration (BAC) above 0.01% will result in immediate license suspension, higher insurance premiums, and other consequences that will affect you for several years. Prior offenses or injuries during a DUI incident can lead to felony charges, which result in both prison terms and permanent criminal records.
Seeking professional legal help right away is recommended for anyone who faces a VC 23136 charge. At San Diego DUI Attorney, our experienced legal team understands California DUI laws and effective defense strategies for zero-tolerance law violations. Contact us at 619-535-7150 to speak to an attorney who can review your situation.
