Can I Be Arrested for DUI If I’m Under 21 Years Old?
Much depends on your age and blood alcohol level.
An arrest is a possible outcome if you are between the ages of 18 and 20 and your blood alcohol level at the time of driving was .08 or higher.
If your blood alcohol level was .07 or lower, then, technically, you cannot be arrested for the offense of driving under the influence, regardless of your age. Instead, you will be issued a citation for an infraction (under Vehicle Code §23136), which is a violation of the law that is not punishable by imprisonment.[i] Still, there are consequences for committing the infraction of driving under the influence while under the age of 21.
.01 to .04 BAC – An Infraction
People under the age of 21 are forbidden from driving with any alcohol in their system.[ii] To put that in context, adult drivers — so long as they do not exhibit impaired driving[iii] — are not considered legally intoxicated until their blood alcohol level reaches .08,[iv] which, according to the DMV, usually occurs after 2 or 3 drinks.[v]
It is a safe bet that a driver younger than 21 will be in violation if she consumes 1 drink or less.
Once detained, a young driver’s license will be confiscated[vi] and she will be issued a temporary license that lasts for 30 days.[vii] Once the temporary license expires, the young driver’s privilege to drive will be suspended for 1 year[viii] and she cannot drive at all. A skilled criminal defense attorney can help a driver attempt to obtain a restricted driver’s license that will allow her to drive for the limited purpose(s) of attending work and/or school.[ix]
If the young driver does not yet have a license, then the DMV will issue an order stating that, once the driver successfully applies for a driver’s license, the Department will delay issuance of her license for 1 year.[x]
.05 to .07 BAC – Still an Infraction, but May Be Harder to Get Your License Back
If a driver is 17 years of age or younger and drove with a blood alcohol level between .05 to .07, then the violation is still an infraction (this time, under Vehicle Code §23140) and the consequences are the same as described above: a 1-year driver’s license suspension.[xi] However, the higher blood alcohol level brings an additional penalty: a $100 fine.[xii]
If a driver is between the ages of 18 and 20 and drove with a blood alcohol level between .05 to .07, then, in addition to the 1-year license suspension and $100 fine, the driver must also complete a 3-month DUI class[xiii] as well as submit proof that she has car insurance before the DMV will reinstate her privilege to drive.[xiv]
.08 BAC or Higher – Can Be Charged as a Misdemeanor
If a driver is 17 years of age or younger and drove with a blood alcohol level of .08 or higher, then she can be cited for an infraction or arrested for a misdemeanor — the decision is up to the arresting officer and the prosecutor.
Factors the authorities will consider include:
- An erratic or weaving driving pattern,
- Whether the driver admitted to drinking,
- The presence of open alcohol container(s) in the vehicle,
- The driver’s performance during field sobriety tests,
- The driver’s objective signs of intoxication (such as slurred speech, alcohol on the breath, and an unsteady gait), and
- Whether the driver has a clean driving and/or criminal record
The more egregious the young driver’s conduct, the more likely it is that she will be charged with misdemeanor DUI. If she is charged with misdemeanor DUI, then her matter will proceed in juvenile court rather than adult criminal court.
If a driver is between the ages of 18 and 20 and drove with a blood alcohol level of .08 or higher, she can also be cited for an infraction or arrested for a misdemeanor — all at the authorities’ discretion. The consequences for DUI are a bit harsher as a misdemeanor than as an infraction:
- There may be jail time. Unlike a DUI infraction, which is punishable only by a fine, you will be sentenced to jail for at least four days if convicted of a DUI misdemeanor.[xv] (If you are granted probation, you may be sentenced to jail for at least two days.)[xvi]
- The fine is much higher than $100. You will have to pay fines and penalty assessments that, when combined, can climb to several thousand dollars.[xvii]
The 1-year license suspension[xviii] and 3-month DUI program[xix] will still be imposed if a driver between the ages of 18 and 20 is convicted of misdemeanor DUI.
With the help of a skilled criminal defense attorney, a driver between the ages of 18 and 20 may be able to reduce a DUI charge from a misdemeanor to an infraction.[xx]
Refusal Is Futile
Technically, a young driver violates Vehicle Code §23136 when she drives with a blood alcohol level of .01 or higher as measured by a preliminary alcohol screening test or chemical test.[xxi] It’s not slurred speech or an erratic driving pattern that cause a violation, but a specific reading on an alcohol-detecting instrument.
If police suspect that a young driver may have consumed alcohol before driving, they are required by law to measure the young driver’s blood alcohol level.[xxii] Police do so by using use a handheld device known as a preliminary alcohol screening (or “PAS”) device, which can measure the alcohol content in a driver based on a sample of her breath.[xxiii]
Unlike adult drivers, who are free to refuse the PAS test without punishment,[xxiv] a driver who is under 21 cannot refuse a police officer’s request to submit to a PAS test,[xxv] and officers will inform the young driver that refusal will result in a 1-year suspension of her driver’s license.[xxvi]
The result then, is this:
Once detained, a young driver’s license will be confiscated[vi] and she will be issued a temporary license that lasts for 30 days.[vii] Once the temporary license expires, the young driver’s privilege to drive will be suspended for 1 year[viii] and she cannot drive at all. A skilled criminal defense attorney can help a driver attempt to obtain a restricted driver’s license that will allow her to drive for the limited purpose(s) of attending work and/or school.[ix]
If the young driver does not yet have a license, then the DMV will issue an order stating that, once the driver successfully applies for a driver’s license, the Department will delay issuance of her license for 1 year.[x]
.05 to .07 BAC – Still an Infraction, but May Be Harder to Get Your License Back
If a driver is 17 years of age or younger and drove with a blood alcohol level between .05 to .07, then the violation is still an infraction (this time, under Vehicle Code §23140) and the consequences are the same as described above: a 1-year driver’s license suspension.[xi] However, the higher blood alcohol level brings an additional penalty: a $100 fine.[xii]
If a driver is between the ages of 18 and 20 and drove with a blood alcohol level between .05 to .07, then, in addition to the 1-year license suspension and $100 fine, the driver must also complete a 3-month DUI class[xiii] as well as submit proof that she has car insurance before the DMV will reinstate her privilege to drive.[xiv]
.08 BAC or Higher – Can Be Charged as a Misdemeanor
If a driver is 17 years of age or younger and drove with a blood alcohol level of .08 or higher, then she can be cited for an infraction or arrested for a misdemeanor — the decision is up to the arresting officer and the prosecutor.
Factors the authorities will consider include:
- An erratic or weaving driving pattern,
- Whether the driver admitted to drinking,
- The presence of open alcohol container(s) in the vehicle,
- The driver’s performance during field sobriety tests,
- The driver’s objective signs of intoxication (such as slurred speech, alcohol on the breath, and an unsteady gait), and
- Whether the driver has a clean driving and/or criminal record
The more egregious the young driver’s conduct, the more likely it is that she will be charged with misdemeanor DUI. If she is charged with misdemeanor DUI, then her matter will proceed in juvenile court rather than adult criminal court.
If a driver is between the ages of 18 and 20 and drove with a blood alcohol level of .08 or higher, she can also be cited for an infraction or arrested for a misdemeanor — all at the authorities’ discretion. The consequences for DUI are a bit harsher as a misdemeanor than as an infraction:
- There may be jail time. Unlike a DUI infraction, which is punishable only by a fine, you will be sentenced to jail for at least four days if convicted of a DUI misdemeanor.[xv] (If you are granted probation, you may be sentenced to jail for at least two days.)[xvi]
- The fine is much higher than $100. You will have to pay fines and penalty assessments that, when combined, can climb to several thousand dollars.[xvii]
The 1-year license suspension[xviii] and 3-month DUI program[xix] will still be imposed if a driver between the ages of 18 and 20 is convicted of misdemeanor DUI.
With the help of a skilled criminal defense attorney, a driver between the ages of 18 and 20 may be able to reduce a DUI charge from a misdemeanor to an infraction.[xx]
Refusal Is Futile
Technically, a young driver violates Vehicle Code §23136 when she drives with a blood alcohol level of .01 or higher as measured by a preliminary alcohol screening test or chemical test.[xxi] It’s not slurred speech or an erratic driving pattern that cause a violation, but a specific reading on an alcohol-detecting instrument.
If police suspect that a young driver may have consumed alcohol before driving, they are required by law to measure the young driver’s blood alcohol level.[xxii] Police do so by using use a handheld device known as a preliminary alcohol screening (or “PAS”) device, which can measure the alcohol content in a driver based on a sample of her breath.[xxiii]
Unlike adult drivers, who are free to refuse the PAS test without punishment,[xxiv] a driver who is under 21 cannot refuse a police officer’s request to submit to a PAS test,[xxv] and officers will inform the young driver that refusal will result in a 1-year suspension of her driver’s license.[xxvi]
The result then, is this:
A driver who is 20 years of age or younger and who drove with a blood alcohol level between .01 and .07 will have her license suspended — regardless of whether or not she submits to a PAS test.[xxvii]
A young driver can challenge the imposition of the license suspension by requesting a DMV hearing within 10 days of her arrest; [xxviii] however, the likelihood that the challenge will succeed is low given the modest threshold needed to sustain the order to suspend the license. [xxix]
Conclusion
Young drivers may not feel the effect of 1 drink, but they should be aware that even a single drink puts them at risk of a 1-year driver’s license suspension. And if a young driver’s blood alcohol level reaches .08 or more, the young driver should know that she is susceptible to being arrested for misdemeanor DUI, even if she is under the of 18.
[i] Penal Code §19.6.
[ii] Vehicle Code §23136(a). Thus, it is a crime for a person under 21 to drive while having a blood alcohol level of .01 or more.
[iii] Vehicle Code §23152(a), CALCRIM 2110.
[iv] Vehicle Code §23152(b), CALCRIM 2111. Note: If an adult driver is driving a commercial vehicle, then his blood alcohol level need only be .04 to be considered legally intoxicated. See Vehicle Code §23152(d).
[v] https://www.dmv.ca.gov/portal/dmv/detail/pubs/hdbk/actions_drink.
[vi] Vehicle Code §13388(b)(2).
[vii] Vehicle Code §13388(b)(2).
[viii] Vehicle Code §§13353.2(a)(2), 13353.3(b)(3). Technically, the young driver’s license is suspended for 4 months once police determine a blood alcohol level of .01 or more. See Vehicle Code §13353.3(b)(1). The DMV will then review the investigation based on information submitted by police and, if the DMV agrees with the police’s finding, the young driver’s period of suspension will be extended from 4 months to, at minimum, 1 year. See Vehicle Code §§13353.2(d), 13557(b)(3), 13353.3(b)(3).
[ix] A young driver may be eligible for a restricted license if public transportation options are inadequate and there is a critical need to drive (such as to attend school, or to work in order to support the family). Vehicle Code §§13353.8(a), (c); 12513(a).
[x] Vehicle Code §13557(b)(3).
[xi] Vehicle Code §§13353.2(a)(2); 13353.3(b)(3), 23136(a).
[xii] Vehicle Code §42001.25(a). Note that the fine increases each time a driver is convicted of driving with a blood alcohol level of .05 or higher while under the age of 21.
[xiii] Vehicle Code §§23502(a), 13352.6(a)(1). Technically, a driver who violates Vehicle Code §23140 (driver between ages of 18 and 20 with a blood alcohol level of .05 or higher) is required to complete, at minimum, the “education component” of the DUI program. See Vehicle Code §11352.6(a). However, the DMV is free to order the driver to complete all components of the DUI program, such as participating in Alcoholics Anonymous meetings and individual interviews. See for instance, https://ntsi.com/california/dui/3-month-first-time-offender-program/.
[xiv] Vehicle Code §13352.6(a).
[xv] Vehicle Code §23536.
[xvi] Vehicle Code §23538.
[xvii] Vehicle Code §23536(a); Penal Code §§1464, 1465.7, 1202.4(b)(1); Government Code §76000.
[xviii] Vehicle Code §§13352(a)(1); 13353.3(b)(3).
[xix] Vehicle Code §23538(b)(1).
[xx] That is, a violation of Vehicle Code §23136(a) or §23140(a).
[xxi] Vehicle Code §23136(a).
[xxii] Vehicle Code §13388(a).
[xxiii] Vehicle Code §13388(c).
[xxiv] Vehicle Code §23612(i).
[xxv] Vehicle Code §23136(c)(1).
[xxvi] Vehicle Code §23136(c)(3). See also Vehicle Code §13353.1(a)(1). Note: If the young driver has previously been convicted of a DUI-related offense in the last 10 years, then her license may be revoked — rather than merely suspended — for up to 3 years. Vehicle Code §§13353.1(a)(2), (3).
[xxvii] Vehicle Code §§13353.1(a)(1), 13353.2(a)(2); 13353.3(b)(3).
[xxviii] Vehicle Code §§13353.1(e); 13558(a), (b). Note: The driver, or an attorney on her behalf, must make the request within 10 days; if not, she will lose her right to have a hearing. Vehicle Code §14100(a).
[xxix] To sustain the order to suspend the young driver’s license, all that the DMV hearing officer must find is that the young driver: (1) was lawfully detained (for instance, due to a speeding violation or a broken taillight); (2) was actually driving; (3) was warned of the consequences of refusal; and (4) despite the warning, still chose to refuse to submit to the PAS test. Vehicle Code §§13558(c)(1), 13557(b)(1).
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
