VC 23136: California’s Zero Tolerance Law for Underage Drivers

Vehicle Code 23136 establishes California’s zero tolerance policy for drivers under 21 years old. While adults can legally drive with a blood alcohol concentration below 0.08%, underage drivers face consequences for any measurable alcohol in their system. A BAC of just 0.01% violates this statute, meaning even a small amount of alcohol can trigger serious consequences for young drivers.

Text of Vehicle Code 23136

California Vehicle Code Section 23136(a) provides:

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.

The statute specifically notes that it operates separately from the standard DUI laws, creating an additional layer of prohibition for underage drivers.

Understanding the Zero Tolerance Standard

The 0.01% BAC threshold is extraordinarily low. To put this in perspective:

A single alcoholic beverage can easily produce a BAC above 0.01% in most people. Residual alcohol from mouthwash or certain medications might register on a preliminary screening device. Even the natural fermentation of some foods could theoretically produce trace readings.

California’s policy reflects the reality that underage individuals cannot legally purchase or consume alcohol in most circumstances. The law aims to deter underage drinking entirely by ensuring any amount of alcohol while driving carries consequences.

Elements of a VC 23136 Violation

To establish a VC 23136 violation, the following must be proven:

Element 1 – The Driver Was Under 21 Years Old

The driver’s age at the time of driving must be under 21. This is typically established through driver’s license records or other identification.

Element 2 – The Driver Had a BAC of 0.01% or Greater

A preliminary alcohol screening (PAS) device or other chemical test must show a BAC at or above 0.01%. Unlike standard DUI, prosecutors do not need to prove impairment. The BAC level alone establishes the violation.

Element 3 – The Driver Was Operating a Motor Vehicle

The individual must have been driving a vehicle at the time of the stop. Standard evidence of driving applies.

How VC 23136 Violations Are Detected

Traffic Stops

Officers who stop underage drivers for any traffic violation and detect signs of alcohol consumption may request a preliminary alcohol screening test. Signs that trigger further investigation include odor of alcohol, bloodshot eyes, slurred speech, and admission of drinking.

DUI Checkpoints

At sobriety checkpoints, officers may request PAS tests from drivers who appear to have consumed alcohol. Underage drivers are subject to the zero tolerance standard at these checkpoints.

Accidents

Following any traffic accident, investigating officers may test involved drivers. Underage drivers found with any measurable alcohol face VC 23136 consequences in addition to any accident-related citations.

Penalties for VC 23136 Violations

VC 23136 is classified as a civil offense rather than a criminal charge, but the consequences remain significant for young drivers.

License Suspension

• First Violation: 1-year suspension. No restricted license available for under-21 drivers.
• Second Violation: 2-year revocation (or until age 21, whichever is longer).
• Third Violation: 3-year revocation with extended period (or until age 21, whichever is longer).

No Criminal Record

A VC 23136 violation alone does not create a criminal record because it is a civil infraction handled administratively by the DMV. However, if the underage driver’s BAC reaches 0.05% or higher, additional charges under VC 23140 apply. If BAC reaches 0.08% or the driver shows impairment, standard DUI charges under VC 23152 may also be filed.

DMV Administrative Process

The DMV handles VC 23136 violations through an administrative per se (APS) process. Upon receiving notice of a violation, the DMV will automatically suspend the driver’s license unless the driver requests a hearing within 10 days.

At the APS hearing, the DMV hearing officer considers whether the officer had reasonable cause to believe the person was driving under 21 with alcohol in their system, the person was lawfully detained, and the PAS or chemical test showed a BAC of 0.01% or greater.

Refusing the Preliminary Alcohol Screening Test

Underage drivers do not have the same implied consent protections as adult drivers regarding the preliminary alcohol screening device. Under VC 23136(c), if a person under 21 refuses to submit to a PAS test or other chemical test at the scene, the DMV will suspend their license for one year, or revoke it for two or three years if they have prior alcohol-related offenses.

This is more severe than the consequences for simply testing at 0.01% or above, creating a strong incentive for compliance.

Relationship to Other DUI Laws

VC 23136 operates alongside other DUI statutes, and underage drivers may face multiple charges depending on circumstances:

VC 23140 – Underage DUI at 0.05% BAC

If an underage driver’s BAC reaches 0.05% or higher, they also violate VC 23140, which is an infraction carrying additional penalties including mandatory alcohol education.

VC 23152 – Standard DUI

If an underage driver shows actual impairment or reaches 0.08% BAC, they face the same criminal DUI charges as adult drivers under VC 23152. This results in criminal court proceedings, potential jail time, and a criminal record.

Charging Hierarchy

An underage driver with a 0.10% BAC would technically violate VC 23136 (0.01%+ threshold), VC 23140 (0.05%+ threshold), and VC 23152(b) (0.08%+ threshold). Prosecutors typically charge the most serious applicable offense, though DMV consequences for all violated statutes may apply.

Defenses to VC 23136 Violations

Several defense strategies may apply at DMV hearings challenging VC 23136 suspensions:

Challenging the PAS Device Accuracy

Preliminary alcohol screening devices are less accurate than evidential breath testing equipment. Defense arguments may focus on device calibration issues, operator error, environmental factors affecting readings, and inherent accuracy limitations at very low BAC levels.

Challenging Reasonable Cause

The officer must have had reasonable cause to believe the driver had consumed alcohol before requesting the PAS test. Without reasonable cause, the test request may have been improper.

Rising Blood Alcohol

Even at low levels, the rising blood alcohol defense may apply if alcohol was consumed shortly before driving and had not yet fully absorbed.

Mouth Alcohol

At the 0.01% threshold, even small amounts of residual mouth alcohol from recent use of mouthwash, breath spray, or certain medications could produce a positive reading that does not reflect actual blood alcohol levels.

Age Verification Issues

If there is any question about whether the driver was actually under 21 at the time, this element can be challenged.

Long-Term Consequences

While VC 23136 does not create a criminal record, the consequences extend beyond license suspension:

Insurance rates typically increase dramatically when insurers learn of the violation. College applications, scholarship applications, and employment applications may ask about license suspensions. Professional licensing in some fields may be affected. A pattern of alcohol-related violations can influence how courts and prosecutors treat future incidents.

Related Statutes

• VC 23140 – Underage DUI with BAC of 0.05% or higher
• VC 23152 – Standard DUI laws applying to all drivers
• VC 23224 – Possession of alcohol in vehicle by person under 21
• BP 25662 – Minor in possession of alcohol

Contact a California DUI Defense Attorney

Even though VC 23136 is not a criminal charge, the license suspension can significantly impact a young person’s education, employment, and daily life. An attorney can represent you at the DMV hearing and work to protect your driving privileges.

KN Law Firm handles DMV hearings and underage DUI matters throughout Los Angeles County. Contact us at (888) 950-0011 for a free consultation to discuss your situation.