Call Now 323-464-6700 for a Free Consultation

Underage Drinking and Driving Laws in California

When you have been charged with Underage Drinking and Driving in the Los Angeles area, one of the most important things you can do is to protect your rights and increase your understanding of the legal terms involved by hiring an attorney with experience in this crucial area of California law. The Law Office of Jonathan Franklin DUI Attorney wants you to understand what the laws are, how the laws work, how you can plan for a defense that preserves all of your rights under the law, and how you can move quickly to obtain a qualified attorney who is experienced with the issues surrounding underage drinking and driving.

In California, it is illegal for any minor – defined as under the age of 21 where alcohol is involved -- to possess alcohol in a public place. This is known as a Minor in Possession (MIP) violation. While technically known as California Business and Professions code 25662, you – as an underage person, or the parent of an underage person – are responsible for obeying the law. It is also against the law for an underage motorist to drive a vehicle after consuming alcohol. The legal limit for blood alcohol for persons under 21 years of age is much lower than for those who are 21 and above.

A blood alcohol content of .01 percent will result in a violation of the law known as “underage consumption while driving,” as California has a zero-tolerance policy for underage drinking (California Vehicle Code 23136.) While underage consumption is not technically a crime, a violation of the code can result in a fine of as much as $250 and the underage driver could lose the privilege to drive for a year, possibly more.

A more serious charge of DUI – driving under the influence – is possible if an underage person’s blood alcohol content reaches .05% or higher (California Vehicle Code 23140), as compared with the blood alcohol content of .08% for adults over the age of 21. The penalties for this offense include a fine ranging between $100 and $300, a suspension of the drivers license for one year, and the required completion of a program of alcohol education.

One other charge related to those who are underage with alcohol in a motor vehicle extends from California’s open container law (California Vehicle Code 23224.) A minor cannot possess an open container of alcohol while in a motor vehicle. This offense carries a maximum fine of $1000, suspension of the driving license, and the impounding of the vehicle used to transport the minor and the alcohol.

How Underage Drinking and Driving Can Be Prosecuted

Like any other charge of drinking and driving, a prosecutor will have to prove several things in the case of underage drinking and driving: that the accused person actually was driving the vehicle, that they had an unlawful level of blood alcohol at the time of the suspicion and/or arrest, and that their participation in actions of both drinking and driving were willful – in other words, that they had knowledge of imbibing or ingesting alcohol in sufficient quantity to become intoxicated.

(For more discussion on this point, see the Defense of Underage Drinking and Driving Violations section below.)

There are several penalties and consequences that underage drivers who consume alcohol should be aware of:

  • You may be required to spend time in jail, up to 48 hours
  • You may be placed on probation, up to 3 years
  • You can be assessed points on your driving record
  • You can have your good driver status removed for 10 years
  • You will be required to install an Ignition Interlock Device (IID) on vehicles that you own or drive (currently enforced in Los Angeles County, Tulare County, Sacramento County, and Alameda County.) This provision will take effect across California in 2019.
  • You will be required to take a five-week DUI class, and may also be required to attend two DUI impact sessions (in locations such as a hospital emergency room or a morgue)
  • If anyone is killed or inured due to an accident as a result of your intoxication, you could be charged with a felony count of drunk driving
  • You could lose your job
  • Your automobile insurance rates will almost certainly be raised, or your insurance policy may be cancelled completely
  • You could suffer a serious injury to yourself and to any other riding with you
  • The vehicle that you were driving while drinking could be totaled and become unavailable for future use

There is an additional consideration in the case of an underage person who does register a blood alcohol content of .08% or greater. This can result in the same penalties as an adult who is over the age of 21 would face, which would include fines that could total thousands of dollars, the reimbursement of court fees, time in jail up to six months, a DUI course lasting from three months to 9 months, the suspension of the license to drive, and possible multiple years of probation.

Should your arrest for underage drinking and driving include actions such as swerving and/or dangerous driving, the court can consider this as grounds for a charge of DUI, as well. The penalties are the same as the charge of having a blood alcohol content of .08% or higher. While you may be charged with multiple violations of California drinking and driving statutes, your court record will only show one guilty verdict if you are convicted.

These multiple charges simply provide more pathways to a conviction for the California prosecutors.

Many people mistakenly assume that because a person is “underage” and gets caught with alcohol while driving, they will somehow get off with just a warning. The real situation is that the opposite is true; California takes the issue of underage drinking and driving very seriously and is committed to enforcing the laws and the penalties described above.

Potential Defenses for Underage Drinking and Driving Violations

One very important fact to be aware of when considering how to respond to a charge of underage drinking and driving is the right that any California driver has to challenge the suspension of their driver’s license.

This is not an automatic occurrence and must be requested within 10 days of being cited for a driving offense. The California Department of Motor Vehicles (DMV) can conduct a license suspension hearing, usually by means of telephone, unless the driver involved requests that the hearing be held in person.

The accused driver has the right to have an attorney present for the hearing; in actuality, an attorney can handle the entire appeal on behalf of an accused driver. If a driver wins a DMV hearing, that driver’s license suspension is cancelled.

What if a driver requests a DMV hearing but does not win? There are still other legal steps that can be taken before going to court. An underage driver can also request a “critical use” license – which is a form of restricted license – and be allowed to drive under specified conditions (for example, driving to/from work or school.)

Note: this appeal is not available if the underage driver refused to submit to, or had a license suspended due to the results of, a chemical blood alcohol test.

Finally, an underage driver may get his or her license reinstated after the suspension time period has been met by paying a reissue fee of $125 to the California DMV; by filing what is known as an SR-22 proof of financial responsibility form; and, by maintaining financial responsibility proof for an additional three years. The SR-22 is offered by private insurance companies, who must submit and file the SR-22 with the California Department of Motor Vehicles on your behalf.

If your underage drinking and driving case does go to court, there are a number of other defense approaches that your attorney might consider.

If a breath test was used to determine your blood alcohol content, your attorney might recommend a “breath test error” defense. This is a common defense in California courts, as breath test are prone to instrument malfunction, mishandling of the breath test by law enforcement officers, environmental factors that can contribute to the inaccuracy of the test, and your physiological condition at the time of the test (depending on what you ate, for example.)

A similar defense is known as a “mouth alcohol” return on a breath test. Several other factors – other than the amount of alcohol in your lung tissue, which is the standard used to judge a breath test – can influence the reading on a breath test. These can include alcohol-soaked food particles trapped in your dental work (teeth), air that has been regurgitated during the test (a burp), use of mouthwash or breath spray (which may contain alcohol), use of chewing tobacco, or the fact that you may suffer from acid reflux (heartburn) or a condition known as GERD (see next note).

GERD is the acronym for a condition known as Gastroesophageal Reflux Disease, which has been shown to create possible mouth alcohol situations. The stomach produces a flow of acid that travels into the mouth, effectively masking the measure of the deep lung air the breath test is designed to calibrate.

A diet-related mouth alcohol condition is known as ketosis. This condition results when a person has been on a low-carbohydrate diet, which causes the body to burn fat cells that, in turn, produce substances known as ketones. These naturally-produced substances are turned into a type of alcohol known as isopropyl – which are natural and perfectly legal – but which can also be mistaken by a breath test for ethyl alcohol, which is the type that is consumed and leads to unlawful blood alcohol levels.

Similarly, if you happen to suffer from diabetes, ketosis can be a natural by-product that can fool a breath test.

There are other possible defenses for an underage drinking and driving charge, which could include something simple (though still dangerous) like driving while distracted with a cell phone, eating while driving, trying to turn off or on the radio or other music in the car, or trying to pick up something that fell into the floorboard of the car. These are known as “bad driving” defenses, since you may have been stopped because these behaviors mimic those exhibited by a diver who is under the influence of alcohol.

Another possibility, if you happened to have been apprehended through a sobriety checkpoint, is the fact that California sobriety check points must adhere to a strict set of legal requirements. If, for example, the check point was not publicly advertised you have the right to challenge any arrest that resulted from that road block. This, along with any other improper conduct by law enforcement officers, can lead to a motion to suppress evidence based under the California Penal Code 1538.5.

Of course, even in the case of underage drinking and driving, California law enforcement officers are always required to read you your Miranda rights as part of any arrest procedure. Should this basic protocol be missed, you have a legitimate reason for your case to be dismissed.

One additional defense that often arises with underage drinking and driving is the fact that an underage person may not have been aware that a drink they were given – at a party, for example – contained alcohol. This means that the person stopped for underage drinking and driving became intoxicated without his or her knowledge. This could form the basis for a defense in this case.

Hiring A DUI Attorney Near Me

If you have any additional questions or concerns about a charge or an arrest involving underage drinking and driving in the Los Angeles area, you should not hesitate to call for an experienced attorney. Jonathan Franklin DUI Attorney is eager to assist you in your case, and to help you understand both your responsibilities and rights if you have been accused of underage drinking and driving. Attorney Franklin can be reached by calling 323-464-6700.

Board of Governors,

America's Top-Ranked Law School For Trial Advocacy

Stetson University DUI Program

Contact Information

Jonathan Franklin DUI Attorney
6777 Hollywood Blvd Ste 508
Los Angeles, CA 90028