A person under 21 who is stopped for driving under the influence can be charged with a standard DWI/DUI (under code section 18.2-266), just as any other person can. There is no minimum age limit for a charge under 18.2-266. However, the officer also has the option of charging the underage driver under code section 18.2-266.1, often referred to a “baby DUI” which makes it “unlawful” for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol and having a blood alcohol concentration ("BAC") of 0.02 percent or more. A .02 BAC is essentially one beer for the average person. A violation of this section is a Class 1 misdemeanor. Punishment includes (i) a 12 month loss of license and (ii) a mandatory minimum fine of $500 or performance of a mandatory minimum of 50 hours of community service, (iii) up to 12 months in jail, (iv) completion of the ASAP program.
People often make the mistake of thinking that because a person is underage they must be charged with a baby DUI as opposed to a standard DUI/DWI. This is simply not correct. If a person is a .08 BAC or above, the officer will almost always charge the person with a regular DUI regardless of their age. However, if the BAC is below a .08 and the driver does reasonably well on the field sobriety tests, the officer make charge the person with a baby DUI under 18.2-266.1.
What is important to note that a charge under 18.2-266.1 is still a Class 1 criminal misdemeanor and carries essentially the same consequences as a regular DUI/DWI.
If you or your child has been charged with a violation of 18.2-266.1, drinking after illegally consuming alcohol, feel free to call our office and schedule a consultation to discuss the matter.