DUI Under 21: The Statute Most Prosecutors Ignore

In Oklahoma, if you get a DUI when you’re under the age of 21, you can be charged with either “DUI under 21” or a regular DUI depending on the prosecutor and a number of other factors.

First, let’s explore the difference between “DUI under 21” and a regular DUI.

“DUI Under 21” Statute

Technically, Driving Under the Influence (DUI) has a completely different statute and sentencing requirements if the driver is under the age of 21. Because a DUI under 21 involves both the crime of drinking underage and drunk driving, you would think that the punishment would be more severe, but the opposite is true. A normal DUI in Oklahoma carries up to 1 year in jail. However, a DUI for people under the age of 21 carries a fine between $100 and $1,000, at least 20 hours of community service, and attendance and completion of a treatment program. This means that a “DUI under 21” has the same punishment as many traffic tickets.

For this reason, many prosecutors choose to charge drunk driver’s with a general DUI, regardless of their age.

Like us, you may be wondering-why does DUI under 21 even exist? That is a great question, one that doesn’t have a clear answer. The existence of the statute leads to an imbalance in punishment from one individual to the next, as well as confusion for people who are getting charged with a crime that doesn’t quite fit their set of circumstances.

What is the legal limit for a “DUI under 21?”

Any amount of alcohol or drugs is enough to be considered a DUI for someone under the age of 21. This means that if you are 20 years old and they can detect any alcohol in your breath (via a breathalyzer) or blood, you can be found guilty of a DUI. Similarly, any amount of controlled drugs are sufficient for a DUI regardless of age.

What is the legal limit for DUI-marijuana under 21?

In Oklahoma you can obtain a medical marijuana at the age of 18. However, if you drive with any marijuana in your system, you are committing a DUI. The law is very confusing on this topic, because marijuana can stay in your system long after the intoxicating effects have worn off. The DUI under 21 status doesn’t contemplate the legal use of marijuana, and therefore the legal presence of it in a person’s system, so it assumes that if it can measure any amount you are guilty of a DUI. This mirrors the general DUI statute.

How do they prove you are intoxicated?

A breath or blood test is often a tool utilized to prove intoxication, but it is not required in order to prove you are under the influence. If an officer can smell the alcohol on you, and will testify to this in court, they can use that evidence to prove you were under the influence. Since any amount of alcohol is an illegal amount for someone under 21, this kind of testimony can have an outsized impact in “DUI under 21” cases. Conversely, with a regular DUI, the smell of alcohol doesn’t carry as much weight, because the mere consumption of alcohol isn’t illegal.

Do I have to take the breathalyzer test?

Just like with everyone else, you have a constitutional right that allows you to refuse a breathalyzer. If an officer asks you to take standardized field sobriety tests or to take the “state’s test” (breathalyzer or blood test) you can refuse. However, it is important to note that your refusal can be discussed at trial and can harm your case. Since any amount is an illegal amount, this refusal paired with the smell of alcohol or other outside factors can be particularly harmful.

I was arrested for driving under the influence, and I’m under 21, what will my charge be?

You will most likely be charged for a general DUI rather than a “DUI under 21.” Lower sentencing standards means that prosecutors prefer to avoid the “DUI under 21” statute.

The State can do this because prosecutors have discretion about what you get charged with. The State can charge you with anything they want as long as they can prove the underlying allegations.

The Bottom Line

While a DUI under 21 technically only carries a fine, most District Attorney’s offices are charging it as a regular DUI because it provides a larger range of punishment. The existence of a DUI under 21 statute and lack of an age range on a general DUI leads to a lot of confusion and an imbalanced justice system.