Still Driving Your Lemon? What California Law Says
A warranty problem that keeps coming back does not always take the car off the road. Many owners still need the vehicle for work, school and family while a repair history builds or a lemon law claim moves forward. A common question follows: is it a problem to keep driving it?
California’s lemon law, the Song-Beverly Consumer Warranty Act, does not contain a rule that tells a buyer to stop driving a vehicle once a claim starts. It does contain several rules that make mileage and time matter: how the use offset is measured, the 18-month / 18,000-mile presumption window, the length of the express warranty and the filing deadline. This post walks through those rules as written in Civil Code § 1793.2, § 1793.22 and Code of Civil Procedure § 871.21. It is general information, not a recommendation about whether any particular car is safe to drive.
The statute has no “stop driving” rule
Section 1793.2(d)(2) sets out what happens when the manufacturer or its representative in California “is unable to service or repair a new motor vehicle… to conform to the applicable express warranties after a reasonable number of attempts.” The manufacturer must “either promptly replace the new motor vehicle… or promptly make restitution to the buyer,” and the buyer “shall be free to elect restitution in lieu of replacement” (§ 1793.2(d)(2)).
Nothing in that paragraph, or in the Tanner Consumer Protection Act in § 1793.22, conditions those remedies on the buyer parking the car. The statute is written around repair opportunities, nonconformities and remedies, not around how much the buyer uses the vehicle after the problem appears. A “nonconformity” for these sections is one that “substantially impairs the use, value, or safety of the new motor vehicle to the buyer or lessee” (§ 1793.22(e)(1)). A car can have a nonconformity like that and still be driven some of the time.
That does not mean mileage is irrelevant. It matters in the specific ways below.
How later miles relate to the use offset
When a manufacturer replaces a vehicle or makes restitution under § 1793.2(d)(2), it can reduce the amount by a charge for the buyer’s use. The statute ties that charge to a fixed point in time: use “prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity” (§ 1793.2(d)(2)(C)).
The formula uses “the number of miles traveled by the new motor vehicle prior to” that first delivery for repair (§ 1793.2(d)(2)(C)). As the Civil Code is written, then, the offset is measured at the first repair visit for the problem, not at the odometer reading on the day the vehicle goes back to the manufacturer. Miles driven after that first visit are not part of the § 1793.2(d)(2)(C) formula.
That is why the first repair order for the problem, and the mileage printed on it, is one of the most important documents in a lemon law file. We explain the offset math with worked numbers in how the lemon law mileage offset works and on our mileage offset page, so this post does not repeat it.
For claims against manufacturers that have opted into California’s newer lemon law procedures, CCP § 871.27 adds rules about third-party add-ons, negative equity and lease amounts in the restitution calculation. It does not add a separate charge for miles driven after the first repair visit.
Mileage and the 18-month / 18,000-mile presumption
Section 1793.22(b) creates a rebuttable presumption that a reasonable number of repair attempts has been made if certain repair events happen “within 18 months from delivery to the buyer or 18,000 miles on the odometer of the vehicle, whichever occurs first.” The repair events are:
| Path | What the statute requires |
|---|---|
| Serious safety nonconformity | The same nonconformity is likely to cause death or serious bodily injury if the vehicle is driven, it has been “subject to repair two or more times” by the manufacturer or its agents, and the buyer has at least once directly notified the manufacturer (§ 1793.22(b)(1)) |
| Other same nonconformity | The same nonconformity has been “subject to repair four or more times” by the manufacturer or its agents, and the buyer has at least once directly notified the manufacturer (§ 1793.22(b)(2)) |
| Out of service | The vehicle is “out of service by reason of repair of nonconformities” for a cumulative total of more than 30 calendar days since delivery (§ 1793.22(b)(3)) |
The direct-notice step applies only if the manufacturer clearly and conspicuously disclosed it with the warranty or owner’s manual (§ 1793.22(b)).
Because the window closes at 18,000 miles if that comes before 18 months, heavy driving can close the presumption window sooner. The presumption is only one way to show a reasonable number of attempts; it is not the only route to a claim under § 1793.2(d)(2). Our posts on reasonable repair attempts and the 30-day out-of-service presumption cover those rules in more depth.
Mileage and the express warranty
The lemon law remedies in § 1793.2(d)(2) are tied to “the applicable express warranties.” Many new-vehicle warranties end at a stated time or mileage, whichever comes first. Driving changes when a mileage limit is reached. The Civil Code does not set those limits; the manufacturer’s written warranty does. Keep a copy of the warranty booklet and check the mileage limits that apply to each part of the car. See our post on repairs after warranty coverage ends for how expiration interacts with problems that started while the warranty was in force.
When the car is unsafe or cannot be driven
The first presumption path in § 1793.22(b)(1) is for a nonconformity that “results in a condition that is likely to cause death or serious bodily injury if the vehicle is driven.” The statute itself recognizes that some defects make driving dangerous. If a warning light, a brake or steering symptom, a stall or another safety-related problem appears, the manufacturer’s instructions and a qualified technician are the right sources on whether the car should be driven. This article cannot answer that for any vehicle.
When a car cannot reasonably be brought in, § 1793.2(c) speaks to that situation. The buyer normally delivers nonconforming goods to the manufacturer’s service and repair facility in California, unless “nature of the nonconformity” or similar reasons mean “delivery cannot reasonably be accomplished.” In that case the buyer notifies the manufacturer or its nearest California service and repair facility, and “written notice of nonconformity to the manufacturer or its service and repair facility shall constitute return of the goods.” The manufacturer then chooses to repair at the buyer’s residence, pick up the vehicle, or arrange transport, and “all reasonable costs of transporting the goods” in that situation “shall be at the manufacturer’s expense” (§ 1793.2(c)).
Section 1793.2(d)(2)(A) and (B) also list “reasonable repair, towing, and rental car costs actually incurred by the buyer” among the incidental damages that can be part of a replacement or restitution under § 1794. Keep receipts for any tow or rental tied to the problem.
Practical habits while you keep driving
None of these are statutory requirements. They are general habits that help preserve the record if the problem continues:
- Report every recurrence. Each visit for the same problem creates a repair order with dates and mileage. A problem that is not presented to the dealer cannot be counted as a repair opportunity.
- Keep every repair order. Check the mileage in and out, the dates and how the concern was written. Our evidence and documentation guide lists what to look for.
- Write down symptoms when they happen. Dates, odometer readings, conditions and photos or video taken safely help connect later repair visits to the same nonconformity.
- Keep up with scheduled maintenance and keep those records too.
- Avoid aftermarket changes to the system that is having trouble, so the record stays about the original problem.
- Ask before selling or trading in. A claim generally involves the vehicle itself. Our post on trading in a car during a lemon law claim explains why that step deserves a conversation first.
Driving does not stop the filing clock
Continuing to use the car does not pause any deadline. Under the Song-Beverly track, warranty claims generally have a four-year limitation period (Commercial Code § 2725).
If the manufacturer has opted into California’s newer lemon law procedures (Code Civ. Proc. § 871.20 and following), a different deadline applies: generally within one year after the express warranty expires, and no later than six years after the vehicle was first delivered, with some time added for repairs and dispute programs (§ 871.21). This is general information, not advice about any vehicle; an attorney should confirm which deadline applies.
The extra time under § 871.21(c) covers dispute-program tolling under Civil Code § 1793.22(c), time the vehicle is out of service by reason of repair for any nonconformity, and up to 60 days after a pre-suit notice under § 871.24. Because the § 871.21(a) deadline runs from the end of the express warranty, and many warranties end at a mileage limit, high mileage can bring that deadline closer.
Frequently asked questions
Will the manufacturer charge me for every mile I drive until the buyback?
Not under the formula in § 1793.2(d)(2)(C) as written. The use offset counts miles traveled before the buyer first delivered the vehicle for correction of the problem that gave rise to the nonconformity. Miles after that first repair visit are not part of that formula.
Does driving a lot hurt a California lemon law claim?
Mileage matters in specific ways: the § 1793.22(b) presumption window closes at 18,000 miles if that comes before 18 months, the express warranty may have a mileage limit, and the § 871.21 deadline for opted-in manufacturers runs from when the express warranty expires. The statute does not say that driving the car defeats a claim.
Do I have to keep driving the car to keep my claim?
No. Section 1793.2(d)(2) does not require any particular use. If the vehicle cannot reasonably be delivered for repair because of the nature of the problem, § 1793.2(c) lets written notice of nonconformity stand in for delivery.
What if a safety problem makes me afraid to drive it?
The statute treats a nonconformity “likely to cause death or serious bodily injury if the vehicle is driven” as its own presumption path (§ 1793.22(b)(1)). Follow the manufacturer’s instructions and a qualified technician’s advice on whether the car is safe to use. Keep records of any tow or rental, which § 1793.2(d)(2) lists among incidental damages.
Can I sell the car while my claim is pending?
Talk to a lemon law attorney first. Replacement and restitution under § 1793.2(d)(2) involve the vehicle itself, so selling or trading it in can change what remedies are practical.
Talk to a California lemon law attorney
If the same warranty problem keeps returning and you are still driving the car, gather the sale or lease contract, the warranty booklet and every repair order, especially the first one for the problem. Lion Lemon handles California lemon law claims for buyers and lessees. Request a case review or call (424) 367-1454.
Attorney Advertising. Lion Lemon is a trade name of Lion Legal, P.C., a California law firm. This article provides general information about California law and is not legal advice for any person or vehicle. Prior results do not predict a similar outcome, and each case depends on its own facts.