Driving under the influence is a serious misdemeanor and can be a felony under certain aggravating circumstances. The penalties are severe and reflect the substantial risks that an intoxicated driver or one under the influence of drugs can pose to himself or others on the roadway.
In certain circumstances, a court will increase the penalties for a DUI if the driver exhibited certain aggravating behavior. One of these includes driving while under the influence of alcohol or drugs with a child passenger.
This can constitute child endangerment1. Merely being under the influence while having a child as a passenger in your vehicle can constitute sufficient evidence of your intent to harm your child, regardless of your driving conduct or level of intoxication2.
For purposes of enhancing your sentence for a DUI conviction, a child passenger is one who is under the age of 14.
If convicted of DUI with child as passenger, then you are subject to the enhancement provisions of CVC § 23572. These are mandatory sentences and are to be served in addition to any other sentence received for the DUI conviction. The enhancement are as follows:
- First DUI–enhancement of 48-hours in jail
- Second DUI–enhancement of 10-days in jail
- Third DUI–enhancement of 30-days in jail
- Fourth DUI (felony or misdemeanor)–enhancement of 90-days in jail
Mandatory Minimum Days In Jail
- + Child Enhancement
There are also other aggravating factors associated with DUI that can lead to an enhanced penalty3. Any Additional aggravating factors will increase the penalties concurrently. These include:
An additional 60-days in jail and as a condition of probation for the DUI enhancement.
If sentence enhanced, it depends on your BAC level and other facts and circumstances.
- First DUI–an additional 48-hours in jail and 1-year license suspension.
- Second DUI–an additional 96-hours and a 2-year license suspension.
- Third DUI–an additional 10-days in jail and a 3-year license suspension.
- Fourth DUI–an additional 18-days in jail and a 3-year license suspension.
|License Suspension||1-3 Years||5 Years|
|Habitual Traffic Offender Status||No||Yes|
|Strike Under 3 Strikes law||No||Yes|
|Person Suffered Any Type If Injury||Additional 1 year||Additional 1 year|
|Person Suffered Great Bodily Injury||N/A||Additional 3-6 years state prison|
|Aditional Jail or Prison||5 days to 1 year||1,2,3 or 4 years State Prison|
The prosecutor must prove both that: (1) you were driving while you were intoxicated4 and that (2) you had a minor under the age of 14 in the car while you were driving.
Additional Factors the Prosecutor will Consider
- Whether you intended to harm the child or children.
- Your Blood Alcohol Concentration or BAC when you were tested.
- Your driving patterns prior to the police officer stopping your vehicle.
The sentencing enhancement can only be applied if you have been convicted of violating vehicle code 23152 VC driving under the influence. Hiring a skilled DUI Defense Attorney could help with a potential dismissal of the case or a plea bargain to a lesser charge such as a wet reckless or exhibition of speed depending on the facts of your case.
In cases where you are arrested for DUI and your passenger was a child under the age of 14, the prosecution can charge you with any of the following:
- Child endangerment
- DUI sentencing enhancement under VC § 23572
- Or, both child endangerment and DUI with child in car
However, you cannot be convicted of both child endangerment and DUI with child in car. In such cases, the court cannot impose the enhanced penalties found under CVC § 23572. However, you may face harsh penalties for the child endangerment conviction.
It is possible, though, to be convicted of DUI without a child in car and of child
It is possible, though, to be convicted of DUI without a child in car and of child endangerment. This would not enhance your DUI sentence and you could be given a concurrent sentence for both convictions, which does not add to your sentence. Also, if your defense attorney plea bargains your charge to a “wet reckless,” then you will not face enhancement penalties5.
Child endangerment is a wobbler offense, meaning that prosecutors can elect to charge you with it as either a misdemeanor or as a felony. For this offense, the child need only be under the age of 18.
As indicated, you can only be convicted of child endangerment and DUI if the DUI is not one with a child as passenger. If convicted of child endangerment as a misdemeanor, you face up to one year in county jail.
A misdemeanor charge for this offense means that there was no risk of great bodily harm or death to the child. This would entail relatively innocuous driving conduct such as failure to make a complete stop at a stop sign, slight weaving within your lane of traffic, an equipment violation, or travelling just a few miles over the posted speed limit. Also, your BAC was not at a high level.
If charged and convicted as a felony, then you face 2, 4, or 6 years in state prison.
- Los Angeles DUI Attorney explains the DMV hearing and DUI involving Drugs
- DUI Attorney Guide To Vehicle Code 23109 VC | Exhibition of Speed In California
- California Laws Regarding Driving with a Suspended License
- Los Angeles Attorney Explains the Crime of Hit and Run Vehicle Code 20001 vc
- California Laws Regarding Vehicle Code 13205 involving Out of State Drivers.
- CDC Impaired Driving Facts
- Special DUI/Child Endangerment Statutes from NHTSA
The state of California has implemented tough drunk driving laws, and some DUI offenders may be sentenced with both DUI and child endangerment if they have a child passenger who is under the age of 14 in the car with them when they are arrested. In many cases like these, a skilled DUI attorney may be able to get the DUI charge against the driver reduced to a lesser offense so that the sentencing enhancement does not apply.
At the Aizman Law Firm, our attorneys can help you if you are facing a sentencing enhancement in a DUI case. If you need to speak to an attorney about your case, please call our office at: (818) 351-9555.
Request A Free Consultation 818-351-9555
- Penal Code §273a [↩]
- Vehicle Code § 23572 [↩]
- California Vehicle Code § 23582 [↩]
- California Vehicle Code 23152(a) – It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” [↩]
- California Vehicle Code 23103.5 – A conviction under this code section will not subject an offender to Vehicle Code 23572, child DUI enhancement. [↩]