In this post you are going to learn about the additional penalties associated with having a child in your car when you are arrested for DUI.
You’ll also find out if you will be charged with child endangerment.
Overview
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.
DUI Enhancement
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 endangerment ((Penal Code §273a)). 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 intoxication1.
For purposes of enhancing your sentence for a DUI conviction, a child passenger is one who is under the age of 14.
Enhanced Penalties
If convicted of DUI with a child as a 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 enhancements 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
Additional Enhancements
There are also other aggravating factors associated with DUI that can lead to an enhanced penalty2.
Any Additional aggravating factors will increase the penalties concurrently.
These include:
Speeding 20 or 30 mph + Reckless Driving
An additional 60-days in jail and as a condition of probation for the DUI enhancement.
BAC of 0.15% or higher
If sentence enhanced, it depends on your BAC level and other facts and circumstances.
Refusal to submit to blood alcohol testing
- 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.
DUI with Injury
| Penalty | Misdemeanor | Felony |
|---|---|---|
| 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 |
How Does A Prosecutor Prove The Charge
The prosecutor must prove both that: (1) you were driving while you were intoxicated3 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.
Are You Charged with Both DUI and Child Endangerment?
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 a child in the 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.
Can You Be Convicted Of DUI Without A Child In A The Car And Child Endangerment?
It is possible 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 penalties4.
Is Child Endangerment A Felony?
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.
What Are The Penalties For Child Endangerment?
As indicated, you can only be convicted of child endangerment and DUI if the DUI is not one with a child as a 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.
Important DUI Information
- 4 Ways A DUI Can Become A Felony
- California Child Endangerment Laws
- How To Receive A Restricted License After A DUI Arrest
- How To Expunge A DUI Conviction
Next Steps If You Need Help
If you have been arrested and would like to learn more about how much DUI attorneys cost.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-334-6855 for a free confidential consultation.
Footnotes
- 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. [↩]
