Sometimes, a drunk driver will compound his or her problems by driving under the influence with children in the vehicle. This happens more than you think where families often partake in birthday parties, holidays, Halloween and other festive events. In California, a DUI driver can face a multitude of potentially serious legal issues, from a child endangerment sentencing enhancement to worse – misdemeanor or felony child endangerment charges – for drunk driving.
A DUI CAN RESULT IN FELONY CHILD ENDANGERMENT CHARGES IN CALIFORNIA AND UP TO SIX YEARS IN PRISON
In California, a drunk driver who, under circumstances that could lead to great bodily injury, willfully places a child under the age of 18 years old in a situation where his or her health can be injured can be charged with felony child endangerment for driving under the influence under Penal Code section 273a(a). The maximum penalty for felony child endangerment is six years. Yes, you read that correct, you could go to state prison for six years if you are DUI and have a child in your vehicle.
A misdemeanor is charged where a drunk driver, under circumstances that will not lead to great bodily injury, willfully places a child under the age of 18 years old in a situation where his or her health can be injured can be charged with misdemeanor. If sentenced to probation on a misdemeanor child endangerment charge, there is a mandatory 4 year probation period as well as a mandatory 52 week parenting program, along with a jail term up to one year.
That being said, child endangerment charges may not necessarily be filed in every DUI case where a child is a passenger. The prosecutor, the judge and the jury will weigh intent, recklessness, BAC levels, driving characteristics, age, etc. in determining whether child endangerment charges should be filed and whether they should be filed as a felony or misdemeanor.
ENHANCED PENALTIES FOR A CHILD IN A VEHICLE OF A PERSON DUI
California Vehicle Code section 23572 “enhances” or provides greater penalties for having a child under the age 14 in a vehicle at the time a person is driving under the influence. If a person is found to be DUI and they had a child under the age of 14, it is considered strict liability. It is irrelevant if you intended to hurt the child or put the child in harm’s way; it is irrelevant whether your BAC was .25% or .08%; it is irrelevant if you were weaving or stopped for an inoperable tail light – so long as you are DUI and there is a child of less than 14 years, then the enhancement will be found true. However, the prosecution cannot prove the “enhancement” under section 23572 unless you are found guilty of DUI.
In addition to your DUI penalties, section 23572 will impose an additional 2 days of jail on a first DUI, 10 days on a second DUI within 10 years, 30 days for a third DUI within 10 years, and 90 days on any subsequent DUI beyond the third charged as a misdemeanor.
Vehicle Code section 23572 differs from Penal Code section 273a in the sense that section 23572 is not a separate crime. If the child in the vehicle is under fourteen years old, you can be charged with both the separate crime under the Penal Code for child endangerment as well as the “enhancement” under section 23572. However, you cannot be penalized under 23572 if you are convicted of child endangerment under 273a.