CHILD ENDANGERMENT & DUI IN CALIFORNIA
Arrested for Child Endangerment?
If during the commission of a DUI, a minor is in your vehicle, the prosecutor will usually tact on an additional charge of child endangerment, which can be a misdemeanor or felony. Instead of the additional charge, the prosecutor can instead add an enhancement to your DUI charge if the child was under 14. Either way, you face mandatory jailtime if convicted as charged.
More often than not Child Endangerment is attached to a DUI charge as an enhancement allegation (if the child was under 14 years old). When this happens, a first offense will result in a minimum of 48 hours in county jail; a second offense within 10 years will up the jail minimum to 10 days; a third offense within 10 years will up the jail minimum to 30 days; a fourth offense within 10 years will up the jail minimum to 90 days.
PENALTIES FOR COURT CONVICTION OF DUI WITH CHILD ENDANGERMENT ( VEHICLE CODE 23572 VC )
Child Endangerment & DUI Penalties
Penalties for DUI with child endangerment in California:
- First DUI with a child in the car: The penalty includes an enhancement of 48 hours in jail in addition to any other sentence received for the DUI conviction.
- Second DUI with a child in the car: The penalty includes an enhancement of 10 days in jail in addition to any other sentence received for the DUI conviction.
- Third DUI with a child in the car: The penalty includes an enhancement of 30 days in jail in addition to any other sentence received for the DUI conviction.
- Fourth DUI with a child in the car (felony or misdemeanor): The penalty includes an enhancement of 90 days in jail in addition to any other sentence received for the DUI conviction.
Additional enhancements may apply if there are other aggravating factors associated with the DUI, such as:
- Speeding 20 or 30 mph over the limit or reckless driving: An additional 60 days in jail.
- BAC of 0.15% or higher: The sentence enhancement depends on your BAC level and other facts and circumstances.
- Refusal to submit to blood alcohol testing: Additional jail time and license suspension, varying depending on whether it’s the first, second, third, or fourth DUI.
- DUI with injury: Additional penalties, including license suspension, habitual traffic offender status, and potential state prison time if the person suffered any type of injury or great bodily injury.
Child endangerment is a separate offense and can be charged as either a misdemeanor or a felony. If convicted of child endangerment as a misdemeanor, you face up to one year in county jail. If charged and convicted as a felony, then you face 2, 4, or 6 years in state prison.
Please note that these penalties are subject to change and can vary depending on the specific circumstances of each case.
PENALTIES FOR COURT CONVICTION OF DRIVING UNDER THE INFLUENCE ( VEHICLE CODE §23152 )
Minimum and maximum sentences with probation (3-5 years):
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), up to 6 months in jail, and attendance in a 3, 6, or 9 month alcohol program. As a result of the court conviction, the DMV will suspend your license for 6 or 10 months, depending on the alcohol program ordered, but a restricted license may be requested. Additionally, you will receive 2 points on your driving record.
Second Offense within 10 years
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 4 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will suspend your license for 2 years, but a restricted license may be requested with IID for 1 year. Additionally, you will receive 2 points on your driving record.
Third Offense within 10 years
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 120 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 3 years, but a restricted license may be requested with IID for 2 years. Additionally, you will receive 2 points on your driving record.
Fourth Offense within 10 years
A fine of $390 to $1000 with penalty assessment (multiplied by approximately 3-4 times), a minimum of 180 days and up to 1 year in county jail, attendance in a 18 month alcohol program, and installation of an interlocking device for up to 3 years. As a result of the court conviction, the DMV will revoke your license for 4 years, but a restricted license may be requested with IID for 3 years. Additionally, you will receive 2 points on your driving record.
Type of Penalties
In California, if you are convicted of a Child Endangerment & DUI, you may face the following penalties:
A DUI conviction often involves hefty fines, made up of a base fine plus a 4-5x penalty multiplier.
A DUI is at least a misdemeanor punishable by jail time, which increases with the amount of priors and/or injury caused.
Just being arrested for a DUI will trigger automatic consequences on your ability to drive. Actions taken by the court and DMV can be overlapping and difficult to navigate.
A conviction for DUI will require attendance in a minimum 3-month alcohol program. You may also need to attend such a program to maintain your ability to drive.
Ignition Interlock Device
The IID device will randomly require a alcohol-less breath sample for the car to start and continue runing. It is often required after a DUI conviction and/or an adverse ruling at the DMV Hearing.
This can be ordered/bargained as part of the sentence, or as an alternative to paying fines. Generally it consists of lighter work than Community Labor, but more hours.
Also known as Work Release, this is often required for a DUI with accident, and can sometimes be an alternative to jail (8 hrs. = 1 day jail). An example is picking up trash on the freeway. It consists of harder work than community service, but fewer hours.
An ankle bracelet is often negotiated as a subsitute to jail where the defendant has medical issues or might lose employment due to a long sentence. The wearer is allowed to go to work, but must return home by a certain hour. The device can also detect alcohol.
If convicted of a first DUI, the mandatory period of probation is 3 years. Repeat offenders may face up to 5 years of probation. This probation is informal (ie. no probation officer) unless the DUI is a felony.
CHILD ENDANGERMENT & DUI ELEMENTS OF THE OFFENSE
Don’t Assume You Have to Plead Guilty
If you drive under the influence with a child under the age of 14 in the vehicle, you will face increased penalties.
The elements of the offense under DUI with child endangerment in California ( Vehicle Code 23572 VC ) are:
- You were driving under the influence of alcohol or drugs.
- There was a child under the age of 14 in the vehicle at the time of the offense.
It’s important to note that the child’s actual safety or your actual pattern of driving are not factors in determining guilt under this code. The only factors are whether you were driving under the influence and whether there was a child in the car.
DUI AND CHILD ENDANGERMENT DEFENSES
Effective Defenses against DUI & Child Endangerment Charges
1. Passenger Was Not a Child
It would be crucial to provide evidence of the passenger’s age at the time of the incident. This could include birth certificates, identification cards, or testimony from individuals who can verify the passenger’s age.
2. No Driving Defense
If there’s no evidence you were operating the vehicle near the time of the arrest, we challenge the fundamental premise of your DUI charge.
3. Illegal Arrest or Stop
We can contest the legality (probable cause) of your DUI stop or arrest, which could lead to dismissal if your rights were violated.
4. Rising Blood Alcohol Level
Alcohol absorption rates vary based on race, sex, time/amount of consumption..etc We argue that your BAC may have risen between the time of driving and the time of testing.
5. Mouth Alcohol
We highlight factors like belching or acid reflux, which can skew breathalyzer results by releasing alcohol from the stomach into the mouth during breath testing.
6. Biased Field Sobriety Tests
We examine the administration of field tests for bias or error that could compromise their validity.
7. Faulty Breathalyzer Calibration
We scrutinize the maintenance and calibration records of the breathalyzer used, disputing results from improperly calibrated devices.
8. No Miranda Warning
Miranda must be given if there is post-arrest interrogation. We pinpoint the time of the actual arrest/cuffing and try to exclude statements made thereafter absent Miranda.
9. Blood Fermentation
If blood vials lack sufficient preservatives, the blood can ferment, leading to higher BAC readings.
10. Challenging Breath Test Results
When a person is still absorbing alcohol, the breath machine will ALWAYS read to high. It is up to your lawyer to show the discrepancy between reality and the reading.
11. Necessity or Duress
In rare cases, the defense might argue that the defendant had to drive under the influence to prevent a greater harm, such as escaping from a dangerous situation for the child.
12. Mistaken Identity or False Accusation
The defense can argue that the defendant was not the person driving the vehicle or that the charges are based on a false accusation.
13. Medical Conditions
Certain medical conditions, such as diabetes, hypoglycemia, auto-brewery syndrome, or gerds (acid reflux), can produce falsely high BAC readings.
14. DUI Checkpoint
A DUI checkpoint must be properly set up and maintained, otherwise the stop itself lacks probable cause.
15. Forced Blood Draw
Fedral law requires a warrent for a blood draw unless there is consent. Lacking consent / warrent means the blood result can be excluded.
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Freaqent Asked Questions
I just picked up a DUI and I blew over the legal limit. I’m guilty, so what’s the point of hiring a lawyer?
First of all, being over the legal limit is just the starting point, and all DUI cases that are won involve people who are at or above the legal limit (or they refused). If you were under the legal limit, you wouldn’t even have been cited. Second, just because you feel you are guilty, it doesn’t mean you need to have the full brunt of the consequences crash down on you. With proper representation, things like jail time, license suspension, fines, probation, alcohol school…etc. can be reduced or eliminated, guilty or not.
If I hire a lawyer, is it possible that I will never need to appear in court?
Yes. If you are facing a misdemeanor DUI and nothing else, a lawyer can appear on your behalf without you throughout the entire proceeding. At the DMV, if your testimony is required, you can testify telephonically. If there are any forms you need to sign for court, your lawyer can mail these to you and have you sign in front of a notary. All paperwork that you need can be mailed to you by your lawyer.
I received a letter or voice message from law enforcement asking me to contact them regarding an incident. What should I do？
You should absolutely NOT contact law enforcement yourself. Most of the time this kind of letter is sent when there is not enough evidence yet to charge you, and they are hoping you will help them out by incriminating yourself. Always contact a lawyer first, and if necessary, speak only through counsel.
I was arrested for DUI. Do I need SR-22?
SR-22 is just another term for “Proof of Insurance.” Your insurance company needs to file it for you for 3 years only upon conviction of a DUI.
CALIFORNIA DUI & CHILD ENDAANGERMENT ATTORNEY JEFF YEH
Call THE DUI SPECIALIST
If you’ve been charged with driving under the influence, it’s crucial that you reach out to a DUI specialist right away. As a dedicated DUI lawyer, I have personally handled thousands of drunk driving cases, leveraging my expertise to defend my clients effectively. I know the prosecutors and Judges and how they conduct their business in the various courts throughout California. Schedule your free consultation today by filling out the contact form below or by calling me directly at (213) 446 – 2495.