In California, you can face severe consequences for committing DUI offenses. You can face penalties such as fines, license suspension, or even serve a jail term. Things can become more complicated if you are charged and convicted for DUI with a child in the vehicle. DUI with a child in a vehicle can be considered as child endangerment, which is a whole new situation that usually leads to mandatory jail time and other consequences to your sentence.
Since there is a possibility of facing severe consequences for DUI with a child in a vehicle, you should not face the charges alone. Hiring a DUI attorney can help you receive less severe consequences and possibly have your case dropped. For legal representation, contact the Jonathan Franklin DUI attorney, and let us help you fight your DUI with a child in a vehicle charge.
Vehicle Code 23572 – DUI with a Child in the Car
Vehicle Code 23572 is the statute that makes DUI with a child below the age of 14 a sentence enhancement of your DUI charges. This means that you will face additional charges besides the basic DUI penalties for your initial DUI charges. The kind of additional consequences that result from DUI with a child in a car depends on whether it is a first or a subsequent offense.
For a first offense, the mandatory sentence for DUI with a child in a car is 48 hours in county jail. The mandatory sentence is ten days for a second offense, while a third offense attracts 30 days in county jail. A fourth offense attracts 90 days in county jail.
Factors that a Prosecutor Must Prove in Your Vehicle Code 23572 Charges
A prosecutor must prove certain factors while charging you for DUI with a child in your vehicle. These include:
- You were driving
- Your Blood Alcohol Content (BAC) level was at or above 0.15 or 0.08 percent, depending on the underlying DUI charges.
- You were speeding and driving recklessly.
- You probably refused to submit to a blood alcohol testing.
- You caused injury to the minor.
Driving or Operating a Vehicle
In California, the prosecutor must prove that you were in actual control of a vehicle to prove that you were Drving under the Influence of alcohol. Therefore, the traffic officer probably flagged down your car at a DUI checkpoint and found you to be under the influence of alcohol. Therefore, if you were not driving, you cannot be prosecuted for DUI with a child in your vehicle.
You were Intoxicated or Under the influence of Alcohol
The prosecution has three options while proving that you were under the influence. They can verify this by showing that your blood alcohol concentration (BAC) was above 08.8% or 0.15%, were impaired by drugs, alcohol, or a combination of the two.
Although prosecution for DUI typically focuses exclusively on the driver’s BAC, an impairment prosecution usually requires the jury to focus on the driver’s behavior. Some of the signs include:
- Poor performance on field sobriety tests
- Erratic driving
- Slurred speech
- Unusual behavior
- Red or glazed
Generally, prosecutors prove that a suspect is impaired through the testimony of the arresting officer. The arresting officers usually explain their training on looking for intoxication signs and those observed in your case.
Additional Consequences and Enhancement
There are particular aggravating factors associated with DUI that can lead to a more severe penalty once you are arrested and charged for DUI with a child in a car. These includes:
- An additional 60 days in jail for driving above 20 or 30 mph of the allowed speed limit plus driving recklessly
- An addition of 48 hours in jail and one-year license suspension for your first DUI and refusal to submit to a BAC testing
- An addition of 96 hours in jail and two-year license suspension for a second DUI and refusal to submit to a BAC test
- An additional ten days in jail and license suspension for three years for a third DUI and a refusal to submit to a BAC test
- An addition of 18 days in jail and three years’ license suspension for DUI and failure to submit to a BAC test
Penalties for DUI with a Child in the Vehicle that Results in Injuries to the Minor
In case there were injuries sustained either by you or the minor onboard your vehicle, there are particular additional sentences that you can face. DUI with injuries is usually charged as a wobbler in California. This means that you can face misdemeanor or felony charges.
For misdemeanor charges, the consequences include 1-3 years of license suspension and an addition of one year in jail.
You can face felony charges if your minor passenger suffers significant bodily injury due to your DUI. The consequences for felony charges include five years of license suspension, an addition of 3-6 years.
Protective Custody for Your Children as a Consequences for Violating Vehicle Code 23572
In case you are arrested and have to go to jail, the court must decide what they should do with your child. If there is another parent available to take care of them, the court will call him or her and request him or her to pick up your child. If there is no other parent available, your kid might be placed in a foster home, shelter, or other short-term protective custody while you serve your sentence.
Penalties for a Minor’s Death Due to DUI Conviction with a Child in the Car
In the worst-case scenario, DUI with a minor in the car can involve you in a grisly road accident, and the child might die in the crash. Due to the aggravated nature of this kind of arrest, you can be potentially charged with the following:
- Voluntary manslaughter
- Involuntary manslaughter
- Second-degree murder
- Vehicular manslaughter while intoxication
- DUI murder
- Gross vehicular manslaughter while intoxicated
A conviction of any of the above-stated charges could result in significant jail times and fines, compared to what you have received for a simple DUI conviction.
Separate Child Endangerment Charges
Particular circumstances surrounding your DUI incident can prompt the prosecutor to prosecute you with child endangerment under Penal Code 273(a).
Please note, this is a separate crime that applies when children are in a situation where their health and welfare are in danger.
The prosecutor must prove the following to prove that you endangered a child:
- Inflicted, caused, or allowed mental suffering or physical pain
- Placed the minor in a that would have caused significant bodily injuries or death
Child endangerment is a wobbler, meaning that you can face misdemeanor or felony charges. If you face misdemeanor charges, the penalties include a maximum fine of $1,000, a minimum of four years of summary probation, and a maximum of six months in county jail.
On the other hand, a felony charge attracts a maximum fine of $10,000, a minimum of four years of formal probation, and a state prison sentence of 2, 4, or 6 years.
The court might also impose additional conditions like refraining from alcohol or drugs and subjecting to random drug testing.
Please note, the court cannot convict you of both DUI with a minor in the vehicle and child endangerment. This means that you cannot be convicted of child endangerment while being convicted with the additional sentencing enhancement under Vehicle Code 23572. However, it is possible to be sentenced with ordinary DUI and child endangerment without a sentence enhancement (Vehicle Code 23572 charges) for having a minor in the car.
For that reason, most prosecutors save child endangerment charges for severe cases and do not automatically file them when there is a minor passenger in connection to a DUI charge.
Legal Defenses for DUI with a Minor in the Car Charges
The purpose of hiring a DUI attorney after your arrest for DUI with a minor in the car charges is to help you fight your charges. This can be achieved by adopting relevant legal defenses that would have your case dropped or through a plea bargain to reduce your DUI charges. Below are several legal strategies that your attorney can use.
Challenging the Chemical Test Results
Your attorney can challenge the chemical test administered to you and prove that your BAC level was not above 0.08% or you were not intoxicated during your stoppage. While the attorney is challenging the chemical test, he or she must demonstrate that the results were unreliable due to some of the flaws in the testing procedure or inaccurate alcohol measurement during your actual driving time. This includes flaws such as:
- Violation of title 17 testing requirements
- Medical conditions like diabetes, Gastrointestinal reflux disease (GERD), or high protein carb diets
- Presence of residual mouth alcohol
- Rising blood alcohol level
Challenging the Officer’s Testimony Regarding Your Behavior
If your charges are based on actual impairment rather than the amount of alcohol in your system, the officer’s observation can be an essential part of the prosecutor’s case. Officer observations of impairment might include:
- Poor field sobriety test performance
- Bad driving
- The odor of alcohol in your breath
- Blurred speech
- Bloodshot eyes
Beating DUI charges by challenging the officer’s testimony regarding your behavior can be challenging. However, there are common factors that might prove that you were not impaired. For instance, the fact that you have bloodshot eyes can signify eye allergies or be tired. Additionally, your poor field sobriety test performance can be affected by factors like:
- Pre-existing health conditions like mental or physical disability, pregnancy, injury, or deafness
- Clothes like non-athletic shoes, baggy clothes, and tight clothes that make it difficult to walk with ease
- Poor weather conditions like snow, dust, wind, and rain
Failure to Conduct a Proper 15-Minute Observation Period
A DUI officer should conduct a fifteen-minute observation period before administering a DUI breath test. However, not all officers utilize this requirement and usually head straight into filing the paperwork and conducting a DUI test once they stop a suspicious driver. Proving that the officer failed to properly perform the observation raises suspicion on the breath results and the entire DUI investigation.
Violation of Your Miranda Rights
The United States constitution expects drivers to inform suspects that they are officially under arrest, which is different from a mere conversation when suspects are free to leave. If a person is placed under arrest, the police must immediately advise the suspect of their rights.
This includes the rights to remain silent, the right to an attorney, and the right to a court-appointed attorney if you cannot afford one. If the officer does not issue Miranda warnings, any evidence gathered after that, such as field sobriety test observation, biological evidence, and incriminating statement will be excluded.
Improper Training of the Breath Test Operator
The officer or operator administering the breath test should be appropriately certified and trained to have your test results admissible in court. Therefore, you expect the operator or officer to meet the following criteria:
- Completed a breath test operator course
- Have a high school diploma or its equivalent
- Be employed by an agency related to DUI services
- Successfully renewed his or her permit
If your breath test operator does not meet the above-stated criteria or doesn’t have a renewed permit, the judge can suppress evidence of your breath test and probably dismiss the case.
Proof that Mouth Alcohol Led to Falsely High BAC Result
Falsely high BAC results can also be suitable grounds for your DUI charges, especially if you were accused of driving with a BAC of 0.08 or above. The reason behind the fifteen observation minutes is to ensure that you do not eat or drink something that contains alcohol in your mouth. This includes:
- Medicine like cough syrups and homeopathic
- Mouthwash and sprays
The officer should also use this time to ensure that you do not regurgitate, burp, or belch. These activities can bring alcohol from your stomach to your mouth, creating a phenomenon known as residual mouth alcohol. Since the accuracy of a DUI breath test equipment depends on your deep lung air measurements, blowing the testing device with alcohol in your mouth mixed with air from your lungs can cause a falsely high BAC. This can be a suitable DUI defense for your charges.
Find a DUI Attorney Near Me
The possibility of facing severe consequences after committing DUI with a child in the vehicle conviction is high. Hiring an experienced DUI attorney can provide better options to reduce or dismiss these charges. At Jonathan Franklin DUI Attorney, our priority is to do everything possible to prevent a possible DUI conviction from becoming part of your criminal record. We adopt strong DUI defense strategies to increase the possibility of reducing your charges or dismissing them entirely. Contact us today at 323-464-6700 and let us help you navigate this challenging moment.