Under California law, it is a criminal offense to operate a vehicle under the influence of alcohol as outlined under the California Vehicle Code Section 23152 VC. You may face some additional fines for operating a vehicle under the influence of alcohol while in the company of a child under 14 years. According to the California Vehicle Code Section 23572 VC, it is illegal to drive with a minor passenger while intoxicated. If you are facing DUI with a Minor Passenger Under 14 charges, the Orange County DUI Defense Attorney Law Firm can help you come up with a good defense.
Overview of DUI with Minor Passenger Under 14
Most states in the United States treat DUI with a Minor Passenger Under 14 differently from other standard DUI cases. In some states, DUI with a minor passenger is a distinct crime with distinct penalties. In California, DUI with a minor does not attract distinct penalties but rather attracts an enhancement of standard DUI charges. The motivation of the penalty enhancement is to deter drivers from drunk driving while they have minor passengers onboard. Of all the penalty enhancements for DUI cases, the enhancement for DUI with a Minor Passenger Under 14 is detrimental as jail time becomes mandatory. You cannot exchange the jail time with probation, community service, or a plea bargain. There is no other form of alternative sentencing for cases involving DUI with a minor; you have to face the penalty enhancements.
The California Vehicle Code Section 23572 VC sets out a sentence enhancement for DUI with child endangerment cases. If you are guilty under California Vehicle Code Section 23572 VC, you may face some additional penalties on top of the standard DUI penalties in California. The standard DUI penalties under California law vary depending on the nature of the offense. Repeat offenses attract higher penalties than first-time offenses.
For the penalty enhancement to apply, you must be guilty of driving under the influence under vehicle code 23152 VC. For instance, the prosecutor must prove that you had a blood alcohol concentration of more than .08% BAC at the time of the arrest. The prosecutor must also prove that you were in the company of a minor passenger below the age of 14 years at the time of committing the DUI offense. In DUI cases with a passenger under the age of 14, factors such as your level of intoxication, your intoxication, and whether you intended to harm the child or not is a non-issue. All the prosecutor has to prove is that you were intoxicated and that you had a minor passenger.
Child Endangerment (California Penal Code 273 (a) PC)
Besides facing enhanced DUI penalties, DUI with a Minor Passenger Under 14 may attract charges under California Penal Code 273 (a) PC for child endangerment. Charges under the California Penal Code 273 (a) PC applies if you endanger the life of a person below the age of 18 years. A child endangerment offense is a wobbler under California law and may attract either felony charges or misdemeanor charges depending on the nature of the offense.
Under Penal Code 273 (a), the law prohibits exposing a child to danger, pain, or suffering. Therefore, you can be guilty of child endangerment even if the child passenger does not suffer any harm. Driving under the influence exposes a child to potential danger/harm, and this makes you guilty of child endangerment. For a misdemeanor offense, you may face imprisonment of up to one year in county jail. You may also incur fines that may amount to $1,000. If you expose a child to a risk of great bodily harm or death, you may face felony charges. For a felony child endangerment, you may face imprisonment for two, four, or six in California state prison. You may also incur a hefty fine of up to $10,000.
To be liable under California Penal Code 273 (a) PC for DUI with a minor passenger under 14, the prosecutor has to prove several elements of child endangerment. The prosecutor must prove that you willfully caused pain, mental suffering, or exposed a child to danger. The prosecutor must also prove that you willfully allowed a child to suffer pain or mental suffering. In a DUI case, a child may undergo mental suffering due to the inherent outcomes of drunk driving, including accidents.
The prosecutor has to prove that while the child was under your custody, you allowed the child to be placed in a situation where his/her person or health is endangered. The prosecutor portrays that you acted negligently at the time you allowed the child to suffer or face inherent danger. In proving negligence, the prosecutor has to prove to the court that you acted in a negligent manner that is different from the way a normal person would have acted in similar circumstances. You may also be guilty of criminal negligence if your actions portray a disregard for human life. The prosecutor may argue that if a reasonable person were in your situation, he/she would have known that acting the way you did might have lead harm to the minor passenger. In assessing negligence, the court determines what a reasonable person would have done in similar circumstances.
When Do You Face Felony Child Endangerment Charges
To face felony charges under California Penal Code 273 (a) PC, the prosecutor must prove that you acted in circumstances that would have led to great bodily injury or death of the child. The prosecutor does not have to prove that your actions led to the actual outcome of inflicting great bodily injury or death. The prosecutor only has to prove that your actions had the potential or the likelihood of having a detrimental outcome.
Great bodily injury refers to a significant injury; minor bruises or injuries do not count as great bodily injury. The prosecutor may strive to prove that great bodily injury occurred or that the child was exposed to a danger of great bodily injury. However, the court is responsible for determining the existence of a significant bodily injury or the risk of great bodily injury on a case-by-case basis.
Other Penalties for Child Endangerment
If the court charges you with child endangerment for DUI with a minor passenger under 14, you may face a wide range of misdemeanor or felony charges. Other than imprisonment and fines, other potential penalties may include:
Summary Probation
If the court convicts you of a misdemeanor under California Penal Code 273 (a) PC, the judge may recommend misdemeanor probation, also known as informal or summary probation. The minimum period of misdemeanor probation for child endangerment is four years. The probation may entail some conditions. For a DUI offense, the conditions for probation may include random drug testing. The judge may order you to stay away from drugs or alcohol for the entire period of probation. If you comply with all the terms of probation for the first year or two, the court may offer you an early termination of probation; you would not have to serve the full probation.
Three Strikes Law
If you commit a DUI with a Minor Passenger Under 14 and the child suffers great bodily injury, your child endangerment charge may count as a strike under the California Three Strikes Law. If you already have a strike on your criminal record and you receive a second strike for endangering a child while under the influence, you may receive double sentencing.
DUI with a Minor Penalty Enhancement
The DUI with child enhancement includes a mandatory jail time, which may vary for first-time offenders and repeat offenders. Therefore, for a conviction of driving under the influence in the company of a minor, you will have to serve some time in jail.
For a first time DUI offense, the mandatory jail time applicable for DUI with a minor under 14 is 48 hours. For a second DUI conviction, the applicable jail enhancement is ten days. For a third time DUI conviction, the applicable enhancement is 30 days, and for the fourth or subsequent offense, the applicable jail time is 90 days. For past DUI convictions, the court considers convictions that occurred in the previous ten years.
The enhanced penalties for DUI with a minor under 14 are only applicable for convictions under California Vehicle Code Section 23572 VC. Therefore, if your attorney helps you negotiate for a reduction of your DUI charges to a wet reckless; you cannot face the penalty enhancements. A fourth DUI offense within ten years may count as a misdemeanor or as a felony. If the offense is a felony, the enhancement for DUI with a child will not apply.
Will I Face Other Penalties Alongside DUI with a Minor Penalty Enhancement?
It is important to note that DUI with Minor Passenger under 14 enhancements apply alongside the standard DUI penalties. Therefore, upon committing an offense under California Vehicle Code Section 23572 VC, you will face standard DUI charges alongside the enhanced charges. Standard DUI charges may include:
Imprisonment
If you commit a first-time DUI offense in California, you may serve an imprisonment of up to six months in county jail. For a second time DUI offense, you may serve minimum imprisonment of 96 hours or maximum imprisonment of 1 year in county jail. For a third time DUI offense, the applicable imprisonment may range from 120 days to 1 year in county jail. For a DUI with an injury, you may serve and imprisonment of up to one year in county jail. For a first felony DUI with injury, you may serve imprisonment ranging from 16 months to 16 years in state prison. For another felony DUI offense, the imprisonment period may be 16 months, two years, or three years in state prison.
Fines
For a first time misdemeanor DUI offense to a third--time misdemeanor DUI offense, the applicable fines may range from $390 to $1000. For misdemeanor DUI with injury, the applicable fines may range from $ 390 to $ 5,000. For a first offense felony DUI with injury, the applicable fines may range from $1015 to $ 5,000. For both misdemeanor DUI with injury and felony DUI with injury, you may face some additional expenses for restitution of the victims. Restitution refers to a reimbursement of the costs a victim may have incurred, including medical costs and counseling costs, among others.
Ignition Interlock Device
For a first time DUI offense, an ignition interlock device (IDD) is not a mandatory requirement. Some drivers may choose to have an IDD for six months as this may prevent license suspension. For a first time DUI offender, your license may be suspended for four months. However, 30 days after license suspension, you may apply for a restricted driver's license. You can use a restricted driver's license to drive to and from work or school for five months.
For a second-time misdemeanor DUI offense, a driver may install an ignition interlock device in his vehicle for one year. If the driver chooses not to install the IID device, he may have his/her driver's license suspended for two years. After one year, the driver may acquire a restricted driver's license to allow him to drive to and from work or school.
For a third-time misdemeanor DUI offense, a driver may choose to install an ignition interlock device for two years. If the driver chooses not to install the driver, he may face a license suspension of up to three years.
For a first time DUI with injury offense, the law requires the installation of an ignition interlock device for six months. If you choose not to install an IDD, you may face a license suspension of up to one year.
For a first-time felony DUI with injury, the law requires you to install an ignition interlock device for one year.
DUI School
For a first misdemeanor DUI offense, you may serve three or nine months in approved California DUI school.
For a second-time misdemeanor DUI offense, you may face California DUI school for repeat offenders (SB 38). You may serve an 18 months repeat DUI school program or a 30 month DUI school for repeat offenders depending on the nature of your offense.
For a third misdemeanor DUI offense, you may spend 30 months in a California DUI school for repeat offenders.
For a misdemeanor DUI with injury, the court may recommend a 3-month, 18-month, or 30-month DUI school program.
For a first felony DUI with injury, the court may recommend an 18-month or a 30 month DUI school program.
Can You Face Charges Under Both VC23572 and Penal Code 273 (a) PC
If you operate the vehicle under the influence and with a minor child below the age of 14 years in your vehicle, the prosecutor may charge you under California Vehicle Code Section 23572 VC, child endangerment under Penal Code 273 (a) PC, or both. However, the court cannot convict you for both DUI with a child in the car and child endangerment. For a person convicted of child endangerment, the law prohibits imposing of penalty enhancements under 23572 VC on the person.
However, you may face charges for a normal DUI without a minor in the car and at the same time face charges for child endangerment under Penal Code 273 (a) PC. Offenses under Penal Code 273 (a) PC are very serious, and most prosecutors do not charge drunk drivers with child passengers with this offense unless the drivers commit a very serious crime.
For instance, the prosecutor may charge you with child endangerment if you record very high levels of blood alcohol content (BAC). You may also face child endangerment charges if you were operating the vehicle at very high speeds. If the child was not in the proper car seat, and if the child was not wearing a seatbelt, you might face child endangerment charges.
Legal Defenses for DUI with Minor Passenger Under 14
An offense of DUI with a Minor Passenger Under 14 is a serious offense under California Vehicle Code Section 23152 VC. If you are facing charges for the offense, it is important to seek legal representation. An attorney can help you come up with the right defense strategy.
In offenses involving DUI with a minor passenger under 14, beating the DUI charges can help you avoid the enhanced sentencing. The charge for drunk driving with a passenger under 14 will only apply if the court convicts you of driving under the influence as outlined under VC 23152(a) DUI or VC 23152(b). Therefore, if you can prove that you were not intoxicated, you can walk free. Some of the common legal defenses for California Vehicle Code Section 23152 VC include:
Bad Driving is not Necessarily a Sign of Intoxication
When handling your California DUI cases, a prosecutor places a lot of emphasis on your driving patterns. In most cases, the DUI arresting officer may testify that at the time of the arrest, you were operating your vehicle in a manner that matches someone intoxicated/ under the influence. Patterns of an intoxicated person may include making the wrong turns and speeding. Your attorney can assert that sober drivers make the vast majority of traffic rule violations compared to intoxicated drivers. Therefore, your attorney may argue that you were operating your vehicle in a careless manner, but you were not under the influence.
Deny Symptoms of Intoxication
During the court proceedings, the prosecutor may quote various physical signs of intoxication to prove that you were under the influence at the time of the arrest. Common physical signs of intoxication may include confusion, incoherent speech, bloodshot eyes, drowsiness, or lack of balance.
In challenging the prosecutor's evidence, you may argue that the physical signs such as red eyes and lack of balance were due to an illness or discomfort but not due to intoxication. You may also argue that signs such as drowsiness were due to fatigue.
You may also quote fatigue or your natural physical coordination as the cause of your poor performance in the field sobriety tests.
Falsely High BAC Results
If the prosecutor accuses you of driving with a BAC of .08% and above, falsely high BAC results can be a good basis for legal defense. Some products, such as mouthwash have high alcohol content and may result in residual mouth alcohol. Accurate California DUI breath testing relies on measuring the alcohol content in deep lung air. However, if the device measures residual mouth alcohol, it may record falsely high blood alcohol concentration results. Your attorney may argue that the high BAC results are not because of intoxication but because of using other products that cause residual mouth alcohol.
Wrong DUI Testing Procedures
Alcohol tests, breath tests, and blood tests should be conducted by well-trained persons. The testing officer must also follow the proper testing procedure. In cases where a breathalyzer is used, it should be well maintained and calibrated. When preparing your defense, an attorney may examine the equipment used to administer the DUI tests. If the equipment is faulty, wrongly calibrated, or is not well maintained, the attorney may challenge the credibility of the DUI results. The attorney may also challenge the BAC results if a qualified person did not conduct the tests. The court may dismiss any evidence that was not properly obtained.
Inflated BAC
If you suffer from a medical condition such as diabetes, it may form a basis for a defense against DUI cases. In addition, certain diets may result in high BAC results, and these may also form a good DUI defense. A high protein or a low carbohydrate diet may lead to unusually high blood alcohol concentration results. Fasting may also lead to high BAC results. The mentioned factors may lead to an unfair DUI charge where your high BAC results are not due to intoxication but due to your diet or a medical condition.
Contact an Orange County DUI Defense Attorney Law Firm Near Me
DUI with a Minor Passenger Under 14 attracts hefty DUI penalty enhancements that result in mandatory imprisonment. The mandatory imprisonment varies for a first time DUI offense and repeat DUI offenses. If you or your loved one is facing DUI with a minor passenger under 14, the Orange County DUI Defense Attorney Law Firm can assist. Contact us at 714-740-7866 and speak to one of our attorneys today!