What Happens When One or More Minor Children are Present in the Car When Arrested for DUI?

A DUI charge in California is often classified as a misdemeanor, but can have serious consequences that vary depending upon factors such as prior record and circumstances of the incident.  If there was a minor passenger present in the vehicle at the time, then the consequences can be more severe.  California Vehicle Code Section 23152 covers the crime of Driving Under the Influence; but the Vehicle Code also contains a section regarding enhanced penalties for DUI convictions depending on circumstances such as these.

The Possible Consequences

Under California Vehicle Code 23572, DUI penalties are enhanced to varying degrees by the presence of one or more minors in the vehicle.  In this case, a “minor” is any child 14 years old or younger.  The additional penalty added onto a DUI charge under this section depends upon prior record of the driver.  However, the MINIMUM additional penalty is two days in county jail.  From there, the penalties become more severe.

The additional penalty sounds fairly straightforward, but things can get substantially more complicated if not handled correctly.  This is because the California Penal Code also deals with the presence of minor children in a vehicle which was being driven under the influence.  California Penal Code Section 273(a) provides that it is a crime to willfully endanger a child – which could be filed as a felony or misdemeanor – and has very serious consequences.  California considers willful endangerment of a child to include driving under the influence with a minor in the vehicle.  Conviction under this section could have very serious consequences such as probation, jail time or significant fines – in addition to the consequences which follow conviction under a felony criminal charge, which can include loss of employment.

How the “enhancement” of a DUI works with the felony child endangerment charge

When a DUI is charged which alleges the presence of a minor child in the vehicle, the complaint may contain charges under the DUI provision with the enhancement attached, in ADDITION to a charge of child endangerment.  However, in the end punishment can only be doled out undereither the vehicle code DUI enhancement, or the child endangerment statute, but not both  – this is because both sections are punishment for child endangerment, essentially the same act, and it is established law that the same act is generally not punishable as multiple crimes in this context.  Therefore, if you are convicted of a DUI with the minor passenger enhancement, you will not be subsequently convicted under the potentially more serious child endangerment section, 273(a) of the penal code.

What this comes down to is prosecutorial discretion.  Essentially, the prosecutor has two choices when charging your DUI when a minor passenger is involved.  The prosecutor can seek either to punish you with the enhancement provision of California’s DUI law or pursue a more serious felony charge of child endangerment under the penal code.  While it is true that in California, under the Swann-Gilbert doctrine a crime should be charged under the most specifically relevant law to the incident, that does not force a prosecutor to use the DUI enhancement instead of theCalifornia Penal Code Section 273(a) charge.  This is because the DUI enhancement references the child endangerment charge under the penal code, thus making that doctrine inapplicable.

What can be done to avoid prosecution for felony child endangerment in this situation?

An experienced attorney can help to avoid charge or conviction under the felony child endangerment statute – either through negotiation or argument in trial.  Hiring an experienced attorney right away to handle any DUI charge is the best way to make sure your chances of avoiding felony conviction are as good as possible.

Contact the Law Offices of Robert Ernenwein

Robert Ernenwein has been representing people charged with DUI for over 25 years.  I have represented thousands of individuals before the DMV and in Court since 1987.  I am a Former Los Angeles Deputy District Attorney and pride myself as an experienced and compassionate attorney.  I fight for my clients to obtain the best possible result.  I walk together with my clients throughout every aspect of their case including the DMV and Court.  A more thorough explanation and a full evaluation of your case is available by calling or visiting the firm for a free consultation.  

If you would like to speak to an attorney immediately, consider calling Mr. Ernenwein on his cell phone: 310-892-3712.  

Remember, your call or your visit to our office for a consultation is always free.