Colorado DUI or DWAI With a Child in the Car is Child Abuse

Colorado DUI with a child in the car -- 18-6-401, C.R.S.

Under Colorado 18-6-401, C.R.S, DUI or DWAI with a child in the car is considered child abuse. It applies to any child under 16--not just your own child.

If the child in the car is not injured, DUI or DWAI with a child in the vehicle is misdemeanor child abuse. If the child is injured or dies, it is felony child abuse and you can be sent to prison (not jail).

To help you understand the consequences of Colorado drunk or drugged driving with a minor child in the car, our compassionate Colorado DUI defense lawyers explain:

1. The definition of Colorado child abuse

You commit child abuse in Colorado when:

  • you cause an injury to a child's life or health, or 
  • you permit a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health.1

In Colorado, driving drunk or drugged with a child under 16 in the car is considered child abuse.

2. Penalties for DUI / DWAI child abuse

2.1. Child in car not injured: misdemeanor penalties

If the child was not injured, having a child in your car during a Colorado DUI or DWAI is a misdemeanor.

In addition to penalties for the underlying DUI or DWAI, consequences of a Colorado misdemeanor child abuse conviction can include:

  • 3 months-1 year in jail, and/or
  • A fine of up to $1,000.2

2.2. Child in car injured: felony penalties

If a child under 16 in your car is injured when you commit DUI or DWAI, the child abuse is usually a class 3 penalty resulting from criminal negligence.

In addition to punishment for the underlying drunk or drugged driving, consequences can include:

  • 2-6 years in a Colorado prison (with mandatory 3-year parole),3 and/or
  • A fine of $2,000-$500,000.4

If you acted recklessly, however, the penalties increase to:

  • 4-12 years in a Colorado prison (with mandatory 5-year parole),5 and/or
  • a fine of $3,000--$750,000 dollars.6

2.3. Child in car dies: felony penalties

If a child in your car dies because of your criminal negligence, child abuse is a class 3 felony. Consequences can include:

  • 4-12 years in a Colorado prison (with mandatory 5-year parole),7 and/or
  • a fine of $3,000--$750,000 dollars.8

If you acted recklessly, however, the child abuse becomes a class 2 felony. Consequences of Colorado class 2 felony child abuse can include:

  • 8-24 years in a Colorado prison (with mandatory 5-year parole),9 and/or
  • a fine of $5,000- $1,000,000 dollars.10

2.4. Recklessness vs. criminal negligence

A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.11 

A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.12

The difference between criminal negligence and recklessness comes down to whether you are aware of the risks. If you understand the risks and ignore them, you act recklessly. If you simply fail to understand the risks (but should have), you are criminally negligent.

Most of the time, felony child abuse from DUI or DWAI is considered criminal negligence. It is possible, however, that there are circumstances in which an aggressive prosecutor might charge you with reckless child abuse. However, there is little case law to offer guidance on precisely what those circumstances might be.13 

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2.5. Collateral consequences of a CO child abuse conviction

In addition to the criminal penalties set forth above, consequences of a Colorado conviction for child abuse can include:

  • Mandatory parenting classes, 
  • Mandatory testing for drug and alcohol, 
  • Denial of custody or visitation rights,
  • Mandatory disclosure on employment applications, and
  • Loss of your right to own a firearm.

3. The child abuse investigation

In addition to criminal penalties, a child abuse charge will invite an investigation by the Colorado Department of Human Services (DHS). Regardless of whether you are convicted, if the investigation finds you committed child abuse, your name will be entered into the TRAILS system – the Colorado State child abuse registry.

Although the public does not have full access to the TRAILS system, it is used by a number of groups involved in child welfare – including teachers, daycare centers, foster parents and community organizations.

4. Defenses to CO DUI with a child in the car

If you were charged with child abuse in Colorado because of drunk or drugged driving with a minor in the car, your best defense is to fight the DUI charge itself.

Colorado DUI defenses often include:

  • Your blood alcohol concentration (BAC) was .05% or less.
  • Your driving was not impaired by alcohol or drugs.
  • Your arrest was unlawful.
  • The officer had no probable cause to pull you over.
  • The officer had no reasonable basis to suspect you of alcohol and/or drug use.
  • The officer failed to advise you of your rights.
  • Your DUI chemical test was not conducted in accordance with Colorado regulations.
  • There were errors in your DUI breath test or DUI blood test.

A skilled Colorado criminal defense attorney may also be able to negotiate with the prosecutor for a plea bargain to a lesser charge, such as a DUI or DWAI without the child abuse charge, or misdemeanor instead of felony child abuse.

Call us for help…

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Colorado takes child abuse charges seriously and so do we. If you have been charged with child abuse based on DUI or DWAI, we invite you to call us for a free consultation. Our caring and experienced Colorado DUI defense attorneys will do all we can to preserve your good name and keep you out of prison or jail.

Don't let a tragic mistake cost you your freedom. Contact us today and find out why our attorneys are considered some of the best DUI lawyers in Colorado.

Communities we serve include Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, Thornton, Arvada, Westminster and Centennial.14

Our convenient Denver home office is located at:

Colorado Legal Defense Group
1400 16th Street
16 Market Square
Denver CO 80202
(720) 955-6112


Legal references:

  1. 18-6-401 (1)(a), C.R.S. 
  2. 18-1.3-501 (1)(a), C.R.S.
  3. 18-1.3-401 (1)(a )(V)(A), C.R.S.
  4. 18-1.3-401 (1)(a )(III)(A), C.R.S.
  5. 18-1.3-401 (1)(a)((V)(A), C.R.S.
  6. 18-1.3-401 (1)(a)(III)(A), C.R.S.
  7. 18-1.3-401 (1)(a)((V)(A), C.R.S.
  8. 18-1.3-401 (1)(a)(III)(A), C.R.S.
  9. 18-1.3-401 (1)(a)((V)(A), C.R.S.
  10. 18-1.3-401 (1)(a)(III)(A), C.R.S.
  11. 18-1-501 (3), C.R.S.
  12. 18-1-501 (8), C.R.S.
  13. See, People v. Weinreich, 98 P.3d 920 (2004), in which the prosecutor argued that the defendant acted recklessly when he failed to properly restrain his daughters, drove while intoxicated, and passed on the left. The verdict was reversed and the case was remanded to the lower court due to erroneous jury instructions on the issue.
  14. We also have offices throughout California and Nevada. For more information, visit www.shouselaw.com. 

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