DUI & Enhanced Punishment If There's a Passenger Under 14

California Vehicle Code 23572 VC

California DUI penalties and sentencing are very specific, depending on whether it's your first, second, third, or subsequent conviction.¹ In addition, a number of aggravating factors can increase your sentence.

One of these is California’s DUI "child endangerment" sentencing enhancement.²

If…while driving under the influence…you have a child passenger in the car who is under the age of 14, prosecutors will likely charge you with Vehicle Code 23572 VC in addition to the DUI. If convicted of both, the court will impose additional mandatory jail time.

Proving California’s DUI enhancement for having a minor in the car

Vehicle Code 23572 VC is straightforward. If you are convicted of misdemeanor DUI…and you had a minor under 14 in the car at the time you were arrested…this DUI sentencing enhancement applies. Factors such as

• whether you intended to harm the child,



• your level of intoxication, or



• your driving pattern

don't really matter. The section is only concerned with two questions:

1. whether you were driving under the influence, and



2. whether there was a child under 14 in the car at the time you drove.³

Defending against Vehicle Code 23572 VC allegations

It bears repeating that the DUI penalty enhancement for having passengers under the age of 14 only applies to cases where you have been convicted of Vehicle Code 23152 VC driving under the influence.⁴

As San Bernardino DUI defense attorney Michael Scafiddi explains,⁵ "If your attorney can successfully fight your DUI case, the court cannot impose increased penalty for having a child passenger."

Moreover, even if your lawyer can’t secure you an outright dismissal of the case, a plea bargain to a reduced DUI charge will similarly render the enhanced punishment inapplicable. If, for example, your attorney negotiates your DUI charge down to a "wet reckless",⁶ the section no longer applies.

Penalties, Punishment, and Sentencing for Vehicle Code 23572 VC

If the court sustains the enhanced punishment for having a minor passenger under 14 years of age, you will not only serve your underlying California DUI sentence, but will face an additional and consecutive

• 48 hours in a county jail for a first DUI conviction,



• 10 days in jail for a second DUI conviction,



• 30 days in jail for a third DUI conviction, OR



• 90 days in jail for a fourth or subsequent misdemeanor DUI conviction.⁷

For purposes of DUI sentencing, "prior" DUI convictions only refer to those convictions which you suffered within a ten-year period preceding the arrest in question.⁸

And while first, second, and third DUI offenses are straight misdemeanors (absent a substantial injury or death), a fourth DUI conviction is what’s known as a "wobbler". Depending on the circumstances, prosecutors can elect to charge a wobbler as either a misdemeanor or a felony.⁹

In the case of fourth-time or subsequent DUI cases, the sentencing enhancement only applies to those that are prosecuted as misdemeanors, not felonies.

DUI and its relationship to Penal Code 273a, California’s child endangerment law

Penal Code 273(a) PC, California’s child endangerment law is a separate crime that can be filed as either a misdemeanor or a felony.¹⁰ In cases where an intoxicated person drives with a minor child under 14, prosecutors can elect to charge either the DUI sentencing enhancement or the separate crime of child endangerment, or both.

Penal Code 273a PC punishes those who willfully place a child in a situation where his/her health and/or welfare may be endangered. California courts have found driving under the influence with a child passenger to fall into this category.

This means prosecutors may charge child endangerment regardless of:

1. the age of the minor passenger (that is, anyone under 18 counts), and



2. whether the DUI is filed as a misdemeanor or a felony.

That said, Penal Code 273a PC child endangerment charges are very serious and are not automatically filed in connection with every DUI where there is a child passenger.

Example: Let’s say that you are facing your first DUI charge. You were pulled over because you your brake light was out. The police didn’t witness any other "bad" driving, and you had a relatively low blood alcohol concentration (BAC), a 0.09%. Your 12-year-old daughter is seatbelted in the passenger seat.

Given these facts, it is quite likely that prosecutors would be satisfied charging you with the DUI sentencing enhancement rather than the more serious Penal Code 273a PC offense.

If convicted of misdemeanor child endangerment, you face up to one year in a county jail. If convicted of felony child endangerment, you face up to six years in the California State Prison.¹¹ By contrast, Vehicle Code 23572 VC only subjects you to an absolute maximum of 180 days in jail.

A final important fact to note is that if you are convicted of both DUI and Penal Code 273a PC, the court is prohibited from imposing the additional sentencing enhancement under Vehicle Code 23572 VC.¹²

Call us for help…

Because having a child passenger under 14 can substantially increase your DUI sentence, it is important to consult with a criminal defense attorney who specializes in California DUI law.

For more information about Vehicle Code 23572 VC, or to discuss your case confidentially with one of our California DUI defense attorneys, please don’t hesitate to contact us at Shouse Law Group.

Our law offices are located in and around Los Angeles, Orange County, Riverside, San Diego, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas NV DUI attorneys represent clients accused of violating Nevada’s DUI laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.¹³

You may also find helpful information in our related articles on California’s Driving Under the Influence Laws, California DUI Penalties, DUI Plea Bargaining, Fighting a DUI, and Penal Code 273a, California’s Child Endangerment Law.

Legal References:

¹California Vehicle Code sections 23536-23550 VC set forth the different court imposed penalties for first, second, third, and subsequent DUI convictions.

²California Vehicle Code 23572 -- Conviction of violation of § 23152; minor in vehicle; enhanced punishment. ("(a) If any person is convicted of a violation of [Vehicle Code] Section 23152 [California’s DUI law] and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a person is convicted of a violation of [California Vehicle Code] Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of [California Vehicle Code] Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.")

³See Vehicle Code 23572, California’s DUI "child endangerment" sentencing enhancement, above.

⁴California Vehicle Code 23152 -- Driving under the influence. ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.")

⁵San Bernardino DUI attorney Michael Scafiddi uses his experience as a former Ontario CA police officer to defend clients accused of DUI in the Inland Empire, including Hemet, Riverside, San Bernardino, and Palm Springs.

⁶California Vehicle Code 23103, pursuant to California Vehicle Code 23103.5 – "Wet Reckless". ("(a) If the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of [California Vehicle Code] Section 23103 [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [California Vehicle Code] Section 23152 [California’s DUI law], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense." A conviction under this code does not subject an offender to Vehicle Code 23572 VC, California’s DUI "child endangerment" enhancement.)

⁷See same.

⁸California has a ten-year "look back" or "washout" period. This means that DUI convictions that are outside this timeframe do not automatically increase your current DUI sentence.

⁹California Penal Code 17 – Wobblers – Distinguishing between misdemeanors and felonies. ("(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison. (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.")

¹⁰California Penal Code 273a -- Child endangerment. ("(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.")

¹¹See same.

¹²See Vehicle Code 23572, California’s DUI "child endangerment" sentencing enhancement, endnote 2, above. ("(c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.")

¹³Please feel free to contact our Nevada DUI criminal defense attorneys Michael Becker and Daria A. Snadowsky for any questions relating to Nevada’s DUI laws. Their Nevada law offices are located in Reno and Las Vegas.

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