Vehicle Code § 23572 VC – DUI With Child Under 14 in Car

Califonia Vehicle Code 23572 VC provides for increased penalties if you drive under the influence with a child under the age of 14 in the vehicle. The enhanced sentence includes a mandatory 48 hours of jail for a first-time DUI offense.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What happens if I get a DUI and a child is in the car?
• 2. Are there legal defenses?
• 3. What are the penalties for VC 23572?
• 4. Related Offenses
• Additional Reading

Having a child in your car during a DUI is an “aggravating factor.”

1. What happens if I get a DUI and a child is in the car?

Under VC 23572, a misdemeanor DUI carries additional penalties if you were driving with any person under the age of 14 in the car.¹

This sentence enhancement applies regardless of:

• whether you intended to harm the child,
• your level of intoxication or blood alcohol content (BAC), or
• your driving pattern.

2. Are there legal defenses?

Here at Shouse Law Group, we have represented literally thousands of people charged with drunk driving, including when there was a child in the car. In our experience, the following three defenses have proven very effective with judges, prosecutors, and juries at getting these charges reduced or dismissed.

You Are Not Guilty of DUI

We always attack the underlying DUI charge. Perhaps your breath or blood sample was contaminated, or perhaps you had a medical condition that tricked the breathalyzer into returning a falsely high blood alcohol content result.

If we can get the D.A. to see that your drunk driving charge is baseless, then by extension the child enhancement is baseless as well. A plea bargain to a reduced DUI charge, such as wet reckless, will also avoid a sentence enhancement.

There Was No Child Under 14 in the Car

Perhaps police mistakenly presumed the passenger in your car was younger than 14, or perhaps the child lied about being younger than 14. If we can produce a birth certificate or other proof that shows the passenger was at least 14, then the D.A. should drop the enhancement.

Police Had No Probable Cause to Arrest You

Law enforcement can only arrest you if they have probable cause that you committed an offense. Therefore we pore over the police’s own dashcam and body cam footage, and sometimes it shows that the arresting officers:

• were aggravated and “out to get” you,
• made critical mistakes in administering the field sobriety tests or preliminary breath tests, or
• otherwise failed to follow proper protocol.

Once we present this evidence to the prosecutors, they may have no choice but to drop your entire case for lack of proof.

A violation of 23572 VC can result in potential added jail time on top of your DUI offense.

3. What are the penalties for VC 23572?

Having a child in your car while committing DUI in California is considered an “aggravating circumstance.” This means it increases your jail sentence, as this chart shows:

Note that this jail time is imposed in addition to the sentence that you receive for the underlying DUI offense. For a first time DUI, penalties can include:

• 3 to 5 years of informal misdemeanor probation (typically 3 years),
• DUI school ranging from 3 to 9 months (typically 3 months),
• fines and penalty assessments totaling between $1,500 and $2,000,
• installation of an ignition interlock device (IID) for six months (unless you choose not to drive), and
• a 6-month driver’s license suspension (though you may be able to get a restricted license or drive immediately with an IID restricted license), and
• up to 6 months in jail.

4. Related Offenses

Child Endangerment

If you are accused of DUI with a child in the car, prosecutors may also charge you with child endangerment (PC 273a). For you to be convicted, they would have to prove these elements of the crime:

1. While having care or custody of a child, you willfully caused or permitted the child to be placed in a situation where the child’s person or health was endangered; and
2. You were criminally negligent when you caused or permitted the child to suffer and/or be injured or endangered.

If your behavior did not create a risk of great bodily injury or death, child endangerment is a misdemeanor carrying:

• 6 months in jail and/or
• $1,000 in fines.

Otherwise, child endangerment is a felony carrying:

• 2, 4, or 6 years in prison, and
• Up to $10,000 in fines.

If you are arrested for DUI with a child, the police will usually let you call the other parent or another relative to pick them up. If no one is available to take the child, the police may have to place the child in the temporary protective custody of a foster home or shelter.

Homicide Crimes

In the event a child passenger dies while you are driving under the influence, prosecutors may bring such homicide charges as:

• DUI murder (“Watson murder”), a type of second-degree murder (PC 187)
• Gross vehicular manslaughter while intoxicated (PC 191.5(a))
• Vehicular manslaughter while intoxicated (PC 191.5(b))
• Voluntary manslaughter (PC 192(a))
• Involuntary manslaughter (PC 192(b))

Predictably, these charges can carry extremely long prison sentences and high fines.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Child passengers killed in reckless and alcohol-related motor vehicle crashes – Journal of Safety Research.
• Characteristics of Child Passenger Deaths and Injuries Involving Drinking Drivers, JAMA.
• Motor Vehicle Crashes Associated with Alcohol: Child Passenger Injury and Restraint Use – American Journal of Preventive Medicine.
• Transporting Young Passengers While Impaired: The State of the Law – Health Behavior and Policy Review.
• Child Passenger Deaths Involving Alcohol-Impaired Drivers – Pediatrics.