DUI is itself a crime in Colorado. But if you drive under the influence and have a child under the age of 16 in the car, you can also be charged with child abuse.
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 (rather than jail). You can find out more information on the differences between a felony and a misdemeanor here.
Colorado’s child abuse statute CRS 18-6-401 states:
(1)(a) A person commits child abuse if such person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.
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. What is child abuse in Colorado?
- 2. What are the penalties for DUI / DWAI child abuse?
- 3. How does the child abuse investigation go?
- 4. What are the defenses to CO DUI with a child in the car?
Driving with a child while DUI in Colorado is a misdemeanor if the child remains injured.
1. What is child abuse in Colorado?
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. What are the 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:
- 364 days 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, child abuse is usually a Colorado class 3 felony 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
Defendants arrested for DUI with a child in Colorado may also be investigated by the DHS.
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, 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
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. How does the child abuse investigation go?
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. What are the 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 our law firm for legal advice. We offer free consultations.
Colorado takes child abuse charges seriously and so do we. If you have been arrested for DUI with a child in the car, we invite you to call us for a free consultation.
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
4047 Tejon Street
Denver, CO 80211
(303) 222-0330
Learn more about Colorado DUI laws.
Legal references:
- 18-6-401 (1)(a), C.R.S.
- 18-1.3-501 (1)(a), C.R.S.
- 18-1.3-401 (1)(a )(V)(A), C.R.S.
- 18-1.3-401 (1)(a )(III)(A), C.R.S.
- 18-1.3-401 (1)(a)((V)(A), C.R.S.
- 18-1.3-401 (1)(a)(III)(A), C.R.S.
- 18-1.3-401 (1)(a)((V)(A), C.R.S.
- 18-1.3-401 (1)(a)(III)(A), C.R.S.
- 18-1.3-401 (1)(a)((V)(A), C.R.S.
- 18-1.3-401 (1)(a)(III)(A), C.R.S. See also People v. Deskins (Court of Appeals of Colorado, Division Four, 1995) 904 P.2d 1358; People v. Childress (2015) 363 P.3d 155.
- 18-1-501 (3), C.R.S.
- 18-1-501 (8), C.R.S.
- See, People v. Weinreich (2004) 98 P.3d 920, 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.
- We also have offices throughout California and Nevada.