California DUI law provides for enhanced penalties for defendants who drive under the influence with a child under the age of fourteen (14) in the car.1
This "DUI with child endangerment" sentence enhancement, set forth in Vehicle Code 23572 VC, consists of additional mandatory jail time (on top of standard California DUI penalties). This means that if you are convicted of driving under the influence with a child in the car, you will definitely serve time in jail. 2
The following chart sets forth the additional jail time for DUI with a minor in the car that is required by VC 23572:
Type of DUI
VC 23572 “DUI with Child in Car” Sentence Enhancement
48 hours in jail
10 days in jail
30 days in jail
4th offense misdemeanor DUI
90 days in jail
What does the prosecutor have to prove to convict me of VC 23572 DUI with a child 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, then the "DUI with child endangerment" 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. VC 23572 is only concerned with two questions:
- whether you were driving under the influence, and
- whether there was a child under 14 in the car at the time you drove.3
How can I fight a DUI child endangerment sentence enhancement?
It bears repeating that the penalty enhancement for DUI with a minor under 14 in the car only applies to cases where you have been convicted of Vehicle Code 23152(a) VC driving under the influence or Vehicle Code 23152(b) VC driving with a BAC of 0.08 or above.4
As San Bernardino DUI defense attorney Michael Scafiddi explains,5
"If your attorney can successfully fight your DUI case, the court cannot impose the increased penalty for having a child passenger--and VC 23572 will not apply."
Moreover, even if your lawyer can't secure you an outright dismissal of the case through common DUI defenses, a plea bargain to a reduced DUI charge will also avoid the sentence enhancement for DUI with a child in the car.
How Much Extra Jail Time Will I Serve for DUI With a Minor in the Car Under VC 23572?
If you are convicted of DUI and the sentence enhancement for DUI with a minor passenger applies, you will face both normal DUI penalties and the following additional and consecutive sentence:
- forty-eight (48) hours in a county jail for a first DUI conviction,
- ten (10) days in jail for a second DUI conviction,
- thirty (30) days in jail for a third DUI conviction, OR
- ninety (90) days in jail for a fourth or subsequent misdemeanor DUI conviction.7
This is a mandatory sentence--which means you will definitely serve the time if convicted with a Vehicle Code 23572 DUI with a child in the car enhancement.
For purposes of DUI sentencing, "prior" DUI convictions only refer to those convictions which you suffered within a ten-year period prior to being arrested for VC 23572 DUI with child endangerment.8
A fourth DUI in a ten-year period can be charged as either a misdemeanor or a felony. If it is charged as a felony, the Vehicle Code 23572 VC enhancement for DUI with a child in the car will not apply.9
Can I be charged with both VC 23572 DUI with a child in the car and PC 273a child endangerment?
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 California child endangerment law 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.
In cases where an intoxicated person drives with a minor child under 14 in the car, prosecutors can elect to charge any of:
- the Vehicle Code 23572 VC DUI sentencing enhancement,
- the separate crime of child endangerment, OR
- both DUI with a child in the car AND child endangerment.
However, you cannot be convicted of both DUI with a child in the car and child endangerment. The court is prohibited from imposing the additional sentencing enhancement under Vehicle Code 23572 VC on people who are also convicted of child endangerment.11
(It is, however, possible to be convicted of both ordinary DUI--without the minor-in-the-car sentence enhancement--and child endangerment.)
Prosecutors may charge child endangerment regardless of:
- the age of the minor passenger (that is, anyone under 18 counts), and
- 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. Prosecutors usually save child endangerment charges for the most serious cases.
Example: Scott is pulled over because his brake light is out. His 12-year-old daughter is in the passenger seat, wearing her seat belt. The officer smells alcohol on Scott's breath and commences a DUI investigation. It turns out that Scott's BAC is 0.09%. Scott has never been convicted of DUI before.
In this case, the prosecutor is likely to charge Scott with DUI with a child under 14 in the car under VC 23572. They are unlikely to file child endangerment charges because this is not a particularly serious DUI.
Example: A California Highway Patrol officer pulls Elizabeth over for erratic driving. It turns out that Elizabeth is extremely intoxicated and slurring her speech. A DUI breath test reveals that her BAC is 0.15%. Elizabeth also has her 2-year-old grandson in the back seat, not strapped into a car seat.
Elizabeth may end up being charged with both DUI and PC 273a child endangerment instead of the DUI with a minor passenger sentence enhancement, since her offense is more serious.
If convicted of misdemeanor child endangerment, you face up to one (1) year in a county jail. If convicted of felony child endangerment, you face up to six (6) years in the California State Prison.12
By contrast, Vehicle Code 23572 VC, DUI with a child in the car, only subjects you to an absolute maximum of 180 days in jail.
Call us for help . . .
If you or a loved one is charged with Vehicle Code 23572 VC DUI with a child under 14 in rhe car, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
- California Vehicle Code 23572 VC -- Conviction of violation of section 23152; minor in vehicle [DUI with child in the car]; 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.")
- California Vehicle Code 23152 VC -- 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.")
- San Bernardino DUI attorney Michael Scafiddi uses his experience as a former Ontario police officer to defend clients accused of DUI, including the DUI with a child in the car sentence enhancement, in the Inland Empire, including Hemet, Riverside, San Bernardino, and Palm Springs.
- California Vehicle Code 23103 VC, pursuant to California Vehicle Code 23103.5 VC - "Wet Reckless". A conviction under this code does not subject an offender to Vehicle Code 23572 VC, California's DUI with "child endangerment" enhancement.
- See same.
- California 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, including for DUIs with a minor or child in the car under VC 23572.
- California Penal Code 17 - Wobblers - Distinguishing between misdemeanors and felonies [such as misdemeanor vs felony DUI--felony DUI cannot include a VC 23572 DUI with child in the car enhancement].
- California Penal Code 273a PC -- Child endangerment [sometimes charged along with or instead of DUI with a child under 14 in the car].
- See California Vehicle Code 23572 VC, California's DUI "child endangerment" sentencing enhancement, endnote 1, above.
- California Penal Code 273a PC -- Child endangerment [sometimes charged along with or instead of DUI with a child under 14 in the car], endnote 10 above.