If you have a child (under 18) in your car when you are arrested for DUI, you can face both:
- A normal DUI charge, and
- A misdemeanor charge for child endangerment
You will not always be charged with both offenses separately. California’s DUI laws have built-in “sentence enhancements” or extra punishments for a variety of circumstances including child endangerment. If this enhancement is applied to your DUI and you are convicted, you will face an extra 48 hours of jail time on top of the minimum 48 hours that is mandatory for a first time DUI—effectively doubling your minimum sentence. And, you could end up facing a maximum of 6 months plus 48 hours of jail time for a first time DUI with a child in the car. There will also be additional fines and a longer probation period.
If the child in the car was under 14, however, the prosecutor will take the charge more seriously. In these circumstances they may end up charging you with the separate offense of child endangerment, or with the DUI sentence enhancement—or even with both. This can trigger much more serious penalties. You should have a lawyer for any DUI involving a child in the car.
Can I go to jail for child endangerment? How long?
Yes. If you are charged with a separate misdemeanor child endangerment charge, that offense on its own carries up to a year in jail—on top of your DUI penalty.
In some rare cases, child endangerment can also be charged as a felony. This is uncommon in DUI cases unless the child was injured in an accident or other extreme recklessness is present. The felony charge carries a sentence of 2 to 6 years in state prison.
You should also be aware that:
- Jail time on a first-time DUI is often waived if you successfully complete probation. However, jail time cannot be waived with a child endangerment enhancement added to the charge.
- If you have two (or more) prior DUIs on your record, and your current DUI involves a child younger than 14, the extra jail time will be 30 days instead of 48 hours.
How does the prosecutor decide which version of child endangerment to charge me with?
In most cases they are either deciding between the DUI sentence enhancement and the separate misdemeanor charge, or whether to use both. They are allowed to seek both charges and will often do so because it maximizes their chances of convicting you on at least one of the two.
However, there is no question that the DUI sentence enhancement is less serious than even the misdemeanor version of a separate child endangerment charge. Prosecutors will sometimes seek only the sentence enhancement as a way to be less hard on a parent who did not intend to hurt their child. Most cases of DUI child endangerment are unintentional, and do not reflect any ill will toward the child.
The prosecutor will consider:
- Did you intend to harm your child?
- How high was your blood alcohol concentration (BAC)?
- Did you exhibit wild driving patterns or extreme aggressive behavior?
Basically, they are looking to see how reckless you were being with your child’s safety. If you were speeding at 40 mph over the limit, they will probably add a separate charge. If you simply had a few drinks and were trying to get home safely, they will probably just seek the enhancement.
How do I fight a DUI child endangerment case?
The prosecutor has to prove you are guilty in order to convict you. This means they have to establish two separate facts:
- You were guilty of driving under the influence of drugs or alcohol according to California law, and
- You had a child under 18 (or under 14) in the vehicle while doing so
Of these, the DUI itself is usually the harder to prove. A good DUI defense lawyer can fight this charge on several grounds:
- Attacking the validity of the breath test or blood test results
- Attacking mistakes that the police made
- Showing that the traffic stop was illegal or that your rights were violated
- Showing that mouth alcohol, rising BAC, diabetes or GERD affected your test results
These strategies often let your lawyer pick off the evidence against you. If the judge rules that any of the evidence must be suppressed, the case for DUI becomes weak, and you may win your case or the prosecutor may have to offer you a deal.
If the DUI charge itself is defeated, there are no grounds for a child endangerment charge.
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 896-2724 and get your free consultation today.