Per Vehicle Code Section 23572, driving under the influence with a passenger under fourteen years carries a sentencing enhancement to the original offense. It is regarded as egregious because the minor cannot make an informed decision but entrust you with her life. A conviction could adversely affect your career, finances, reputation, and future. If you or a loved one has been arrested for VC 23572, you should consult with an experienced attorney. At The Los Angeles Criminal Defense Attorney, we can help you know your rights and work aggressively to realize the best possible outcome.
Understanding DUI With a Child in a Car
Under Vehicle Code Section 23572 VC, it is illegal for a person to:
- drive their motor vehicle with a passenger who is a minor
- while their blood alcohol concentration is more significant than 0.08 percent.
The minor should be under fourteen years.
Please note the following factors do not matter:
- Whether the defendant planned to hurt the person below 14
- The degree of intoxication
- Driving pattern
To be convicted, the prosecutor should establish the following:
- You operated your motor vehicle while drunk
- You had a child passenger aged below fourteen years when you drove
What Penalties Does Driving Under the Influence with a Minor Passenger Carry?
If convicted of a California misdemeanor and you have a minor passenger below fourteen, the child endangerment sentencing enhancement applies. That means you'll be subjected to both ordinary drunk driving consequences and the consecutive and additional sentence as follows:
- A forty-eight-hour county jail sentence for a first conviction
- A ten-day jail sentence for a second-time conviction
- A third conviction carries thirty days in county jail
- A subsequent California misdemeanor driving under the influence conviction attracts ninety days in county jail
The sentence is compulsory, and you should serve time if found guilty of the crime in question.
In this context, the term "prior DUI conviction" means convictions you faced within ten years (look-back period) before being charged with Vehicle Code Section 23572 VC.
A fourth-time drunk driving conviction during the ten-year timeframe is a wobbler. It could be prosecuted either as a California felony or a misdemeanor. A California felony does not attract the VC 23572 enhancement.
Can You be Convicted of Both Vehicle Code Section 23572 and Child Endangerment?
Child endangerment (PC 273a) is a different offense. It is illegal to willfully put a minor in circumstances where their health or welfare is endangered. Courts have categorized DUI with a child as a child endangerment offense.
If a drunk person operates their car with a child passenger below fourteen, the prosecutor could decide to charge one of the following:
- VC 23572 sentencing enhancement
- Child endangerment crime
- Both child endangerment under PC 273a and DUI with a minor
Nonetheless, a defendant cannot be sentenced for both child endangerment and DUI with a minor. It is illegal to impose additional sentencing enhancement per VC 23572 on a defendant sentenced for PC 273a. However, you can be sentenced for both child endangerment and ordinary drunk driving without a child passenger sentence enhancement.
The prosecutor could file child endangerment charges irrespective of:
- The minor passenger's age
- Whether the drunk driving crime is a California felony or misdemeanor
Penalties Attracted by Child Endangerment
Child endangerment is a wobbler. It could be charged either as a felony or a misdemeanor, hinging on the allegations' seriousness and your criminal history.
If your drunk driving does not create a risk of death or severe bodily injury, the offense is a misdemeanor. It is punishable by one thousand dollars in fines and a six-month jail sentence. On the other hand, a felony carries the following consequences:
- Two, four, or six years in state prison
- A maximum of ten thousand dollars in fine
Alternatively, the court can choose to sentence you to four (4) years of felony (formal) probation.
A PC 273a charge is severe and isn't automatically brought together with all DUI with a child passenger. Usually, the prosecution team saves PC 273a charges for the most severe charges. A prosecutor will look at the case circumstances before determining whether to charge you with PC 273a or DUI with a child passenger. For instance, you could have a minor passenger, but if you don't have any previous DUI conviction or your BAC is slightly above the legal limit, the prosecutor might charge you with DUI with a child passenger below fourteen enhancement. On the other hand, if you had a high BAC or were too careless, the prosecutor might choose the child endangerment charge. As a result, it is imperative to engage a skilled DUI defense attorney.
How to Beat Vehicle Code Section 23572 VC Charges
As previously mentioned, sentencing enhancement for Vehicle Code 23572 VC applies only in cases where the accused has been convicted of:
- Driving under the influence (VC 23152(a))
- Driving with a blood alcohol concentration above 0.08 percent (VC 23152(b))
Any experienced DUI defense attorney could secure a defendant a case dismissal through drunk driving defenses such as:
Objective Signs and Symptoms of Intoxication is Different from Drunk Driving
A practical method to beat the charge is to challenge the prosecutor's use of intoxication symptoms to claim that you were intoxicated.
Physical appearance is vital in DUI investigations. The arresting officer will undeniably testify that the accused was drunk because the defendant had:
- Slurred speech
- An unstable gait
- Alcoholic odor on the breath
- Watery eyes
- A flushed face
The above signs and symptoms of intoxication are outlined in Form 5.2.5 used by law enforcement authorities. Using the arrest form, the arresting officer will check-off that you exhibited intoxication signs without further explanation.
A lawyer could defend their client against the charge by addressing innocent explanations such as fatigue, eye irritation, allergies, or a cold that might have triggered the signs.
You Were Not Driving
It is not adequate that the police prove that you were drunk. The crime is operating a car while intoxicated.
The no-driving legal defense is common when no one saw the accused drive. The police do not observe every vehicle offense. It is especially true where a vehicle breaks down or an accident occurs. Typically, the police do not reach the scene until driving has stopped.
In California, a person drives when they move a car of their volition.
If, for instance,
- you were involved in a crash that no person saw you operating the vehicle,
- the law enforcer found you were in a parked car, or
- the vehicle's engine was on,
it can be more challenging for the prosecutor to establish that you drove the motor vehicle.
Lousy Driving is Different from Driving While Under the Influence
Prosecutors pay attention to driving patterns during DUI with a minor passenger case. The arresting cop will testify that you drove in a way consistent with an intoxicated individual. Usually, the patterns involve accusations that you were weaving within the lane or speeding. The driver could probably be adjusting their stereo, tending to a baby, picking something that fell, eating, drinking, or talking to their passengers.
Your competent attorney should rebut the evidence by testifying how you drove with caution. The lawyer can claim that:
- Driving pattern isn't a reliable DUI predictor, and
- Sober drivers cause most driving violations.
Inherent Error Rates for Chemical Testing
Assuming that the DUI testing conditions are okay, there is still an inherent error rate with drunk driving chemical testing. Chemical testing has a positive or negative error rate that ranges between 0.005 percent and 0.02 percent.
Therefore, any defense lawyer should challenge blood alcohol concentration results between 0.08 and 0.10 percent.
The Arresting Police Did Not Observe You for Fifteen Minutes
Police should observe you for at least fifteen minutes before the drunk driving chemical test. However, most cops do not adhere to this rule. Rather, they prepare the testing gadget or do paperwork. Establishing the cops did not observe might call into question your blood or breath test results and the DUI investigation.
The Police Officer Did Not Have Probable Cause for Your DUI Stop
Before law enforcers can stop you, arrest you for drunk driving, or detain you to conduct an investigation, they should have a probable cause. Probable cause is a reasonable belief that you committed a crime.
If the police do not have the probable cause before conducting an investigation, any evidence obtained should be suppressed. If the evidence is suppressed, the prosecutor can't use it against you in the DUI with a minor passenger.
The Arresting Officer Did Not Follow the Title 17 Regulations
Title 17 of the code of regulations outlines how the police should conduct DUI chemical tests. They include:
- The arresting officer should observe you for fifteen minutes
- Proper administration of the chemical test
- Regular maintenance and calibration of the testing gadgets
- Proper collection, storage, and handling of urine and blood samples
- Adequate training for the person administering the chemical tests
If the law enforcer fails to adhere to Title 17, the prosecutor cannot use your test results as proof. Challenging the violation in your VC 23572 case can lead to an acquittal at trial, plea bargain negotiations to less severe charges, or even case dismissal.
Your Blood Alcohol Concentration Was On the Rise
It is okay to take alcohol before driving. What is unlawful is being intoxicated while operating your motor vehicle. When an individual drinks, their BAC rises steadily and rapidly until it reaches the maximum level. While it takes approximately fifty minutes for the blood alcohol concentration to reach its peak, it could take up to two hours, depending on several factors.
If the defendant had a rising BAC when they were pulled over, the chemical test results could be inaccurate. The BAC might have risen to above 0.08% during the drunk driving investigation. Moreover, what matters is what the BAC level was when the defendant drove. That means that forms a basis of a valid defense.
If the Minor Dies Due to Your Conduct, You Might Face Murder or Manslaughter Charges
Assuming the worst-case scenario occurs: you operate your vehicle while drunk with a child passenger, and you get involved in an accident, and the child succumbs to the collision. Because of the aggravated circumstances, you might be prosecuted with one of the following, based on either the child endangerment or aggravated DUI:
- Voluntary manslaughter
- Involuntary manslaughter
- DUI murder
- Gross vehicular manslaughter while intoxicated
- Second-degree murder
A conviction on one of the above criminal charges might lead to significant fines and incarceration.
Custody Challenges
If the child is not yours, you'll not experience custody challenges. Nevertheless, if the minor endangered is yours, you might face custody challenges. Child endangerment law does not offer the minor child to be taken from your primary care. Nevertheless, drunk driving with a child should be registered with the CPS (Child Protective Services). If CPS finds it fit, the agency would investigate and cease the primary care from you.
That means you should do all it takes to win your Vehicle Code 23572 VC charges or any other child endangerment charges. It's essential to consult with a lawyer who can fight the agency’s charge and keep the child.
Sometimes, the CPS can choose to conduct their investigations and learn more about the Vehicle Code 23572 VC charges sentencing report. The agency might investigate the minor's home surroundings and background to ensure that the minor is safe. Should this happen, cooperate with their investigators. It stops you from giving CPS your wrong image. However, do not provide many details that they could be used against you or initiate another legal action.
The investigators have a responsibility to:
- Prove whether your home is safe
- Establish whether you are addicted to alcohol or drugs
- Interrogate people around you and see if you have a drunk driving habit
- Investigate whether you are brutal to the child
- Prove whether you meet basic requirements your children need such as education, clothing, shelter, and food
The investigator might ask intrusive questions about your life or drunk driving. Therefore, you need to be careful that you don't get irritated by the questioning. Moreover, they might interrogate your baby privately; do not be defensive.
Hire a criminal defense attorney who has previously handled drunk driving cases involving VC 23572. It can be devastating when the CPS takes hold of the control of the child. A seasoned lawyer knows how it feels and will do all it takes to avoid the likelihood of losing the minor. It can be offering the best legal defense for your drunk driving charge. And if a conviction is unavoidable, they work to make sure you obtain the best possible deal or sentence.
The Court Process in DUI With a Child Passenger Case
An investigation is the initial step of a DUI case. Usually, the DUI investigation can start in either of the following ways:
- You'll be pulled over due to something related to your motor vehicle
- You will be pulled over due to a traffic violation
- You had a car collision, and the police came to the accident scene
Irrespective of how DUI investigations started, the cops will account that after talking to you, they observed:
- An alcoholic beverage odor emitted from the breath
- You showed objective intoxication signs like a flushed face, red eyes, and slurred speech
Then the cops will request you to do a field sobriety test.
What Happens Following Your Arrest?
After the DUI arrest, the cops will take the accused to a police station, jail, or hospital for breath, urine, or blood test to determine the blood alcohol concentration.
Breath test reading is immediately available, while blood samples are taken to a lab for review, so your results will take a few days.
If the defendant refuses to take a chemical test, they will still be arrested for DUI. However, the refusal is punishable by additional penalties such as two (2) days in jail and suspension of a driver's license for a year.
After your arrest, you'll be booked and then released from custody. Depending on your criminal record and your case facts, you might be released on bail or on your own recognizance. Typically, the police should detain you for hours after the arrest before releasing you.
The police will then complete their report about the DUI with a minor arrest and submit it to the prosecutor for analysis. After your case analysis, the prosecutor can either:
- Prosecute you for DUI with a child passenger
- Decline to prosecutor you
Department of Motor Vehicles Hearing Process
After arresting you, the police officer will submit your driving license to the DMV. The Department of Motor Vehicles will suspend the license once the thirty-day temporary driver's license expires. Fortunately, you can request a hearing after the arrest within ten days. The hearing delays the withdrawal of your driving privileges until the hearing's outcome is concluded.
The hearing officer should ask you the following questions before determining whether to withdraw the driving privileges:
- Were you legally arrested?
- Did the police reasonably think that you were drunk driving?
- Was your blood alcohol concentration above 0.08%?
While the hearing is different from the court process, an attorney can still represent you. Your attorney increases the chances of prevailing in the DMV hearing as well as saving the license. The lawyer could cross-examine or subpoena the police about what occurred. The arresting police testimony's transcript could often be instrumental in negotiating the reduction of your charges in the court or preparing the VC 23572 case for trial should negotiations fail. The police expose weaknesses in the prosecutor's case.
The hearings could be conducted over the phone or in-person.
If you prevail in your DMV hearing, the DMV will not suspend your driver's license. Should you lose the hearing, the license suspension becomes effective. It can last between four months and three years, depending on whether you refused to submit a breath or blood test and the number of your previous convictions.
California DUI with a Minor Court Process
Irrespective of whether the defendant loses or wins the DMV hearing, they will still face a court process. The process starts with an arraignment and ends when you're sentenced for or acquitted of the charges.
During the arraignment, the prosecutor will give an offer. The offer is the sentence the prosecution suggests and settles on if the defendant pleads guilty to the alleged crime. Also, arraignment offers you the chance to plead no contest, not guilty, or guilty to the DUI with a minor charge. Should you plead guilty, you'll be convicted, and the case closed.
If the defendant pleads not guilty, the defense attorney should be able to analyze and challenge the prosecutor's evidence like:
- Copies of the police report, and
- Access maintenance record of chemical testing gadget used.
How Pretrial Motions Are Related to a Plea Bargain
While prosecutors in drunk driving charges claim that the most superlative deal is offered during the arraignment as a way to accept liability, that is not always the case.
The pre-trial stage of the court process is when the lawyer investigates the case. The more issues and evidence which favor your case, the greater the likelihood that the prosecution team will dismiss or reduce your charges. Effective methods include the following:
- Running a pretrial motion like a probable cause hearing, motion to suppress hearing, or Pitchess hearing.
- Plea bargain: After your DUI lawyer gathers evidence and conducts a pre-trial motion, they can negotiate for you. When the lawyer outlines the prosecutor's case's weakness, the prosecutor can reduce the VC 23572 charge to a less severe offense like dry reckless or wet reckless or dismiss the charge.
Will You Have a Jury Trial?
While many VC 23572 cases settle before trial, a substantial number of drivers face a jury trial. The trial could be categorized into the following phases:
- Jury selection
- Prosecution's case
- Opening statements
- Sentencing
- Verdict
- Closing statement
- Defense case
The prosecution should persuade all jury members beyond any reasonable doubt of the guilt before sentencing you.
The pros and cons of proceeding to trial depend on your case circumstances. Your lawyer should ensure you understand the facts and can make an informed decision whether the jury trial should be a strategy in your DUI with a passenger under fourteen criminal charges.
Find a DUI Defense Attorney Near Me
Any person convicted of DUI in California faces severe penalties like hefty fines and incarceration. However, if found guilty of DUI with a minor passenger, you might face enhanced penalties. And depending on the case circumstances, the charge might affect your parental rights. If you've been arrested for VC 23572, you should immediately speak with a seasoned attorney from The Los Angeles Criminal Defense Attorney. To book your initial consultation, call us today at 310-564-2605.
