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Family Neighborhood BBQ Turns to "Child Endangerment" as Los Angeles DUI with Kids in the Car: A Costly and Dangerous Decision

Posted by Floyd, Skeren & Kelly, LLP | Mar 15, 2013 | 0 Comments

DUI is truly a universal crime. It can happen to anyone: white collar, blue collar or no collar.  Here we explain another enhancement that could happen to anyone. California Vehicle Code section 23572 sets out additional penalties for what is commonly called "child endangerment."

The phrase "child endangerment" makes this enhancement seem extreme or rare but think about a family returning from dinner at a restaurant or a neighborhood BBQ. Let's say the dad had two beers at dinner and then drives the family home. What if he gets pulled over for a traffic violation and the officer asks him if he's had anything to drink that night? Any contact with a police officer where the driver admits to drinking any amount of alcohol will absolutely turn into a DUI investigation.  A fun family dinner can turn into a nightmare just that quickly.

So what does this enhancement do? It adds to the punishment when someone is found to have committed DUI while "a minor under the age of 14 was a passenger in the vehicle at the time of the offense." Like all enhancements, the prosecution would have to charge someone with child endangerment and prove it at trial. The punishment varies according to how many DUI or DUI-related priors a person has.  For a first DUI offense, it adds 48 continuous hours in jail. If the child endangerment DUI is someone's second DUI offense, 10 days in county jail will be added to the sentence. Third offense? Add 30 days in county jail. For someone's fourth offense or more, the enhancement increases the sentence by 90 days in county jail. A parent might not be able to be away from their kids for even 48 hours.  This enhancement has the potential to be devastating to a family.

There are a couple other considerations that this enhancement brings up.  First, what happens if there is more than one child in the car when a driver is arrested on suspicion of DUI?  Is there a separate enhancement for each child?  Short answer, no.  There is only one enhancement no matter how many children are in the car. (The longer answer involves some technical aspects of statutory interpretation that most people don't need to know and are really only interesting to nerdy lawyers.)

A final consideration is how this enhancement overlaps with the more serious charge of a violation of California Penal Code section 273(a), criminal child endangerment. Section 273(a) is a wobbler which means it can be either a felony or a misdemeanor. A person can be charged with both (1) PC 273 and (2) VC 23152 with the 23572 enhancement.A person can only be convicted of either PC 273 or the DUI child endangerment enhancement, not both. But it's important to know that even if you are arrested for DUI and the enhancement, the prosecutor can still charge you with a felony if they want to. The prosecutor will most likely decide to charge one or the other based on factors including the driver's BAC, dangerous driving and whether the child was buckled properly or in a car seat.

Like we mentioned at the beginning of this piece, this could happen to anyone. Someone can get arrested for DUI with a child endangerment enhancement on the way home from their child's birthday party at Chuck E. Cheese (yes, they serve beer at Chuck E. Cheese). Do you know what to do if it happens to you?

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