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DUI with a Passenger Under 14 Years of Age – Child Endangerment

The penalties mandated by California law for a DUI conviction are directly related to a number of aggravating factors, including whether or not there was a passenger in the car, and the age of that passenger.  If you are arrested for a DUI and have a child in the vehicle that is under 14 years of age, you may also be charged with “child endangerment” (VC 34572). When determining your sentence, the courts will attempt to answer two questions.

  1. Were you in physical control of a motor vehicle while under the influence?
  2. Was there a child in the vehicle at the time of the arrest that was under the age of 14?

California Penal Code 273(a) penalizes an individual who willfully places a child under 14 in a situation that presents imminent risk to their health and/or welfare. This includes driving under the influence with a child 14 years of age of younger in the car. This additional offense can be charged as either a misdemeanor or a felony depending on the specific circumstances.

It is important to have an experienced legal team advise and defend you if you are charged with a DUI and Child Endangerment.  Our team has had success reducing, or eliminating, Child Endangerment charges.  

If you prevail in your DUI case, the court cannot impose the child endangerment penalty. 

Most people don’t realize there are actually multiple ways you can be guilty of a DUI in California.  To be convicted, the prosecutor will have to prove one of the following beyond a reasonable doubt”

  1. You had a blood alcohol concentration (BAC) of at lest .08% while operating a motor vehicle;
  2. You were under the influence of alcohol while operating a motor vehicle; or
  3. You were under the influence of drugs while operating a motor vehicle.

Note the distinction between points 1 and 2.  Many people assume that they need a BAC of .08% to be guilty of DUI.  This is actually incorrect.  Even if your BAC is under the legal limit, if your driving ability is impaired because of drugs/alcohol, you will be subject to a DUI conviction.  To prove “impairment” the prosecution will have to show that, because of alcohol, you were unable to drive as a reasonable sober driver would under the same circumstances.  If your BAC is over .08%, the law assumes that your driving was impaired.

As you probably know, it is the prosecution who bears the burden of proving that you fall into one of these three categories.  This presents a number of opportunities for us to poke holes in the prosecution’s case.  If they cannot show, beyond a reasonable doubt, that you violated the law, the charges against you will be dismissed.  Our attorneys have experience effectively arguing a number of DUI defenses.  These include the following:

False Positive Readings

In some cases, the testing equipment simply does not work properly.  This can lead to an inaccurate BAC result.  The accuracy of breath test results has been questioned for years.  Additionally, a number of factors can lead to “mouth alcohol”.  A simple burp, or dental procedure, can leave more alcohol in the mouth, and produce a false positive reading.  Diet and health conditions can also affect the reading.  

Rising Blood Alcohol

In some cases, your BAC can actually be higher at the time it is tested, than it was when you were driving.  This may occur if you were arrested very shortly after you consumed alcohol.

Lack of Probable Cause

As discussed above, the police need a reason to stop your vehicle, and to to conduct a DUI test.  The police must be able to point to “articulable facts” that suggest you were under the influence before making you take a field sobriety, or breath test.

Failure to Read Miranda Rights

A DUI arrest is often seen as somewhat of a Miranda loophole.  Even so, if you are questioned after you are arrested, you must be read Miranda rights.  If you are not, evidence obtained from the questioning should be suppressed.

Illegal DUI Checkpoint

When the police conduct a DUI Checkpoint, there are a number of procedural requirements they must adhere to.  If they conduct an invalid checkpoint, the evidence against you can be suppressed.

Title 17 Violation

California has strict requirements regarding how breath and blood samples should be collected, stored, and analyzed.  If these are not adhered to, the sample may be inadmissible. 

Hiring an attorney who knows how, and when, to make these arguments will give you the best chance of reaching a favorable result.  Contact one of our attorneys today, you we can begin building your defense.  

If we negotiate your case down to a "wet reckless" or “dry reckless”, the court cannot impose the child endangerment penalty. 

Depending on the strength of the evidence against you, your attorney may be able to help you secure a plea bargain. A plea bargain is a negotiated settlement that you and the prosecutor agree on. If a plea bargain is offered, you will know the sentence you are going to receive before your plea. Accepting a plea bargain can often be extremely advantageous, and lead to less severe punishments. Our skilled attorneys know how to evaluate your specific case and can advise you when accepting an offered plea bargain is in your best interest.  If you do accept a plead down to a wet reckless or dry reckless, you will not be subject to the child endangerment penalties.   

Enhanced Penalties

If the court finds you guilty of a DUI as well as in violation of the California Child Endangerment Law, you will face penalties for each violation. These penalties are dependent on your criminal DUI history.

DUI Penalties        

  • If it is your first DUI conviction, the court may add 48 hours to your DUI sentence.
  • If it is your second DUI conviction, the court may add 10 days to your DUI sentence.
  • If it is your third DUI conviction, the court may add 30 days to your DUI sentence or a subsequent misdemeanor DUI conviction.
  • If it is your fourth DUI conviction, the court may add 90 days to your DUI sentence or a subsequent misdemeanor DUI conviction.

Prior convictions that will affect your case are only those within a 10-year period before the arrest in question. DUIs are misdemeanor unless there is great injury or death caused. If you receive your fourth DUI conviction it can be a "wobbler" and prosecutors can charge the wobbler as a misdemeanor or felony.

Child Endangerment Penalties

California child endangerment law, also known as Penal Code 273(a) PC allows someone to be charged with child endangerment regardless of whether the DUI is filed as a misdemeanor or felony or the age of the minor passenger.

If someone is intoxicated and drives with a child under 14 years old, they can be charged with a DUI sentence enhancement, or child engagement, or both.

If you are convicted of child endangerment, you can face one to six years in the California state prison, depending on if you are charged with a misdemeanor or felony.

In instances where you are charged with a felony, you will receive a "strike" on your record. This can be very serious because any other felony you were convicted of in the past, or are convicted of in the future will be considered towards the three-strike law. If you are charged with two strikes, by law, your sentence will be twice the term. If you were to accumulate three strikes, the mandatory minimum sentence is 25 years to life in California state prison.

Child endangerment charges with DUI charges are taken very seriously by the courts. Our attorneys are specifically trained and exclusively handle these cases in San Diego and Orange County.

To be guilty of Child Endangerment under Penal Code 273a, the Prosecutor must prove one of the following beyond a reasonable doubt:

  1. You willfully caused, or permitted, a child in your custody to be injured.
  2. You willfully caused, or permitted, a child in your custody to be in a situation where they could be injured.
  3. You caused a child in your custody to suffer unreasonable mental or physical pain.

It is important to understand that California Penal Code 273a PC does not require the child to sustain an actual injury in order for you to be convicted. For this reason, it is very important that you have a legal team experienced experienced in handling Child Endangerment cases. Without the help of a skilled legal team, you run the risk of being wrongly prosecuted for Child Endangerment.

Further, notice that the Child Endangerment law requires that the defendant act willfully, or willingly.  In essence, this means that the prosecutor must show that your conduct was intentional.  If your conduct was not intentional, you may have a valid defense. Consider the following example:

Dave is at a children’s birthday party with his son Sam.  During the party, Dave drinks what he believes to be non-alcoholic punch.  In actuality, the punch has been spiked.  After the party, Dave leaves in his car, with his son Sam.  On the way home, Dave is stopped for suspicion of driving under the influence.  Dave fails a breath test, and charged with DUI and Child Endangerment.  At trial, Dave’s attorney argues that Dave was involuntarily intoxicated.  Because Dave was not aware of his intoxicated, he could not have understood that he was placing Sam at risk.  As such, he could not have willfully placed him in a situation where he might be injured, and the charges against him should be dismissed. 

While cases of involuntary intoxication are rare, this example does a good job of illustrating the mental state required for a Child Endangerment charge.       

Common examples of Child Endangerment that result in PC 273a charges include:

  • Failure to get medical treatment for a sick child.
  • Leaving a child around loaded guns, knives, or weapons in a home.
  • Leaving a child with a babysitter, if you know they have been abusive towards children.

Our experienced team can help you prepare a defense for your Child Endangerment case. Our attorneys have years of experience investigating and successfully defending these types of cases. During your consultation we will explore a number defense options with you.

Common Child Endangerment Defenses

Our experienced team has had success arguing several Child Endangerment defenses.  Note that not most of these defenses would not be applicable in a Child Endangerment case resulting from a DUI incident.  Usually, the best way to defend against a DUI Child Endangerment charge is to attack the DUI itself. 

You did not act willfully

As discussed in the example above, willfulness is one of the elements the prosecution must prove in a Child Endangerment case.  To be guilty, you must willfully place the child in harm’s way.  Even great parents cannot protect their children perfectly, 100% of the time.  Sometimes children place themselves in dangerous situations.  If you acted reasonably, and were not aware of the dangerous situation, you should not be found to have acted willfully.

Disciplining your child

If you are reasonably disciplining your child, you should not be found guilty of Child Endangerment.   California allows “reasonable” corporal punishment.  For example, the common spanking of your child should not lead to a Child Endangerment Conviction.      

Wrongful Arrests and False Accusations

These mistakes are actually fairly common, as it is easy to assume that the parent is the one responsible.  However, wrongful arrests can occur as the result of the child either intentionally or unintentionally exaggerating the facts.  Similarly, in some cases, spouses, ex-spouses, or some other third party may have motive to blame the incident on the parent.  These types of false accusations tend to show up during divorce proceedings. 

If you have been charged with a DUI and/or child endangerment, our attorneys can help you. Call us for a FREE consultation and we can begin to discreetly and respectfully investigate your case. Our attorneys are specifically trained and exclusively handle these types of cases in San Diego and Orange County.

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