California Vehicle Code section 23572 (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=23572.&lawCode=VEH) prohibits motorists from drunk driving with a child below 14 years riding as a passenger. California law is particularly strict when it comes to matters regarding children and DUI’s. Thus, the penalties for DUI with a passenger under 14 are severe, including hefty fines and lengthy prison terms. You could also face additional charges, a sentence enhancement, and child endangerment charges.
See also Child Endangerment (California Penal Code section 273a: https://codes.findlaw.com/ca/penal-code/pen-sect-273a.html).
Therefore, it is critical that you understand the applicable criminal statute, its elements, penalties, and potential defenses to fight the charge.
Understanding the Offense of DUI with a Passenger Below 14 Years (Vehicle Code § 23572)
An arrest for driving under the influence (a.k.a. driving while intoxicated) means you are suspected of operating a vehicle while under the influence of drugs or alcohol.
See First-Time DUI (Driving Under the Influence) (California Vehicle Code section 23152: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html);
Second DUI (Driving Under the Influence) (California Vehicle Code section 23540: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23540.html); and
DUID -- Driving Under the Influence of a Drug (California Vehicle Code section 23152(f): https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html).
In California, you should not operate a vehicle with a BAC level above the legal limit set forth by the state. Upon conviction, DUI with a Child Below the Age of 14 Years means you will receive a DUI sentence enhancement. The reason is simple: the state believes that by driving under the influence, you are placing the child's life in immediate danger.
See also Child Abuse (California Penal Code section 273d: https://codes.findlaw.com/ca/penal-code/pen-sect-273d.html); and
California Judicial Council Criminal Jury Instructions (“CALCRIM”) Number 823 (“Child Abuse – Misdemeanor -- Pen. Code § 273a(b)): https://www.justia.com/criminal/docs/calcrim/800/823/.
You might also face charges for violating Penal Code section 273a (Child Endangerment).
Not surprisingly, if you have a previous DUI charge, the penalties will likely be further enhanced.
The Stop and the Arrest
When law enforcement officers suspect you are driving while buzzed, drunk, or high, they will obviously pull you over and request that you submit to a BAC test. If the test is conducted on the roadside, it will be a breath test. If it’s conducted at the police station (or, if an injury is involved, at the hospital), it will be a blood test.
Blood tests will reveal the level of alcohol content in your blood, while the breath test shows the level of alcohol present in the air while you breathe. The courts prefer you submit to a blood test rather than the breath test because of their increased credibility and reliability.
In addition, police will request that you submit to a Field Sobriety Test (FST) (https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/sfst_pm_full_manual.pdf).
If you refuse either test, or if you – at least in the opinion of the officer – fail either test, you will then be arrested.
See Refusal to Submit to DUI Chemical Test (California Vehicle Code section 23612: https://www.justia.com/criminal/docs/calcrim/2100/2130/).
The Judicial Process
After the police determine your BAC level and conclude you committed an offense, they will forward the matter to a prosecutor for the filing of formal charges. In L.A. County, that will be either the Los Angeles County District Attorney's Office (DA’s Office) (https://da.lacounty.gov) or the Los Angeles City Attorney's Office (CA’s Office) (https://www.lacityattorney.org).
Once the officers forward the case to the court, the prosecution will determine whether they can prove you are guilty of the DUI charge.
DMV Administrative Hearing
After your DUI arrest, the law enforcement officers will notify the California Department of Motor Vehicles (DMV): https://www.dmv.ca.gov/portal/ about it. The DMV will then send you a letter notifying you that you have ten (10) days to request a DUI Administrative Hearing: https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/administrative-hearings/.
Assuming you or your attorney do so, the DMV will issue you a temporary driver’s license as you await the hearing.
If you prevail at the hearing, the DMW will reinstate your unrestricted driving privileges. If you wish, the DMV can hold the hearing over the phone – that is, assuming your case is minor, as opposed to a more serious charge, such as Vehicular Manslaughter while Intoxicated (California Penal Code section 191.5(b): https://codes.findlaw.com/ca/penal-code/pen-sect-191-5.html).
See also CALCRIM Number 591 (“Vehicular Manslaughter While Intoxicated - Ordinary Negligence -- Pen. Code § 191.5(b)”): https://www.justia.com/criminal/docs/calcrim/500/591/; and
CALCRIM Number 590 (“Gross Vehicular Manslaughter While Intoxicated -- Pen. Code § 191.5(a)”): https://www.justia.com/criminal/docs/calcrim/500/590/.
An adverse outcome for you at the DMV hearing cannot similarly impact the outcome of your court case. However, if you prevail thereat, the outcome can be beneficial for your court proceeding – i.e., your attorney can your hearing victory to support your defense against the criminal charges.
Penalties for Violating Vehicle Code § 23572
When you face a charge for drunk driving with a passenger below the age of 14, you will also -face enhanced penalties. The criminal court will order sentence enhancements under the following circumstances:
First-Time DUI Offender
When you commit DUI for the first time (California Vehicle Code section 23152: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html), the court imposes the following penalties during your conviction:
- Serve jail time for six months;
- Misdemeanor probation for a typical period of three years;
- Compulsory installation of Ignition Interlock Device (I.I.D.): https://www.dmv.ca.gov/portal/driver-education-and-safety/educational-materials/fast-facts/ignition-interlock-devices-ffdl-31/ device for six months;
- Enrollment in a Driving Under the Influence (DUI) Program: https://www.dhcs.ca.gov/individuals/Pages/DUI.aspx for a period between three and nine months;
- License suspension for up to four months; and
- Additional two days in jail for operating a vehicle while under the influence of alcohol or drugs with a minor on board.
Second-Time DUI Offender
In California, you face a Second-Time DUI (California Vehicle Code section 23540: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23540.html) charge when you commit a DUI crime within ten (10) years from the first conviction.
When the police charge you with a second-time DUI offense, you face the following penalties:
- Suspension of driver’s license for twenty-four (24) months;
- Serving misdemeanor probation for up to five (5) years;
- Suspension of driver's license for two (2) years;
- A jail term for up to one (1) year;
- Compulsory installation of an IID device;
- Mandatory attendance of DUI classes for thirty (30) months; and
- An extra ten days in jail for violating V.C. § 23572.
See also CALCRIM Number 2125 (“Driving Under the Influence or with 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions -- Veh. Code §§ 23550, 23550.5 & 23566”): https://www.justia.com/criminal/docs/calcrim/2100/2125/.
Third-Time DUI Offender
You commit this crime when your third DUI offense occurs within ten years from your first DUI conviction. The penalties for the crime are:
- Five years of misdemeanor probation;
- Compulsory installation of an IID device;
- One-year jail term;
- Compulsory DUI classes;
- License suspension for two years; and
- You will remain in jail for one additional month for violating V.C. § 23572.
Fourth-Time DUI Offender
In California, a fourth DUI arrest within ten years of the first conviction will be charged as a felony offense. The court will impose the following penalties upon conviction:
- State imprisonment for 36 months;
- Five years license suspension;
- A mandatory DUI school class for a period between 18 and 30 months; and
- An additional 90 days in jail for violating V.C. § 23572.
DUI Plea Bargains
Sometimes you might find it difficult to fight your charge, especially when the prosecutor’s evidence is strong. If this happens in your case, your attorney may seek a plea bargain.
The plea bargain will not eliminate the sentence for violating V.C. § 23572. When you accept the plea bargain, it means you plead guilty to the crime. In return, the criminal court offers you reduced punishment and penalties. The plea bargain comes with numerous possible benefits, including:
- Lower fines;
- DMV will not suspend your driver's license; and
- Minimal jail time.
The possible charges the prosecution can offer – and that the court can accept -- as a plea bargain include:
Wet Reckless Charge
The Wet Reckless (California Vehicle Code section 23103: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=23103) charge involves you pleading guilty or nolo contendere (no contest) to reckless driving with a notation in your criminal record that alcohol or drugs was/were involved.
Although a wet reckless charge is a good conviction option, the court considers you a repeat offender when you commit another DUI offense within 10 years.
See also CALCRIM Number 2200 (“Reckless Driving -- Veh. Code § 23103(a) & (b)”): https://www.justia.com/criminal/docs/calcrim/2100/2200/.
Dry Reckless Charge
A dry reckless charge is another available bargain option. Unlike when you’re charged with wet recklessness, your criminal record will not indicate drugs or alcohol were involved therein. Thus, the court considers this crime to be a misdemeanor driving offense and not a DUI offense.
What Happens if the Minor Dies Due to Your DUI Conduct?
You’d be hard pressed to find a worse DUI scenario that you operating a car under the influence of alcohol or drugs and causing an accident that results in the death of the child passenger. In that event, you could face conviction under any of the following felony statutes:
- DUI Murder (a.k.a. "Watson Murder" -- California Penal Code section 187: https://codes.findlaw.com/ca/penal-code/pen-sect-187.html) (see also People v. Watson (1981) 30 Cal.3d 290 at: https://caselaw.findlaw.com/ca-court-of-appeal/1838207.html);
- Involuntary Manslaughter (California Penal Code section 192(b): https://codes.findlaw.com/ca/penal-code/pen-sect-192.html./);
- Voluntary Manslaughter (Penal Code section 192(a));
- Second-Degree Murder (P.C. § 187); or
- Gross Vehicular Manslaughter while Intoxicated (California Penal Code section 191.5(a): https://codes.findlaw.com/ca/penal-code/pen-sect-191-5.html).
See also CALCRIM Number 520 (“First or Second-Degree Murder with Malice Aforethought -- Pen. Code § 187”): https://www.justia.com/criminal/docs/calcrim/500/520/; and
CALCRIM Number 590 (“Gross Vehicular Manslaughter while Intoxicated -- Pen. Code § 191.5(a)”): https://www.justia.com/criminal/docs/calcrim/500/590/.
Child Custody Challenges
A driving drunk with a minor under 14 arrest – even if you have yet to be convicted thereof – will obviously complicate any ongoing custody case you have involving that child. If the family law judge determines that you pose a continuing danger to the child, he or she can be temporarily taken from you pending an investigation by Child Protective Services (CPS): https://www.cdss.ca.gov/reporting/report-abuse/child-protective-services or the Los Angeles County Department of Children and Family Services (DCFS): https://dcfs.lacounty.gov. (You could, however, see your child on a restricted basis thereafter, such as supervised visits in the presence of a state or county employee of one of these agencies.)
As part of its investigation, the agency will obviously look closely into the merit of your charges and potential penalties. The agency can also conduct background searches and unannounced home visits to ensure the minor is safe. When this happens, you should always retain an attorney experienced with heading off these agency investigations, which could obviously have dire consequences for you and your family. Indeed, the investigator will immediately turn over any incriminating evidence they uncover to the detective assigned to your case.
The duties of these agency investigators include:
- Determining whether the child's home is safe;
- Investigate whether you pose a threat to the minor;
- Investigate whether you are alcohol or drug-addicted; and
- Investigate whether you provide the basic requirements for your child, including food, education, shelter, clothing, and medical care.
The law allows the investigators to ask you intrusive questions concerning your life but, again, you have the right to be represented by an attorney. In our experience, nothing good ever comes from the subject of the investigation communicating directly with the investigator. On the contrary, from whatever you say can seriously jeopardize your defense in the criminal matter.
Legal Defenses to Fight V.C. § 23572 Charges
When facing these types of charges, you’ll have several legal strategies which your attorney can employ to fight on your behalf. These defenses can result in your charges being entirely dropped or at least reduced to a significant degree. Some of the strategies your attorney may use include:
Your Symptoms of Intoxication Did Not Necessarily Indicate Drunk Driving
You can challenge the prosecution by claiming you were not intoxicated. The arresting officer will likely testify that you had slurred speech, watery or bloodshot eyes, an alcoholic odor from your breath, or an unstable & flushed face. During a DUI investigation, the police will obviously be looking for all these indications.
However, their presence does not automatically mean you were driving while intoxicated. For example, your defense lawyer may be able to successfully argue that your symptoms were actually due to eye irritation, allergies, fatigue, or illness.
You Were Not Actually Driving
The prosecutor must prove beyond a reasonable doubt that you were operating a car while intoxicated. You may be able to use this defense to beat your charges if no one sees you driving. Law enforcement officers may not have seen you driving either.
You only face the charges for V.C. § 23572 when you drive a car of your volition. For example, following an accident (where nobody saw you driving the car), the law enforcement officer finds you sitting in the parked vehicle. It may be difficult for the prosecutor to prove you were driving the car.
For example, one of our clients had been arrested for being a felon on parole in possession of a semi-automatic handgun and ammunition and thus was facing eight years in prison. The police approached him because they claimed to have seen him drinking beer and smoking marijuana at an intersection in his car.
But at his preliminary hearing, we were able to prove that even though he had been doing both, because he had been parked (and not driving), those supposed offenses were not even infractions and, therefore, the police had no right to approach him, much less search his car. We got the entire case dismissed and the client went home that same day.
Poor Driving is Different from Driving While Intoxicated
The prosecution will emphasize your driving pattern in a DUI with a minor case. The arresting officer will testify you drove in a way that was consistent with that of an inebriated driver, such as weaving within the lane or speeding.
You may use this defense by arguing that momentarily poor driving resulted from you adjusting the stereo, eating, talking to your passenger, drinking, tending to a baby, texting, talking on your cell phone, or picking up something that fell on the floor.
Thus, your defense lawyer can thereby dispute the evidence brought against you by claiming your driving pattern does not necessarily mean you were driving while intoxicated.
Law Enforcement Officers Did Not Adhere to Title 17 of the California Code of Regulations
Title 17 specifies how law enforcement officers must conduct DUI chemical tests. The regulations include:
- The officer should observe you for fifteen minutes;
- Proper administration of the chemical test;
- Regular calibration of testing devices;
- Proper training for the person administering the chemical test;
- Proper collection and handling of blood and urine samples; and
- Reading the Miranda rights after arresting you.
For DUI cases in California, the police want to Abide by all title 17 regulations. When law enforcement officers fail to adhere to the above regulations, the prosecutor cannot use your test as evidence in court. Challenging the defense may result in your case dismissal or lesser charges.
Lack of Probable Cause for Your DUI Stop
Before the police stop you or arrest you for drunk driving, they must have a reasonable belief you committed a crime. Any evidence obtained should be dismissed if the police do not reasonably believe you did so. When the evidence is suppressed, the police will not use it against you in a DUI with a child prosecution.
See Motion to Suppress Evidence (California Penal Code section 1538.5: https://codes.findlaw.com/ca/penal-code/pen-sect-1538-5.html); and
Motion to Dismiss (California Penal Code section 995: https://codes.findlaw.com/ca/penal-code/pen-sect-995.html).
Inaccurate Field Sobriety Tests
Your attorney may be able to challenge the accuracy of the test results if the prosecutor includes them as evidence against you. The FST’s are often inaccurate and may not be reliable in determining whether you were intoxicated. For example, your balance may have been affected by your clothing or fatigue and not intoxication.
Indeed, one of our client’s DUI cases was dismissed because he was a bodybuilder who had blasted his quadricep muscles at the gym earlier that day doing deep power squats and, as a result, failed the walk-in-a-straight line and balance-on-one-leg FST’s.
Again, the attorney may argue it is impossible to walk straight on uneven ground. When your attorney challenges the test results' accuracy, the prosecutor may lack sufficient evidence to charge you with DUI.
In California, driving under the influence of drugs or alcohol with a minor on board is not an exclusive charge. It means the court can charge you with related offenses, each with distinct elements and penalties. These offenses include:
- Driving Under the Influence (DUI) (California Vehicle Code section 23152: https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html)
This statute prohibits drivers from operating vehicles with a BAC level above the legal limit. Similarly, you can face a DUI charge when you drive your car with a BAC level above 0.08% pursuant to Vehicle Code section 23152(b).
When you violate the law with a minor aged below 14 years, you become culpable for violating V.C. § 23572.
- Child Endangerment (California Penal Code section 273a: https://codes.findlaw.com/ca/penal-code/pen-sect-273a.html)
When you willfully endanger a child's life, you will face charges for child endangerment. Although the charge does not directly relate to DUI, the court can also charge you with child endangerment under California P.C. §273a in addition to V.C. § 23572 when you drive a car while under the influence with a child passenger.