While Driving While Under the Influence is a criminal offense on its own, having children in the vehicle is an aggravating factor that will increase the penalties on any DUI conviction.
Under California Vehicle Code Section 23572, a sentencing enhancement will apply to those who were driving under the influence and who had a child under the age of 14 in the vehicle at the time the impaired driving occurred. Factors such as the driver's level of intoxication and driving conduct would have no bearing on whether or not the "child endangerment" enhancement would be applicable, although a prosecutor may consider these factors when deciding whether or not to file the enhancement. The Child Endangerment enhancement under Vehicle Code Section 23572 is not a separate criminal offense, but can only enhance a Driving Under the Influence conviction under California Vehicle Code Sections 23152(a), (b) and (e). If the DUI charge is dismissed or if the defendant is acquitted of this offense, the child endangerment allegation would no longer apply. Additionally, if the defendant pleads to a reduced charge such as wet reckless or exhibition of speed, the child endangerment enhancement would similarly be inapplicable.
If the child endangerment allegation is sustained, the following penalties will be assessed on top of whatever sentence was imposed for the underlying DUI conviction. 48 hours in jail will be assessed on a defendant's first DUI conviction. 10 additional days in jail will be added to the defendant's sentence for a 23572 allegation on a second DUI conviction in ten years. The child endangerment enhancement will add another 30 days on top of a DUI defendant's third conviction within 10 years. And for defendants who have been convicted of a fourth DUI within ten years as a misdemeanor, the Vehicle Code 23572 enhancement will impose an additional 90 days in jail. If the defendant is convicted of a felony DUI, the Vehicle Code 23572 enhancement would not apply (although the jail and/or prison time imposed would be greater).
Child Endangerment, DUI or Both
In addition to the DUI enhancement, the defendant may be charged separately with child endangerment under California Penal Code Section 273(a). This offense is what is known as a "wobbler" which can be charged as either a felony or a misdemeanor. Thus someone caught driving drunk with a minor child in his or her vehicle can be charged with Driving Under the Influence, Child Endangerment, or both. Unlike the Vehicle Code 23572 enhancement, child endangerment under Penal Code Section 273(a) can apply when the minor passenger is under the age of 18, not just under 14. PC ? 273(a) makes it illegal to willfully place a child in a situation in which his or her health and welfare is put at risk. Courts have concluded that DUI offenses with minor passengers qualify as child endangerment under Section 273(a). Someone convicted of child endangerment as a misdemeanor can be sentenced to serve up to a year in jail. A felony conviction for this offense can send a defendant to prison for up to six years.
Crime of Moral Turpitude
Unlike most first time DUI offenses which typically do not pose immigration problems for non-citizens, child endangerment is considered a "crime of moral turpitude" that could result in a defendant being deported or denied naturalization. This would be true for both the Vehicle Code Section 23572 enhancement as well as the Penal Code Section 273(a) charge. Any non-citizen charged with this offense should discuss their situation with both a criminal defense attorney and an immigration lawyer, as the collateral consequences can be potentially devastating.
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