DUI with Child in Vehicle VC 23572

Possible Legal Defenses to VC 23572

If you are accused of driving under the influence (DUI) with a child in the vehicle, you will need to mount an aggressive legal defense to protect your future. Your California DUI attorney can help you explore the most effective defense strategies and choose the best one for your situation. We’ll discuss a few possible defenses to these criminal charges below.

You Are Not Guilty of DUI

Perhaps the most obvious strategy is to focus not on the presence of your child, but rather the underlying DUI offense. There are various ways to defend yourself against a DUI arrest in California, including the following:

• Question the breathalyzer result.
• Question the chemical test result.
• Question the accuracy of a field sobriety test (FST).
• Argue that your bad driving does not constitute evidence of intoxication.
• Argue that your symptoms of intoxication were caused by other factors.
• Argue that the arresting officers did not follow proper protocols.
• Argue that you were mentally alert despite drinking.
• Argue that your arrest was due to health issues.

If you present a successful defense to your DUI charge, you cannot face any further consequences for having your child in the vehicle.

There Was No Child Under 14 in the Vehicle

If you face insurmountable evidence of your intoxication at the time of your offense, you may be able to argue that there was no child under the age of 14 present in your vehicle at the time of the offense. Even if successful, this strategy will not prevent a DUI conviction; however, it can mitigate the enhanced penalties under VC 23572.

You have two choices in this regard: First, you can either show that there was no child of any kind present in your vehicle. The second option is to establish that while a child was present in your child at the time of the offense, they were over the age of 14.

Sometimes, police officers make mistakes. They may assume that a child is under the age of 14 just by looking at them. They may misread the child’s identification. If you can provide a copy of the child’s birth certificate, this might be enough to establish that they were older than 14 at the time of the offense.

There Was No Probable Cause

As with many crimes, the lack of probable cause represents a potentially effective defense strategy after a DUI with a child in the car. Due to the Fourth Amendment, police officers in California are not allowed to detain, arrest, or search you without reasonable suspicion of a criminal offense. A minor traffic offense may allow them to pull you over, and it might even allow them to carry out a Breathalyzer test.

However, searching your vehicle for someone who may be under the age of 14 could prove to be unconstitutional. To initiative the search, police must have clear evidence that you have committed a serious criminal offense – and that the search would likely yield further evidence of criminal activity.

Without any probable cause, a police officer may be unjustified in pulling you over. Therefore, any subsequent evidence that arises after the traffic stop could be inadmissible in court. This might include Breathalyzer test results, FST results, chemical test results, and so on. For example, you may have been driving in a completely safe and lawful manner while obeying the speed limit and all other traffic regulations. In this situation, a police officer cannot simply pull you over on a “hunch” that you may be intoxicated.

In the context of VC 23572, a police officer may also be unjustified in searching your vehicle after an unconstitutional traffic stop. This may prevent them from accurately determining the age of any passengers inside. Rear-tinted windows and reflections may prevent officers from determining the age of occupants with any degree of accuracy.

This may not prove useful if the child is plainly sitting in the passenger seat, however – or if the occupant is clearly an infant. Remember, you and your passengers are under no obligation to provide information to the police upon request (including the ages of passengers), and you have the constitutional right to remain silent. Criminal courts cannot interpret your silence as a sign of guilt.

Comparing VC 23572 to Child Endangerment

PEN 273a defines child endangerment as intentionally causing or allowing children to face dangerous situations. The most important distinction between VC 23572 and child endangerment involves the two different sets of penalties.

In the absence of aggravating factors, a DUI with a child in the vehicle will result in a misdemeanor. On the other hand, child endangerment is a “wobbler” offense, meaning that it may lead to misdemeanor or felony charges.

Misdemeanor Child Endangerment Penalties

If the court prosecutes child endangerment as a misdemeanor, you face a maximum jail sentence of one year. If convicted of felony child endangerment, however, you face a prison sentence of two, four, or six years.

Probation is possible for those convicted of child endangerment. However, the conditions must include a minimum probationary period of 48 months, a protective order against the defendant, child abuse treatment programs, and random alcohol/drug testing.

As you can see, the consequences of child endangerment are much more serious than those for conviction of VC 23572. While even a fourth-offense DUI will only lead to a maximum of 90 days in jail under VC 23572, it is possible to face one year in jail for a lower misdemeanor child endangerment count. In other words, the least serious penalties for child endangerment are more severe than the most serious penalties under VC 23572, which is why an attorney may try to get your child endangerment charge “reduced” to a DUI with child in vehicle.