DUI with Child in Vehicle VC 23572

Parents in California face serious consequences for driving with their children while intoxicated. This can end up facing a range of charges related to both driving under the influence (DUI) and child endangerment.

If you have been accused of this offense, it is important to understand the gravity of the situation. This is one of the most serious driving-related crimes in California, and its penalties are more severe compared to a typical, first-offense DUI. While online research provides a basic overview of DUI with child in the vehicle (VC 23572), a criminal defense lawyer in California can provide more targeted guidance based on your specific situation.

This article will explore the nature of DUI with child charges under California Vehicle Code 23572, including possible legal defenses and potential penalties.

If you’ve been accused of driving under the influence with a child in the vehicle, you’re in a precarious situation. The best way to protect yourself is by speaking with a criminal defense attorney right away. Contact Gressley & Donaldson online to get started.

Defining DUI with a Child Under VC 23572

California Vehicle Code 23572 states that if you are convicted of a DUI with a child of 14 or younger in your vehicle at the time of the offense, you will face additional penalties. According to California law, you commit a DUI if you drive with a blood-alcohol content (BAC) of 0.08 or higher. If you have a commercial driver’s license (CDL), the legal limit is 0.04.

It’s important to understand that DUI with child in car (VC 23572) is not a crime in and of itself, but an enhancement of a DUI crime. In other words, if you get a DUI with a child in your car, you will face more serious consequences compared to a normal DUI. Alternatively, you may be charged with child endangerment as a separate offense.

Consequences Regarding Child Custody

Aside from criminal consequences, a DUI with your child in the vehicle could lead to certain family law issues. If you share custody with the child’s other parent, you may lose custody rights. If you are still together, they could both encounter issues with Child Protective Services (CPS) in California. These issues should be handled by family law attorneys.

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.

Penalties for VC 23572 Conviction

The enhanced penalties under VC 23572 depend on how many prior DUI offenses you have on your record. Prior DUI convictions increase the likelihood of more severe penalties, but even first-time offenses can affect your future. Here’s a breakdown of those penalties:

  • First offense. If you commit a first-offense DUI, you face an additional jail sentence of 48 hours of jail. Even if the court grants you probation for the underlying DUI offense, you must still serve this mandatory two-day jail sentence.
  • Second offense. If you have one prior DUI offense on your record, you face an additional jail sentence of 10 days. Again, you cannot escape this sentence through probation.
  • Third offense. If the underlying DUI is your third offense, you face an additional jail sentence of 30 days and probation will not mitigate this penalty.
  • Fourth offense. A fourth-time DUI will lead to an additional jail sentence of 90 days if you had a child in your vehicle. The court will uphold this sentence regardless of whether it grants probation for the underlying DUI.

Keep in mind that if you are arrested on suspicion of DUI with a child in your vehicle, you can face penalties under either VC 23572 or child endangerment laws—but not both. In terms of severity, the penalties for VC 23572 are typically much less harsh than the punishments for child endangerment.

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.

Offenses Related to VC 23572

Those accused of VC 23572 may face a range of additional potential charges, and these charges may be brought in addition to VC 23572. We will discuss a few of those charges below.

Additional DUI Penalty for Excessive Speed and Reckless Driving Under VC 23582

If you were operating your vehicle at high speeds or with a degree of recklessness, you may face additional DUI penalties under VC 23582. These penalties may apply if you were driving more than 30 mph over the maximum speed limit on a freeway or 20 mph over the speed limit on any other street or highway. You may also face these enhanced penalties if you were driving in a manner that satisfies definitions under Section 23103, which is also known as a “dry reckless.”

This enhanced penalty involves an additional 60-day jail sentence. Even if the court grants you probation or suspends your sentence, you still need to serve this 60-day sentence. For a first conviction, you must also complete a drug/alcohol counseling program. Combined with a first-offense DUI with child in vehicle, this could result in a minimum jail sentence of 62 days.

Enhanced DUI Penalties for Excessive BAC or Test Refusal Under VC 23578 and VC 23577

Refusing a breath or urine test can lead to additional penalties under VC 23577. For a first DUI offense, the penalty for refusal is a one-year license revocation. A first offense may also lead to a mandatory 48-hour jail sentence under certain circumstances. A test refusal after a second DUI offense will result in a mandatory 96-hour jail sentence, and a refusal after a third DUI offense will result in a mandatory 10-day jail sentence. After a fourth DUI offense, a test refusal will result in a mandatory 18-day jail sentence.

If your BAC level is 0.15 or more at the time of your arrest, you may face additional enhanced penalties. While VC 23578 does not specify these enhanced penalties, prosecutors will add a note to your criminal complaint that indicates your excessive level of intoxication. With the additional presence of a child, this can lead to serious penalties, and you may face maximum jail sentences.

Child Endangerment Under Penal Code 273a

Finally, you may face penalties under PC 273a instead of VC 23572, but you cannot be charged with both offenses under California law. The court may elect to pursue more serious penalties under child endangerment laws if your offense was particularly reckless, and the child faced notable and obvious dangers. On the other hand, you are more likely to face penalties under VC 23572 if the child did not face any clear threats due to your driving.

Contact an Experienced DUI Defense Lawyer in California

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If you are facing charges related to DUI with child in vehicle under VC 23572, it’s important to partner with an experienced criminal defense lawyer right away. The most appropriate defense strategy depends entirely on your unique circumstances, and an online article can only provide a basic overview of the relevant laws.

For more targeted and accurate legal guidance, speak with a dedicated criminal defense attorney from Gressley & Donaldson today. We have defended countless DUI defendants, including those charged under VC 23572, and helped them achieve favorable outcomes. Contact our law firm to schedule a consultation today.

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We understand that being accused of a crime is one of the most challenging times of your life. Rely on us to advocate for your rights and to give you the defense you deserve.


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