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DUI with a Passenger under Age 14 – What Happens?
In our experience, there are few DUI’s wherein our client is stopped with any passengers, but when there is or are passengers, they are usually adults. After all, most DUI arrests take place after dark, often very early in the morning when a bar closes. Consequently, it is unusual for any children under age 14 to be in the car with our client.
However, being DUI with a passenger under age 14 is something our state legislature has recognized as being especially worthy of enhanced punishment because, perhaps, it shows a more serious carelessness. Vehicle Code § 23572 codifies this legislative consensus.
In a Nutshell: If one is convicted of DUI with a child under age 14 as a passenger and it is first time DUI, there is a mandatory 48 hour county jail sentence enhancement. On a second such conviction, it is a mandatory ten day county jail enhancement. On a third such conviction, 30 days in jail is added.
It merits mention that this is a distinct offense from child endangerment (Penal Code § 273a), which can also be alleged.
If one is DUI and the complaint alleges both DUI (a violation of Vehicle Code § 23152 or § 23153) and DUI with a passenger under the age of 14, the punishment is enhanced. If the offense is the driver’s first DUI in the last ten years, the driver faces a mandatory minimum of 48 hours in county jail.
This punishment cannot be stayed by the judge and this punishment is mandatory and in addition to any other punishment even if probation is not granted. As the reader may know, a defendant can resolve a first-time DUI without probation by serving between 96 hours and six months in jail and pay a fine between $390 and $1,000 (defendant then separately must comply with any alcohol awareness class required by the DMV if the defendant wishes to continue driving).
If the DUI is the driver’s second DUI within ten years (a violation of Vehicle Code § 23540), the driver faces a mandatory minimum of ten days in county jail in addition to the 96 hours minimum the driver faces as a minimum second-time DUI punishment. This punishment also cannot be stayed by the judge.
Metro CourthouseThis punishment is mandatory and in addition to any other punishment even if probation is not granted. As the reader may know, a defendant can resolve a second-time DUI without probation by serving between 90 days and one year in county jail and pay a fine between $390 and $1,000 (defendant then separately must comply with any alcohol awareness class required by the DMV if the defendant wishes to continue driving).
If the DUI is the driver’s third DUI within ten years (a violation of Vehicle Code § 23546), then the driver faces a minimum of 30 days in county jail in addition to the minimum 120 days that the driver would face in county jail.
The punishment cannot be stayed by the judge. It is mandatory and in addition to any other punishment even if probation is not granted.
As the reader may know, a defendant can resolve a third-time DUI without probation by serving between 120 days and one year in county jail and pay a fine between $390 and $1,000 (defendant then separately must comply with any alcohol awareness class required by the DMV if the defendant wishes to continue driving).
On a fourth or subsequent DUI within ten years (only if a misdemeanor), or if the driver is categorized as a habitual traffic offender, the driver faces a minimum of 90 days in county jail if found DUI with a child under age 14 in his or her car. Such punishment cannot be stayed by the judge and it is mandatory.
It is in addition to any other punishment even if probation is not granted. As the reader may know, a fourth-time DUI can be resolved without probation by defendant serving 16 months, two years or three years in state prison (or 180 days to 1 year in county jail), plus paying a court fine of between $390 to $1,000.
It merits mention that this sentencing enhancement, while it cannot be stayed by the judge, can be stricken by the prosecutor or the prosecutor may permit the driver to resolve the case as a “wet reckless” (Vehicle Code § 23103 pursuant to § 23103.5), which then allows the driver to avoid the extra penalty that would be otherwise mandatory under Vehicle Code § 23572. The reader of this article should be reminded that a second-time DUI can be resolved as a wet reckless, or even a third-time DUI can be resolved this way. We mention this because we have resolved second-time and third-time DUI’s as a wet reckless, which some people incorrectly believe is limited to only first-time DUI’s.
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