DUI Child Endangerment pursuant to Penal Code § 273a(a) is considered a “wobbler”, punishable by up to one year in the county jail, or two, four, or six years in state prison. Penal Code § 273a(b) is a misdemeanor, punishable by up to one year in county jail.
When probation is granted on a Penal Code § 273a conviction, there are minimum mandatory probation terms set forth in Penal Code § 273a(c), though some or all of these conditions may be waived in the interests of justice under Penal Code § 273a(c)(5).
Vehicle Code § 23572 (formerly CVC § 23194) provides for a consecutive sentence enhancement in CVC § 23152 cases where a minor under the age of 14 was a passenger in the vehicle at the time of the offense.
The enhancement must be pled and proven, (or admitted), and because the Legislature specifies in the Vehicle Code when a sentence enhancement may be multiplied for each victim (e.g., CVC § 23558 specifies a one-year enhancement for each injured victim up to a maximum of three years), the fact that it did not do so in CVC § 23572 makes it presumptively limited under statutory rules of construction and the Rule of Lenity to a single enhancement no matter how many persons under the age of 14 were passengers.
No portion of the enhancement may be stayed and it shall be imposed whether probation is granted or not.
The following sanctions typically apply as a minimum and most come with the additional requirement of a 52-week or 1 year Parenting Class to teach such offenders about the perils of drinking and driving with children in the vehicle:
First Offense – punishable under CVC § 23536 (includes CVC § 23538): 48 hours jail (continuous custody)
Second Offense – punishable under CVC § 23540 (includes CVC § 23542): 10 days county jail
Third Offense – punishable under CVC § 23546 (includes CVC § 23548):30 days county jail
Fourth Offense or More – punishable under CVC § 23550 (includes CVC § 23552): 90 days county jail
NOTE: None of these enhancements apply where the defendant is also convicted of a violation of P.C. § 273(a) arising out of the same incident; however, since Penal Code § 273(a) requires additional proof that the defendant had any responsibility for the child’s well-being, the mere presence of a child or children is not sufficient for a Penal Code § 273(a) conviction as it is with the CVC § 23572 enhancement.
NOTE: Some police agencies will file a report with the California Department of Justice under the Child Abuse and Neglect Reporting Act, which places the defendant in the California DOJ’s Child Abuse Central Index. (See Penal Code §§ 11164 et seq.) What this essentially means is that your DUI attorney must also know how to do with Child Protective Services (C.P.S.) in the event such a reporting were to occur as it often does.
Occasionally setting forth statutory provisions can be helpful to understanding the laws and punishments set forth above; therefore, two statutory provisions are provided below for ease of reference:
California Vehicle Code 23572(a): If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed: (1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed. (2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed. (3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed. (4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed. (b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven. (c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident."
Penal Code 273a(a): Any person who, under circumstances or conditions likely to produce great bodily harm or death [which includes violating Vehicle Code 23152(b) driving with a BAC of 0.08% or greater], willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."
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