Drinking and Driving With a Child in the Car

How having minor passengers while driving under the influence can affect penalties and the consequences the driver faces.

Drunk driving carries severe criminal penalties due to the risks it poses to others. In many states, the penalties for a DUI are even more severe if the driver knowingly puts children at risk by operating a vehicle drunk with kids in the car. Driving under the influence (DUI) with child passengers can also lead to child endangerment charges and CPS (child protective services) involvement.

This article covers some of the possible outcomes and consequences of a DUI involving minor passengers.

Minor Passengers

Every state prohibits impaired driving and every state provides for additional penalties for those that transport children whilst under the influence. The basis of the offense is generally standard in that it requires a person to be guilty of DUI and to have a passenger in the vehicle under a certain age. Generally, passengers under the age of 16 or 14 are considered ‘children' and will subject the offender to greater penalties.

The method in which the offense is charged also varies slightly between states. Having a child passenger can elevate the penalties of a DUI or result in child endangerment charges, or both. And many states permit increased penalties and charges for each child that is present.

How Does Having a Child Passenger Affect DUI Penalties?

For a DUI conviction (whether it's a first or subsequent offense), the law normally specifies the minimum and maximum penalties. Typically, these penalties at least include fines, license suspension, and possible jail time. Within these minimum and maximum penalty ranges, the judge typically gets to decide what the convicted driver's penalties will be.

Circumstances Judges Take Into Account in Sentencing

When deciding on penalties, the judge will typically consider mitigating and aggravating factors. If, on balance, the mitigating factors outweigh the aggravating factor, the judge will likely choose penalties that are close to the minimums. On the other hand, if the opposite is true, the convicted motorist might receive penalties that are at the severe end of the spectrum.

Having minor passengers in the vehicle at the time of the DUI offense is generally going to count against the driver as an aggravating factor. So, in cases that involve minor passengers, judges are more likely to impose harsh penalties.

Statutory Aggravating Factors

Most states also have aggravating factors written into the law. In these states, the law sometimes requires judges to impose more severe penalties in DUI cases involving child passengers. For example, some state laws increase the minimum and maximum penalties when a DUI offense involves minor passengers. In some instances, having children in the car can even elevate a DUI from a misdemeanor to a felony.

In many states, these kinds of statutory aggravating factors apply only if the child is younger than a certain age such as 16 or 12 years old.

Is Driving Drunk With a Kid in the Car Child Endangerment?

All states have child endangerment laws. Child endangerment is generally defined as knowingly (or wantonly) placing a child who's in your care in immediate danger. Typically, drunk driving with a child passenger falls within the definition of child endangerment. The laws of some states even explicitly say that operating a vehicle while under the influence with a kid in the car is per se child endangerment.

The parents of the endangered child can also be charged with child endangerment if they knew or should have known that someone else was driving their child while intoxicated.

Depending on the circumstances, child endangerment can be a misdemeanor or felony and, like DUI convictions, carries severe penalties.

Will CPS Find Out About My DUI Arrest?

When a driver is arrested for a DUI with children in the car, there's a pretty good chance the officers will notify CPS. The children might also be held in some sort of protective custody, at least until police or CPS can locate a parent or another responsible adult to take the children.

Following this type of DUI arrest, CPS is likely to open an investigation into the fitness of the parents and the safety of the children. Depending on the findings, the investigation could lead to the parents having to participate in treatment programs, complete educational classes, or even lose custody of their children temporarily.

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