What Happens If You Are Arrested for a DUI with Children in the Car?

Child endangerment charges and DUI penalty enhancements for driving under the influence with kids in your vehicle.

By , Attorney · University of San Francisco School of Law

Being arrested for a DUI with children in the car can lead to child endangerment charges, more severe penalties on the DUI charge, and having to deal with child protective services (CPS).

How Having a Child Passenger Can Affect DUI Penalties

State DUI laws specify the minimum and maximum penalties for a DUI conviction. Typically, the penalties for any DUI conviction include fines, license suspension, and possible jail time. Having a minor passenger while driving under the influence can increase DUI penalties a number of different ways.

DUI Aggravating Factors

The laws of some states list "aggravating" factors that, if present, increase the possible penalties for a DUI. Having a minor passenger in the car at the time of a DUI offense is an aggravating factor in many states.

For instance, in Pennsylvania, a first offender normally faces 72 hours to six months in jail, $1,000 to $5,000 in fines, and a 12-month license suspension. But if a first-offense DUI involves a minor passenger, the convicted driver faces an additional $1,000 fine (minimum) and 100 hours of community services, up to five years in jail, and an 18-month license suspension.

It's a similar story in the District of Columbia. Drivers who are caught operating a vehicle under the influence with passengers who are younger than 16 years old face $500 to $1,000 in fines and a mandatory five days in jail for each minor passenger. These penalties are in addition to the normal fines and jail time for a DUI conviction.

Plea Bargaining and Sentencing

Even in states where the DUI laws don't specifically make child passengers an aggravating factor, having kids in the car at the time of a DUI offense can affect the penalties the driver faces.

Most DUI cases resolve through plea bargaining with the prosecution. In other words, the defendant agrees to plead guilty or no contest to the DUI charge in exchange for the prosecution consenting to penalties that are less severe than those that could result from a conviction at trial. But when a case involves aggravating factors like minor passengers, prosecutors are typically less willing to offer good plea deals. As a result, the defendants in these types of cases who want to enter a plea bargain rather than go to trial usually end up with harsher penalties than defendants with cases that don't involve aggravating factors.

For defendants who are convicted at trial, the judge determines the penalties within the limits set by law. Judges tend to come down hard on defendants who drive drunk with kids in the car. In other words, defendants in this situation probably can't expect favorable treatment from the judge when it comes to sentencing.

DUIs and Child Endangerment Charges

Child endangerment laws differ by state. But generally, these laws make it a crime for an adult who's in charge of a minor to knowingly (or with gross negligence) put that child in harm's way. Transporting children in your car while you're drunk or on drugs fits the bill in most instances.

Some states even have child endangerment laws that are specific to driving under the influence with kids in the car. For instance, in Massachusetts, drivers who are arrested for an OUI ("operating under the influence") with children younger than 14 years old in the vehicle can be charged with child endangerment.

Child endangerment charges are separate from DUI charges. In other words, a driver who's charged with both offenses can be convicted and punished for two separate criminal charges.

Depending on the laws of the state and the circumstances of the case, child endangerment can be a misdemeanor or felony. As a misdemeanor, child endangerment might carry something like up to a year in jail and a maximum $1,000 or so in fines. A felony conviction could result in even higher fines and several years in prison.

CPS Involvement

When parents are arrested for a DUI with their children in the car, there's a good chance CPS will get involved with the family. The parent might or might not lose custody. But it's likely CPS will want to investigate and monitor the situation if there's evidence of ongoing risk to the children.

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