Misdemeanor DUI with a Child in the Car is a Felony!

unnamedMisdemeanor DUI

with a Child in the Car is a Felony!

In 25 years defending DUI and other criminal cases my clients are always shocked to learn that they were charged with PC 273a (a) Child Endangerment as a felony and a VC 23152 (a) DUI as a misdemeanor. How can that be? It is pretty clear that the California Legislature wanted its citizens to know just how defenseless a child is when an adult is driving a vehicle DWI. The Penal Code language states: 273a. (a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, 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. The real problem, I tell my clients, is the language that points to driver, family or not, that “willfully causes or permits that child to be placed in a situation where his or her person or health is endangered.” And that does not mean that the child actually has to be hurt or in an accident. The child just has to be “placed in a situation” where the child could be hurt.

The penalty for Child Endangerment is two, four or six years in state prison! That is not the type of penalty a soccer mom or football dad could ever contemplate after having a few glasses of beer or wine after the game and before driving home.

There are defenses to this charge, such as a rising blood alcohol level. That is, when you actually pulled over by the officer, you were not over the legal limit until the officer drove you around in the back of their patrol car for an hour. In an hour, your body could easily absorb enough alcohol to place you over .08 BAC limit.

Today, I was fortunate enough to negotiate a reduction of the felony child endangerment to a misdemeanor pursuant to 17(b)(4). It was not easy and it was in a situation that seemed to offer no hope. Together, myself, Dan Smith and attorney Jon Pettis used our collective experience. In fact, Jon Pettis appeared with out client 2 times as did I in this case. Over the course of the negotiations, the different approaches and personalities worked in our clients favor. When I got the Deputy District Attorney to agree, I seized the opportunity to enter the plea to a misdemeanor. In all honesty, the probation department will not make it easy on our client, but he can keep his job and support his family. That is something you cannot do in jail.

Our client is a good person that made a poor decision to drive in a semi-emergency situation. Just this one time. But the officer contacted our client and we got the call. The bail was set at $50,000. That was our first indication it was being charged as a felony. A good result for our client and our law firm. “It will never happen again” was the promise our client gave to us today. San Diego Courts can be tough, call us if you need our help.