Can a DUI With a Child in the Car Be Charged as a Felony in Georgia?

Driving under the influence of alcohol or drugs with a child passenger in your vehicle is classified as DUI child endangerment, under O.C.G.A. § 40-6-391(l).

It provides that any person who violates the DUI statute while a child under the age of 14 is in the vehicle commits the offense of DUI child endangerment. 

Somewhat surprisingly for many people, each child under 14 in the vehicle constitutes a separate offense in Georgia. The presence of each child is charged as a separate offense from the underlying DUI.

This means that a driver with two children under 14 in the vehicle who is accused of DUI could face:

• The base DUI charge, PLUS
• Two counts of child endangerment, each carrying its own penalties.

The law applies regardless of your relationship to the child.

In Georgia, a DUI becomes a felony when it is a person's fourth DUI conviction within ten years. A first, second, or third conviction is classified as a misdemeanor.

The critical thing to understand about child endangerment is that each child under 14 in the vehicle counts as a separate DUI conviction for the purpose of calculating where you sit on that scale. This means the felony threshold can be reached much faster than most people expect:

• A driver with no prior DUIs caught with three children under 14 in the car faces one underlying DUI charge plus three child endangerment counts. That’s four convictions in total, with the fourth count charged as a felony.
• A driver with one prior DUI caught with two children in the car faces one prior conviction plus one new DUI plus two endangerment counts: four total, with the fourth count charged as a felony.

The more prior DUIs on your record, the fewer children need to be in the car for a felony charge to result.

DUI child endangerment penalties vary according to whether the offense is classified as a misdemeanor or felony. Because each child counts as a separate conviction, penalties apply per count.

For a misdemeanor:

• First offense: Up to 12 months in jail and/or fines up to $1,000 per count.
• Second offense: Up to 12 months in jail and/or fines between $1,000 and $5,000 per count.

For a felony (fourth conviction or more within ten years, counting all DUI and child endangerment counts):

• 1 to 5 years in prison.
• Fines up to $5,000.
• Mandatory completion of substance abuse treatment programs.
• Extended probation period.

License suspensions are also lengthier because of the multiple-conviction status of someone caught driving under the influence with children in the car.

The potential for prison time, fines, and probation for a felony DUI conviction is just the start of the consequences. The longer-term impact from the permanent criminal record can include:

• Professional and employment consequences, with problems securing or maintaining professional licenses or working in certain sectors due to background checks or the need for a “clean” driver’s license.
• Immigration status issues (for non-US citizens).
• Problems with travel to Canada and other countries.
• A negative impact from the child endangerment element of the charge on family court proceedings involving parenting or child custody matters.

It is essential to prevent these consequences by defending the charges and not simply accepting your guilt. Often, experienced criminal defense attorneys find mistakes or omissions in the prosecution’s case that can benefit your defense.

Almost every DUI charge should be defended, but the stakes are even higher when you are facing felony charges for child endangerment. 

Often, the argument centers not so much on whether you consumed alcohol but on the actions of police officers, the accuracy of results, and technical details in the case.

DUI child endangerment charges require a conviction on the underlying DUI charge, so we usually begin by conducting a thorough analysis of the police reports and conduct during the stop, arrest, and charge process.

Common defense strategies include:

• Challenging the legality of the traffic stop (was there reasonable suspicion of a crime being committed?)
• Disputing the accuracy of field sobriety or chemical tests.
• Questioning the officer’s observations and procedures.
• Examining whether your Constitutional rights were violated during the arrest process.

Even if the DUI charge is proven, we may be able to challenge the endangerment component by:

• Contesting the age of passengers (the law only applies to children under 14).
• Examining the circumstances to see whether the child was really “endangered”.

Can we get the charge reduced from a felony?

Our initial aim will usually be to have the case dismissed, although this is sometimes impossible. Even if the evidence against you is strong, we may be able to negotiate with the prosecution for a reduction in charges, particularly if it is your first offense.

While there are no guarantees, having a skilled DUI lawyer advocate for your interests can be of great help. In some cases:

• A felony charge can be reduced to a misdemeanor.
• Multiple endangerment charges can be consolidated into a single charge.
• Alternative sentencing options like treatment programs and probation can be proposed.

Child endangerment is just one way for a DUI to be escalated from a misdemeanor to a felony in Georgia. Other ways include:

• A fourth DUI conviction within ten years: Under O.C.G.A. § 40-6-391(c)(4), a fourth DUI within a 10-year lookback period is charged as a felony, carrying a mandatory minimum of 90 days imprisonment (with up to five years), fines of $1,000–$5,000, and a minimum five-year license suspension.
• DUI causing serious injury: Under O.C.G.A. § 40-6-394, driving under the influence that causes serious injury to another person is charged as serious injury by vehicle, a felony carrying one to fifteen years of imprisonment.
• DUI causing death: Under O.C.G.A. § 40-6-393, a DUI that results in the death of another person is charged as vehicular homicide in the first degree, a felony carrying three to fifteen years per fatality.

If you’ve been charged with DUI in Morgan County, Georgia, speak to a criminal defense lawyer from Michael Fulcher Law, LLC. We’ll outline your legal options and help you navigate the legal system. Contact us for a free consultation or call us at 706-438-1555.