A DUI with a Child in the Car: How a Misdemeanor Can Turn into a Felony
In Oklahoma, your first DUI will always be a misdemeanor, right? While this is normally the case, there are a few factors that can turn even your first DUI into a felony. One of these factors is having a child in the car. If you get a DUI with a minor in the vehicle, your case becomes a felony child endangerment case, rather than a general DUI.
What is child endangerment?
When you first hear “child endangerment,” many think of child abuse. The Oklahoma statute for child endangerment is far broader than that though, and includes a wide array of crimes. One of these is permitting a child to be present in the vehicle with an intoxicated driver.
This applies to the driver, as well as anyone who knowingly allowed the child to get into the car with an intoxicated driver. For example, if you know your husband is intoxicated, and you allow him to drive your child around, both of you will be charged with child endangerment.
Child endangerment applies to someone who is a parent or guardian, or a person who has custody or control over a child. Custody, in this definition, does not mean legal custody, as it would in a family law case. It merely means “possession.” If you are the one watching the child, such as a babysitter, they are in your custody at that time.
This element is typically met, because there are very few instances where you would put a child in a vehicle without having control/custody over the child. Typically, if you are deemed to not have custody of the child, and they are in your vehicle while you’re intoxicated, you are being charged with kidnapping rather than child endangerment.
What is the legal limit for child endangerment?
When it comes to a child endangerment charge, the state has to prove the DUI charge , and must also prove you had a child in the car during the time of the DUI. This means the legal limit is still a .08, and the state will use its standard methods to prove you were driving under the influence.
What age is considered a “child”?
The Oklahoma Statute doesn’t specify an age for purposes of child endangerment, which means the default age for a legal adult and child would apply, making a child anyone under the age of 18.
Does the child have to be injured?
This is a common misconception, but no, the child does not have to be injured in order for you to be charged with child endangerment. In fact, most minors are not injured in child endangerment cases, or you would be receiving a more serious charge relating to bodily injury. Merely having them in the car, or allowing them to get into the car, is sufficient.
Common Child Endangerment Scenarios
When you first hear about the child endangerment charge, you may think, “When would this ever come up?” Most people get a DUI after they have one too many drinks at the bar, and misjudge their level of intoxication. Since you can’t take children into bars, how would a minor ever get involved in a DUI? Here are a few common scenarios where you may find yourself inadvertently perpetrating felony child endangerment.
The Morning After
This is typically the number one accidental DUI child endangerment scenario. You go out with your friends on a Friday night and get intoxicated. Saturday morning, you wake up early and take your kids to breakfast or to an activity, and are unknowingly still under the influence from the night before. You most likely think you are feeling unwell because you are hungover, but are perfectly safe to drive, when in actuality you are operating under the influence.
What if you have been drinking at home and your child has a medical emergency? Most parents will take the risk of putting the child in the car and driving them to get medical attention. While this is the responsible and right thing to do, you are still legally committing child endangerment.
Child’s Sporting Event
Many parents will indulge in a few drinks during their child’s soccer game or football practice. After a few hours of imbibing and socializing, it can be easy to misjudge your level of intoxication. During that car ride home, you are committing felony child endangerment.
What is the punishment for a child endangerment case?
A child endangerment charge is a felony, and brings with it all of the issues of being a convicted felon: You lose your gun rights and voting rights, in addition to facing serious complications with obtaining housing and jobs. A child endangerment charge carries up to 4 years in prison and a fine of up to $5,000, or a combination of the two.
Additionally, your plea or conviction on a child endangerment charge will most likely lead to investigations by the Department of Human Services (DHS), child welfare division. DHS is a completely separate body, and their rulings are completely different from one case to the next. A child endangerment charge can also be used against you in any custody cases that are pending or arise in the future.
The above punishments are in addition to all of the DUI requirements you will face for being convicted of drunk driving, such as participating in a Victims Impact Panel, drug and alcohol assessment, and DUI school.
The Bottom Line
Most child endangerment charges are related to getting a DUI with a child in the car, or allowing your child to get in the car with someone who is under the influence. Typically, your first DUI is a misdemeanor, but that is not the case when a child is in the car. A child’s presence in the vehicle will turn your case into a felony, even if you do not have any criminal history.