Driving Under the Influence (DUI) with a Minor Passenger

Categories: DUI Defense

DUI with a minor passenger.

A charge of DUI with a minor passenger is no laughing matter. Our state considers DUI with a minor passenger in the car to be a form of child abuse—and such a charge can greatly complicate your legal problems following a DUI. When navigating such serious criminal charges, you should never go it alone. When the stakes are high, having an experienced DUI charges lawyer by your side can help you get the best result possible.

What Is DUI/DWAI in Colorado?

The “I” in both DUI and DWAI stands for “intoxicated.” If you are intoxicated with alcohol at the time the police pull you over, a blood alcohol concentration (BAC) threshold of 0.05% will earn you a DWAI charge. A BAC of 0.08% or higher will earn you a DUI charge. Different standards apply if you are intoxicated with drugs. First-offense DWAI and DUI are both misdemeanors unless there are aggravating factors (a serious accident, for example).

What Is Child Abuse in Colorado, and How Does It Relate to DUI/DWAI Charges?

You commit child abuse in Colorado when you:

  • Injure or kill a child, or damage their health in some way; or
  • Allow a child to be put into a situation that poses an unreasonable risk to a child’s life or health.

DUI/DWAI with a child in the vehicle is not the only action that can constitute child abuse under Colorado law.

Ordinary Colorado DUI/DWAI Penalties

In Colorado, first-offense DUI and DWAI penalties are as follows.

First-Offense DWAI Penalties in Colorado

A first-time DWAI offender in Colorado faces:

  • 8 points on your driver’s license (possibly leading to suspension);
  • A fine of up to $500;
  • Up to 48 hours of mandatory community service; and
  • Up to 180 days in jail.

First-Offense DUI Penalties in Colorado

A first-time DUI offender in Colorado faces;

  • Five days to one year in jail;
  • A fine of up to $1,000;
  • A driver’s license suspension of up to nine months;
  • Up to 96 hours of community service; and
  • Alcohol education classes.

Second and subsequent offenses entail progressively serious penalties.

DUI with a Child in the Car

Having a child in the car when you are driving while intoxicated is considered to be an aggravating factor for which enhanced penalties apply. So to get an idea of what penalty you might face for DUI with a child in the car, your attorney will consider the circumstances of your case. Then they will tack the relevant enhancement factors discussed below onto the basic DUI penalties to determine a potential maximum sentence. But don’t lose hope; this is only a potential maximum. An experienced DUI attorney can still work with the state to negotiate a more positive result for you.

Critical Distinction: Criminal Negligence vs. Recklessness

Your penalty can be enhanced if the court finds that you were reckless rather than merely negligent. Let’s take a look at the differences between these concepts.

Criminal negligence

You act with criminal negligence when you fail to perceive a substantial and unjustifiable risk through a gross deviation from a reasonable standard of care. Driving intoxicated with a child in the vehicle is always considered at least criminal negligence, no matter how carefully you drive.

Criminal recklessness

The difference between recklessness and negligence is that with recklessness, you do perceive the risk, but you disregard it and proceed to act in a dangerous manner anyway.

There is no clear circumstantial distinction between negligence and recklessnessーit’s a judgment call.


The penalties for DUI/DWAI with a minor passenger depend on the consequences. Consider the following three scenarios.

Scenario 1: The child did not suffer an injury

If the child was not injured, the offense is a misdemeanor. Penalties include:

  • Three months to one year in jail; and
  • A fine of up to $1,000.

The judge has the discretion to sentence you to only jail time, only a fine, or a combination of both. And again, you must add these penalties to the above-described DUI/DWAI penalties to arrive at the total penalty.

Scenario 2: The child suffers an injury

If the child was injured, the prosecutor would usually charge you with a Class 3 felony, which can carry additional penalties of:

  • Two to six years in prison, and
  • A fine of $2,000-$500,000.

If the court rules that your behavior amounted to criminal recklessness, however, the penalties increase to:

  • Four to 12 years in prison, and
  • A fine of $3,000–$750,000.

One example of criminal recklessness might be attempting to elude the police by driving at high speeds down a congested highway with a child in your vehicle.

Scenario 3: A child dies in the accident

If the child dies because of your criminal negligence, the state will probably charge you with a Class 3 felony. Penalties include:

  • Four to 12 years in prison; and
  • A fine of $3,000 to $750,000.

If your behavior rose to the level of criminal recklessness, however, the state will likely charge you with a Class 2 felony. Penalties can include:

  • Eight to 24 years in prison; and
  • A fine of $5,000 to $1,000,000.

In addition to these penalties, you might find it impossible to secure custody of your child or even get visitation rights.


You have the right to a defense, and the prosecution must prove you guilty beyond a reasonable doubt. Possible defenses include:

  • Your BAC was not above the legal limit;
  • Your arrest violated your constitutional rights—for example, the officer had no probable cause to pull you over; or
  • The police conducted your DUI chemical test in an inappropriate manner.

Many other defenses might apply as well, depending on your circumstances.

Plea Bargaining

If an acquittal or a dismissal is impossible, a skilled Colorado criminal charges defense lawyer might also be able to secure a favorable plea bargain by having you plead guilty to a lesser charge if the prosecutor agrees to drop the more serious charge. You might plead guilty to simple DUI, for example, if the prosecutor drops the child abuse charge.

Preparing Your Defense: The Time to Start Is Now

If the prosecution has charged you with DUI with a child passenger anywhere in the state, call Mark S. Rubinstein, P.C., today at (970) 704-0888 or contact us online for a free initial evaluation of your DUI case. Although we maintain offices in Aspen, Breckenridge, Carbondale, Glenwood Springs, Grand Junction, Montrose, and Vail, Mark personally handles all cases. The Colorado criminal justice system is aggressive. The time to start preparing your defense is now.

Mark Rubinstein

Attorney Mark S. Rubinstein has been practicing law for more than 30 years, including 25 years in Colorado. He founded Mark S. Rubinstein, P.C., in Carbondale after working for law firms in Denver and earlier in his career in San Diego. He focuses his practice in the areas of criminal defense and personal injury representation, and he is well known throughout western Colorado as an effective and unwavering advocate for his clients.