Fighting DUI and Child Endangerment Charges When You Were Not Driving

Attorney Answer

Driving is an element the prosecution has to prove beyond a reasonable doubt — but "I wasn't driving" only helps if the state cannot prove it circumstantially either.

California's DUI statute, Cal. Veh. Code § 23152, makes it unlawful to *drive* a vehicle while under the influence of any alcoholic beverage, subdivision (a), or to *drive* with 0.08 percent or more alcohol by weight in the blood, subdivision (b). Because both subdivisions make driving an element, the prosecution has to prove you drove. It can do that with direct evidence — a witness, an officer's observation — or with circumstantial evidence, such as your own statements, where the keys were, or where the car was found. So the fight is not over whether driving is required; it is over what evidence of driving actually exists in the file.

The child charge is separate. Cal. Penal Code § 273a criminalizes willfully causing or permitting a child to be placed in a situation endangering the child's person or health. Subdivision (a) is the felony-eligible version, requiring circumstances or conditions likely to produce great bodily harm or death; subdivision (b) is the misdemeanor version for other circumstances. Which subdivision was charged drives your exposure, so read the charging document. Either way, the prosecution must prove that *you* were responsible for exposing the child to the risk — proof of a DUI alone does not establish it.

One thing to get right if a young child was in the car: Cal. Veh. Code § 23572 adds a mandatory, non-stayable county jail term on a § 23152 conviction where a minor under 14 was a passenger — 48 continuous hours for a first offense, 10 days for a second, 30 days for a third, and 90 days at the felony level. The minor's presence must be pled and proven. Critically, § 23572 does not apply if you are also convicted of Penal Code § 273a arising out of the same facts. These are alternatives on the same set of facts, not stacked penalties, so do not assume you are facing both.

What you can do

1. Write down today, for your lawyer only, exactly who drove, where the keys were, where you were standing when police arrived, and who else was present. 2. Collect witness names and phone numbers now, and ask anyone with a doorbell or business camera to save the footage before it overwrites. 3. Preserve rideshare receipts, texts, and phone location history from that night. 4. Get the discovery through your lawyer or the public defender and identify what the report actually recites as evidence of driving — an admission, warm engine, keys in the ignition, a witness. 5. Read the charging document for whether § 23572 is pleaded and whether Penal Code § 273a is charged under subdivision (a) or (b). 6. Do not explain your version to police, the prosecutor, or a child-welfare investigator without counsel. 7. Ask for appointed counsel at your first appearance if you do not have a lawyer.

⏱ Time limits apply. If a chemical test was taken and the officer handed you a notice of suspension, that notice starts a separate DMV clock — measured in days from the arrest, not months — to request an administrative hearing. That licence case is a different track from the criminal case, with a different standard of proof, and the two can reach opposite results on the same stop. Winning one does not dispose of the other. The deadline is printed on the notice you were given.