By: William C. Head, Atlanta DUI Lawyer
Most states in America have passed laws creating a separate crime of child endangerment when children under a certain age are passengers in a vehicle being driven by an impaired driver. In some states, like Illinois, the crime is a felony DUI, with a minimum of 6 months in jail, if convicted.
In most states (including Georgia), however, the crime of driving while intoxicated — DUI with child in car — is a DUI misdemeanor unless a child who is a passenger is killed or suffers serious bodily injury as a result of the DUI accident in which he or she was an unwitting passenger.
Most reported appellate cases have dealt with DUI-alcohol cases, but some cases deal with driving under the influence of drugs or DUI-combination alcohol and drugs. Even for a first offense misdemeanor DUI child endangerment case, the typical minimum jail time (across the United States) is 10 days, which is what Georgia DUI law requires.
These SIX (6) key fact patterns highlight the crime of DUI child endangerment in GA:
Georgia’s habitual violator (HV) law can be triggered by one driving incident of DUI with child in car, causing three DUI convictions to occur, when two underage children of the driver are passengers. (See the case of Jaffray v. State, where this happened to that parent, who ended the case with three DUIs on his record.
Even worse, see the Johnson v. State case below, where a female day care worker who had a BAC level of 0.15 grams percent picks up 9 DUIs, when she drives after ushering the children at the daycare to get in her van, to avoid an irate parent who showed up at the facility.The significant features of a person being declared a habitual violator (for having three or more serious driving offenses) is that the person’s driver license is REVOKED (removed from Georgia DDS records).
After being declared HV, that person cannot even SIT in the driver’s seat of a motor vehicle for 5 years, after being declared HV. A riding lawn mower and an electric golf cart are motor vehicles in Georgia, by the way. To do so is a felony criminal offense, with up to five years in state prison.
Multiple DUIs (three or more convictions) can trigger immigration implications. Where a non-resident alien driver was in that situation after racking up two prior DUIs, and entered his plea to a third DUI and (because driving DUI with child in car) a fourth DUI felony (for the eight month old child in the floorboard of his vehicle), compounded by a child endangerment DUI for a child in the vehicle, the fact that deportation was a consequence had no grounds to seek a new trial on appeal of that guilty plea. See Lopez v. State below.
Because the public is generally protective of children when a dangerous situation is observed, a 911 call from a concerned citizen can bring police to the scene legitimately, and the ubiquitous nature of cell phones can be used to help police find the right car.
Speeding, reckless driving or rude and opprobrious behavior of a driver believed to be DUI with child in car being observed by other motorists or pedestrians, can lead to a DUI child endangerment arrest after emergency calls to police. The many harsh consequences that follow, for both DDS GA license implications, and multiple drunk driving convictions, not to mention mandatory jail time are staggering, even when no deportation issue like in the Lopez case arises. See Wagner v. State below.
The following five (5) sample appellate cases about child endangerment by DUI in the State of Georgia reveal the nightmare DUI consequences that can happen when children are exposed to the risk of a drunken driver, and criminal courts get involved:
ENDANGERMENT CASE NUMBER 1. DUI with child in the car creates TWO DUI convictions from one driving incident, and the DUIs do not merge
“Based on a single incident, Janette L. Jackson pled guilty to driving under the influence of alcohol and endangering a child by driving under the influence, in violation of OCGA § 40-6-391(a) and (l), respectively (the “DUI Statute”). The Georgia Department of Driver Services (“the Department”) thereafter suspended Jackson’s license for three years for having two separate DUI convictions pursuant to OCGA § 40-5-63(a) (the “License Suspension Statute”). Jackson appealed to the Superior Court of Henry County, which held that Jackson should not be treated as if she had two convictions since they resulted from a single incident. Greg Dozier, as commissioner of the Department, appeals. We find that the License Suspension Statute does not require that convictions result from separate and unrelated incidents, and we therefore reverse. Jackson was pulled over by a Georgia state trooper at approximately 5:00 in the morning on October 30, 2004. She submitted to chemical testing, and her blood-alcohol concentration was measured at more than one and a half times the legal limit provided under subsection (a)(5) of the DUI Statute. Jackson was charged separately for child endangerment DUI because an 11-year-old passenger was in the car with her. Jackson pled guilty to both charges.” Dozier v. Jackson, 282 Ga.App. 264, 636 S.E.2d 337 (2006)
ENDANGERMENT CASE NUMBER 2. If more than one child in car, will multiple DUI convictions be added, such as EIGHT children under age 14 equals NINE Convictions of Drunk Driving?
Yes, for every child under age 14 in the vehicle, the driver can be charged with an additional DUI. In one Georgia reported appellate case that had to go to trial, where the prosecutor would not offer a reduction of any type (due to the non-merger language of Georgia DUI laws on driving to endanger), the case was set up for an appellate challenge, in light of the devastating consequences of 9 DUI convictions from one DUI arrest.
“Johnson was arrested and charged with less safe DUI, in violation of OCGA § 40–6–391(a)(1); per se DUI, in violation of OCGA § 40–6–391(a)(5); and eight counts of child endangerment, in violation of OCGA § 40–6–391(l). Johnson moved to exclude all physical and testimonial evidence gathered after the point in which the officer signaled her through the window to return outside, arguing that the officer’s command amounted to an unlawful seizure in violation of the Fourth Amendment to the United States Constitution. After an evidentiary hearing, the trial court denied the motion, finding that the officer’s conduct at all times was reasonable in light of the circumstances presented. The parties then stipulated to the evidence presented during the hearing for the purposes of a bench trial, and the trial court found Johnson guilty on all counts. This appeal followed.” Johnson v. State, 299 Ga.App. 474, 682 S.E.2d 474 (2009)
[In Johnson, the Court of Appeals agreed with the trial judge that the woman had not been seized, where (after judging her to show signs of being drunk) the officer only let the woman walk the children back inside the day care, before he finished his investigation of her suspected DUI. Because DUI penalties increase with the number of prior offenses, this driver had penalties for DUI that not only prevented her from driving, but required substantial prison time. So, the appeal was unsuccessful, but the Georgia DUI attorney representing Ms. Johnson undoubtedly decided that taking a Judge’s time for a non-jury trial likely reduced the punishment that would have come after a jury heard a case of this nature, with day care children huddled inside a van and the driver was 0.15 BAC. This one attack was like a “rifle shot,” seeking to win all or lose all, with the least repercussions to the client, by opting for a bench trial.]
ENDANGERMENT CASE NUMBER 3. Multiple DUI convictions can trigger immigration issues, and cause a harsher impact of DUI consequences, by deporting the convicted DUI driver
“This is not a case in which a defendant pled guilty without knowing he would be deported as a result. It was clear during the plea hearing that Lopez, his attorney, the State, and the trial court expected that he would be deported sooner or later. Lopez had admitted being here illegally, ICE already had a hold on him, and in addition to the felony child endangerment plea, Lopez was entering his third DUI plea within the past year. Lopez contends his counsel was ineffective for telling him he would be deported before he served his sentence, but the trial court determined that Lopez’s testimony in that regard was not credible. Further, the trial court noted during the motion hearing that the court had handled hundreds of similar cases and had “absolutely no idea when or if Immigration Customs will take custody of somebody.”
Lopez v. State, 309 Ga.App. 756, 711 S.E.2d 345 (2011)
[Georgia criminal courts in such cases now require that a person pleading guilty acknowledge that he or she understands that any immigration issues at a DUI plea MAY trigger deportation or other immigration law issues. Trial errors that might have reversed the conviction for three DUIs (driver charged with less safe DUI and two counts of child endangerment), due to two children being in the vehicle must be properly preserved for an appellate court to review these on appeal. No motion for mistrial was raised, and failure to object to the breathalyzer test results being introduced could not be raised for the first time on appeal.]
ENDANGERMENT CASE NUMBER 4. Habitual Violator status can be created in one driving incident when 1 DUI and two child endangerment DUI convictions also are imposed
“Viewed in favor of the verdict, the record shows that at approximately 11:30 p.m. on November 10, 2007, Trooper James Lewis of the Georgia State Patrol observed a vehicle approaching at a high rate of speed. Lewis visually estimated that the vehicle was traveling over 70 miles per hour, and radar confirmed its speed at 79 miles per hour. The posted speed limit in that location was 55 miles per hour. The officer stopped the car and approached its driver, Jaffray. A woman, a 17 month old girl, and a 12 year old boy were also in the car. Lewis observed that Jaffray’s eyes were watery and bloodshot, and he detected a “strong odor” of alcoholic beverage emanating from Jaffray. Lewis asked Jaffray if he had consumed any alcohol, and Jaffray responded that he had a drink at a hockey game earlier in the evening and was trying to get his children home.”Jaffray v. State, 306 Ga.App. 469, 702 S.E.2d 742 (2011).
ENDANGERMENT CASE NUMBER 5. A Child Endangerment “911 call” can bring police to your vehicle, and lead to DUI child endangerment, plus the underlying drunk driving criminal offense
Headnote (summary of facts) from Wagner v. State, 311 Ga. App. 589, 716 S.E.2d 633 (2011): “Sufficient evidence existed to support convictions for driving under the influence of alcohol to the extent it was less safe for him to drive (DUI-Less Safe) and child endangerment by driving under the influence of alcohol (DUI-Child Endangerment); evidence indicated that restaurant patron followed defendant as defendant drove away from restaurant, child was passenger in defendant’s automobile, defendant’s driving was erratic, police officer noticed strong odor of alcoholic beverage coming from defendant’s mouth, defendant admitted drinking one alcoholic beverage, and defendant exhibited six out of six clues for possible impairment when officer conducted horizontal gaze nystagmus test.”
Atlanta DUI Attorney William C. Head is a criminal defense attorney and personal injury lawyer with 40 years of litigation experience. Mr. Head is partners with two other Atlanta attorneys who are DUI lawyer criminal attorneys, Larry Kohn and Cory Yager. All three have undertaken defense of some of the most difficult DUI child endangerment cases in Georgia, including these REAL facts:
Thankfully, only about 1% of all DUI arrest cases involve DUI with child in car offenses. No other type DUI cases carry such devastating consequences of DUI than these cases, with the exception of felony vehicular homicide or felony serious injury by vehicle.
Call 40-year veteran Atlanta DUI attorney Bubba Head today and get honest answers to all your questions. Tell us everything that happened and everything you remember about your DUI arrest. The sooner you call us, the better chance we have to win your case.
Remember, you only have 30 DAYS to file a license suspension appeal or apply for an ignition interlock device, or your driver’s license will be suspended for up to one year! Talk to Bubba Head, Larry Kohn, or Cory Yager now. We are available 24 hours a day, weekends, and all major holidays. (404) 567-5515