ARS 28-1383(A)(3) is the Arizona statute that makes it an aggravated DUI if a motorist drives under the influence while transporting a child under the age of 15. A violation of this code section is a Class 6 felony. The crime may be punishable by a mandatory minimum jail term of up to 180 days and/or a maximum fine of $4,000.

Examples

• driving a car with a .09% blood alcohol concentration (BAC) and having a baby in the motor vehicle.
• a parent driving a 13-year-old son to a sports game while guilty of drunk driving.
• a nanny operating a vehicle while intoxicated and having a child in the car.

Defenses

DUI defense attorneys draw upon several legal strategies to help people contest criminal charges under this law. A few common examples include defense lawyers showing that:

• the defendant did not have a child passenger,
• the accused was not under the influence, and/or
• police stopped the accused without probable cause.

Penalties

A violation of this law is a Class 6 felony (as opposed to a misdemeanor offense).

Penalties can rise to the level of:

• at least 180 days in jail time,
• a maximum fine of $4,000, and
• a minimum 1-year driver’s license suspension.

In this article, our Phoenix Arizona criminal defense attorneys/DUI defense lawyers will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1. How does Arizona law define “aggravated DUI charges with children in the car”?

A prosecutor must prove the following elements to successfully convict a driver under ARS 28-1383A3:

1. the defendant drove or was in actual physical control of a motor vehicle while under the influence (of alcohol and/or drugs), or
2. the defendant drove or was in actual physical control of a vehicle with blood alcohol content above the legal limit of .08%, and
3. the accused had a passenger in the vehicle that was under the age of 15.¹

2. Are there defenses to allegations of this crime?

People accused of a crime in these DUI cases can challenge the accusation with a legal defense. Three common defenses include defendants showing that:

1. they did not have a child passenger.
2. they were not under the influence.
3. authorities stopped them without probable cause.

2.1. No child passenger

Under Arizona DUI laws, people are only guilty under this statute if they drive with a passenger under the age of 15. Defendants, then, can avoid guilt by showing that either:

• they did not have a passenger in their vehicle, or
• any and all passengers were 15 years or older.

2.2. Not under the influence

Recall that an accused is only guilty of a DUI offense under this statute if he/she drove with a child passenger while under the influence. Therefore, an accused can avoid a DUI conviction by showing that he/she was not under the influence.

2.3. No probable cause

This is a common defense in Arizona DUI cases. It is unlawful for law enforcement to stop or perform a DUI arrest of a person without probable cause that they committed some illegal act. If there is not probable cause, then a defendant can seek to exclude any evidence the police gathered after the unlawful stop. A defense, then, is for defendants to show that the police stopped them without probable cause.

3. What are the DUI penalties?

Driving under the influence with a child passenger under 15 years old is a DUI charge classified as a Class 6 felony. The prison term for the offense depends on the defendant’s BAC level at the time of the arrest:

BAC Level	Mandatory Minimum Jail Time
.08% to .149% (Impaired or Per Se DUI)	First offense: 10 days Second or subsequent offense: 90 days
.15% to .199% (Extreme DUI)	First offense: 30 days Second or subsequent offense: 120 days
.20% or higher (Super extreme DUI)	First offense: 45 days Second or subsequent offense: 180 days

A judge also has the discretion to impose the following penalties in these felony DUI cases:

• up to $4,000 in fines,
• a minimum 1-year driver’s license suspension,
• alcohol or other drug screening, education, or treatment,
• minimum 24 months of driving with an ignition interlock device (IID),
• a traffic survival school course, and
• forfeiture of the vehicle.²

4. Are there related offenses?

There are three crimes related to DWI with a passenger under 15. These are:

1. DUI – ARS 28-1381A1,
2. contributing to the delinquency of a minor – ARS 13-3613, and
3. endangerment – ARS 13-1201.

4.1. DUI – ARS 28-1381A1

Under ARS 28-1381A1, DUI is the offense where someone drives or is in actual physical control of a motor vehicle while under the influence of:

• alcohol,
• drugs,
• a vapor releasing substance containing a toxic substance, or
• any combination of liquor, drugs, or vapor.

Unlike with aggravated DUI, a first offense under this statute is a misdemeanor DUI. The criminal law that says that people guilty of DUI can face:

• jail time,
• a 90-day driver’s license revocation,
• an IID for 1 year,
• drug and alcohol screening, education, or treatment,
• traffic survival school course, and/or
• possibly community service.

4.2. Contributing to the delinquency of a minor – ARS 13-3613

Under ARS 13-3613, contributing to the delinquency of a minor is the crime where people commit an act that tends to debase or injure the morals, health, or welfare of a child.

As with charges under ARS 28-1383A3, people can contest charges under this law with the defense that police stopped or arrested them without probable cause.

4.3. Endangerment – ARS 13-1201

Per ARS 13-1201, endangerment is the crime where people recklessly put someone at risk of imminent death or physical injury. If the “victim” of the crime is a child, the offense is commonly referred to as “child endangerment.”

Depending on the facts of a DUI with a child passenger case, the defendant could face charges under both:

• ARS 28-1383A3, and
• ARS 13-1201.

For additional help…

For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm/law offices at the Shouse Law Group. Our legal team provides both free consultations and legal advice you can trust.

1. Arizona Revised Statutes 28-1383A3. See also State v. Olquin, 216 Ariz. 250 (Ariz. Ct. App. 2007).
2. See ARS 28-1383.