DUI With a Child in the Car: Why Georgia Treats It as Aggravated and How to Fight the Charge

Georgia treats DUI with a child passenger as an aggravated offense. A conviction can lead to serious penalties, including jail and impacts on child custody. Here is what you need to know about these charges so you can have the best possible defense.

What Counts as DUI Under Georgia Law?

Under Georgia law, you can be charged with DUI if you operate or are in actual physical control of a moving vehicle while alcohol, drugs, or another intoxicating substance makes you a less safe driver. A DUI charge may also be based on having a prohibited blood alcohol concentration, such as 0.08% or higher for most drivers.

Penalties depend on factors including your prior DUI history and the facts of the case. Possible penalties include jail time, fines, probation, community service, license suspension, mandatory DUI education, and substance abuse evaluation or treatment. A first or second DUI is generally a misdemeanor, while a third offense is a high and aggravated misdemeanor and a fourth within ten years may be charged as a felony.

What is Aggravated DUI?

An aggravated DUI is when a DUI happens, but there are other circumstances that make it more serious than a regular DUI. One instance is driving with a child in the car. If this happens, a person will be charged with DUI and child endangerment.

In Georgia, child endangerment by DUI occurs when a person violates the state’s DUI law while transporting a child under the age of 14 in a motor vehicle. This is treated as a separate offense from the underlying DUI charge because the law recognizes the added risk created when an impaired driver has a young passenger in the vehicle. A conviction can result in additional penalties, including fines, probation, community service, and possible jail time depending on the circumstances of the case. The severity of the consequences may depend on factors such as the child’s age, the driver’s prior record, and the facts surrounding the DUI arrest.

How Can I Fight These Charges?

While every case is different, several legal defenses may be available depending on the facts and evidence.

• Challenge the traffic stop if law enforcement lacked reasonable suspicion or probable cause.
• Question field sobriety tests, which can be affected by medical conditions, fatigue, weather, or uneven surfaces.
• Review breath or blood test procedures for errors in collection, calibration, maintenance, or handling.
• Examine police conduct to determine whether your constitutional rights were violated during the investigation or arrest.
• Analyze video evidence, including dashcam or body camera footage, for inconsistencies with the officer’s report.

The most important step you can take is to contact an experienced Georgia DUI defense attorney as soon as possible.

Frequently Asked Questions

Does your BAC matter if you have a child in the car anyway?

While a blood alcohol concentration (BAC) of 0.08 or higher can create an automatic basis for a DUI charge under Georgia law, BAC alone does not always determine whether a person was unsafe to drive. The law also prohibits driving when alcohol impairs a person’s ability to operate a vehicle safely, even if the BAC is below 0.08. A BAC reading is important evidence, but it is not the only factor. The totality of the circumstances, including driving behavior, physical condition, and other evidence of impairment, may determine whether a person was less safe to drive.

Can you lose custody of your child after a DUI with a child in the car?

A DUI involving a child can create issues beyond the criminal case itself. If custody, divorce, or parenting time is being decided, a family court may consider the circumstances of the DUI when determining what arrangement is safest and in the child’s best interests. Depending on the facts, the court could limit parenting time, require supervised visitation, order alcohol assessments or treatment, or make other changes to protect the child.

Can I go to jail if I get a first-time DUI with my child?

Yes, you can. With a first-time DUI, a jail sentence can be imposed, but it could be served on probation. In Georgia, DUI and child endangerment are distinct criminal offenses. If you are accused of driving under the influence while transporting a child under the age of 14, prosecutors can charge you with both crimes. A first-time child endangerment offense is a misdemeanor punishable by up to 12 months in jail and a fine of up to $1,000. Because child endangerment is charged separately from the DUI, a conviction on both offenses can result in jail time for either or both offenses, even if this was the first time it happened. If it is not the first offense, penalties are more significant. 

Should I talk to the police after being accused of DUI with my child in the car?

If you get pulled over for a suspected DUI, the best thing you can do is stay calm, be respectful, and cooperate with the officer while protecting your rights. You should provide your driver’s license, registration, and proof of insurance when asked, and follow lawful instructions, like getting out of the vehicle if the officer tells you to. You do not have to answer questions that could hurt your case, such as “Have you been drinking?” or “How much did you drink?” You can politely say, “I’d prefer not to answer any questions without an attorney.” Avoid arguing with the officer or making statements that could make the situation worse.

Contact An Experienced DUI Attorney 

Getting charged with a DUI in Georgia when a child is in the car can cause serious consequences, including jail time and custody issues. It is incredibly important to contact an experienced DUI criminal defense attorney as soon as possible to mount the best possible defense.