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Getting arrested for DUI when there are others in the car

Posted by Aaron J. Wolff | Apr 07, 2015 | 0 Comments

One of the first questions I ask people who contact me regarding their recent DUI arrest is whether there were any other people in the vehicle.  If there are minors (under the age of 16), this is considered an enhancement and the person faces additional jail and license suspension on top of the mandatory minimum penalties.  While some people might not have a minor in the car when stopped, it is quite common to have passenger(s).

Speaking frankly, when there are passengers in the vehicle, this is considered an aggravating factor.  Other examples of "aggravating" factors if there is an accident or an unruly or disrespectful person towards law enforcement.  Prosecutors consider these factors when evaluating a case and deciding their plea recommendations.

If there are passengers in the vehicle, there is a chance that the arresting officer or the prosecutor might not only charge the accused with DUI, but also with the crime of reckless endangerment.  Similar to DUI, reckless endangerment (RCW (9A.36.050) is considered a gross misdemeanor (maximum penalty of 364 days in jail and a $5000 fine).  There are is no mandatory jail time with reckless endangerment, but the elements of the crime are a little frightening.  A person is guilty of it when they "recklessly engages in conduct not amounting to a drive-by shooting but creates a substantial risk of death or serious physical injury to another person."

Those elements do not look good on a background check for future employment or volunteer opportunities at a person's favorite non-profit or a child's school.  Conduct that creates a substantial risk of death or serious physical injury to another does not look good.  A few years ago, I had a client be informed by her child's school that she was not eligible to volunteer due to a conviction for reckless endangerment after I strongly cautioned her about the potential future consequences.

While the arresting officer may cite a person for DUI and reckless endangerment, the prosecutor has the final say as to what charge(s) to file.  And if a prosecutor does not originally file the accompanying charge, they can still file it up until halfway through trial.  For example, I have regularly seen the King County Prosecutor's office provide notice that they may file an additional charge if my client does not accept the initial offer and the case is set for motions and/or trial.

Now if a person is stopped for an equipment violation (such as expired tags) that begs the question of how that creates a substantial risk of death to another?  But other times, if a person is excessively speeding or is weaving in and out of their lane, does that constitute reckless endangerment?

If a person is charged with both reckless endangerment and DUI, that creates competing arguments to a jury if the charge proceeds to trial.  Also, different people might prefer a conviction for one over the other.  A person might believe they would rather be convicted of DUI then reckless endangerment as to the future ramifications of the latter on their professional and personal life.  Others might prefer reckless endangerment than DUI given the lack of mandatory minimum penalties.  

Many times, I have seen the prosecutor add reckless endangerment in an attempt to have the accused plea to DUI and then dismiss it once the judge has accepted the plea.  

If you are reading this article after having recently been arrested for DUI and when having other people in the car, I caution you not to become even more distressed.  It is quite common for people to be arrested when others are in the vehicle.  And just because of that, it is not automatic that they face this additional charge.  But they should be fully aware of that being a real possibility and make sure to immediately contacted a skilled DUI lawyer.

About the Author

Aaron J. Wolff

A former DUI prosecutor, Aaron Wolff has over 16 years of experience in representing people accused of DUI and is recognized as one of the leading defense lawyers in Washington State. His relentless and passionate advocacy has lead to superb ratings and outstanding reviews from former clients.

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