The One-Two Punch of DUI and Child Abuse

Colorado drivers who are arrested for an alcohol-related traffic offense and have a passenger in the car under the age of 16 are likely to get an unpleasant surprise along with their DUI citation: an additional criminal charge for the offense of Child Abuse.

Colorado law defines the crime of child abuse to include circumstances in which a person “unreasonably places a child in a situation that poses a threat of injury.” In many Colorado jurisdictions, elected District Attorneys have decided that this broad language includes the action of driving a vehicle with a BAC over .05 (the lowest limit eligible for DWAI arrest) while a child is a passenger in the car. It doesn’t matter whether the child is the driver’s child or someone else’s. It doesn’t matter whether the driver has the permission of the child’s parent to be riding in the car under the specific circumstances. It doesn’t matter whether the driver is a child himself—such as a 17-year-old driver with a 15-year-old friend in the passenger seat. If the driver is stopped and arrested for an alcohol-related driving offense, the prosecutor will likely charge child abuse as well.

The tag-along child abuse charge creates a particularly difficult situation for the driver for a number of reasons. First, the impact of a child abuse charge carries more onerous consequences for some groups of people than the DUI charge that is at its root. Second, although many drivers will be able to successfully negotiate with the prosecutor for the dismissal of the child abuse charge as part of a plea bargain, the mere fact of being charged with child abuse will generally result in a person’s permanent placement on a statewide database of offenders against children. Third, because of unique and strict laws relating to DUI cases, even drivers who ultimately win dismissal or acquittal of every offense charged in their cases will be unable to erase the reference to a child abuse arrest from their public record.

Child abuse citations are unique in Colorado in that they are reported automatically to the Department of Health and Human Services (DHS) in the county in which they occurred. Even in the event that law enforcement chooses not to prosecute the case or the District Attorney ultimately dismisses it, the Department of Human Services will make a separate finding of whether an incident of child abuse occurred. If there is enough information in the initial reports to substantiate impaired driving, which there usually will be in any case where the driver was arrested for DUI, DHS will confirm the incident of child abuse and inform the driver that he has been selected for inclusion on the Colorado State child abuse registry. While the child abuse registry is not public, it is accessible to agencies that oversee children. Teachers, day care providers, foster parents, families seeking to adopt, and even parents who want to volunteer with their childrens’ schools, athletic teams, or community organizations can all be severely impacted by a listing on the child abuse registry.

With the help of good advocacy or representation, many drivers are ultimately able to secure dismissal of the child abuse charge attached to their DUI offense. Unfortunately, the dismissal of the criminal child abuse charge does not clear the driver from inclusion in the DHS child abuse database. Worse yet, while the DHS child abuse database is not accessible to members of the general public, criminal records are accessible to any person or entity that chooses to run a routine criminal background check. Even a dismissed charge will show up on a criminal background check unless the record is sealed thorough the filing of a civil petition to remove it from public access. Under current Colorado law, with very few exceptions, only a case that has been dismissed in its entirety can be sealed. Worst of all, while the Colorado records sealing statute is an excellent tool for many people who have had a criminal case charged and dismissed, current Colorado law exempts DUI charges from records sealing, thus preventing DUI charges from ever being sealed under any circumstances. Put simply, if a driver is charged with DUI and child abuse in a single incident, regardless of the outcome of the criminal case or any of its constituent parts, the child abuse allegation will always be revealed on a public records background check. Until the legislature makes some significant changes to Colorado records sealing law, the only way to avoid a permanent record of a child abuse charge is to avoid the charge in the first place.