Most people are unaware that a DUI conviction with a child in the vehicle results in a mandatory minimum 32 or 37 days in jail if convicted.
Story by Brandon D. Fersten | Photography by Nathan Sparks
Appeared in Cityview Magazine, Vol. 42, Issue 4 (July/August 2026)
After a long week at work, you decide to celebrate the weekend with a nice dinner out with your family. At dinner, you consume a couple alcoholic beverages, enjoy some laughs and good conversation, begin your drive home, then you look back to see your child laughing when suddenly you observe blue lights behind your child’s laugh. You assume it will be a quick 5 minute or less encounter with the officer for speeding or failing to maintain your lane, but what started as a joyful night out has now become your worst nightmare.
The officer asks where you are coming from and whether you consumed any alcohol at dinner. Now, based on an odor of alcohol and an admission of just 1 or 2 drinks at dinner the officer requests you out the car. Next, the officer requests field sobriety tests and suddenly you are placed in handcuffs while your children are watching from the rear seat of your vehicle.
Did you know a DUI carries an enhanced punishment when accompanied by a child?
A DUI conviction, whether from alcohol, prescription medications or illegal drugs, with a child in the vehicle increases that mandatory minimum consecutive jail sentence by an additional 30 days. A DUI with a child in the vehicle results in the following mandatory minimum consecutive jail sentences if convicted:
Felony Charges But that is not all. A car accident or certain other conditions, even when there is no bodily injury, can result in child endangerment charges that can be charged up to a B felony, which means 8-30 years or even 8-12 years for someone with no criminal history.
DUI Investigations Explained DUI cases are broken up into 3 phases of a DUI investigation
Phase 1 is the vehicle in motion phase where an officer must have a lawful reason to pull you over. However, there are additional factors as it relates to a DUI case. Officers are trained there are 24 potential indicators of impairment based on driving behavior, so a skilled DUI attorney will argue that your driving behavior was not indicative of impairment if you do not exhibit such indicators. For example, speeding is not indicative of impairment. To the contrary, speeding without any failure to maintain lane can be indicative of a lack of impairment. However, simply having any of the 24 indicators does not automatically mean the individual is DUI of course. Moreover, just as driving is a divided attention task, the first divided attention task is a motorist’s ability to observe blue lights and pull over safely.
Phase 2 is the personal contact phase where an officer looks for reasonable suspicion, defined as specific and articulable facts, and more than a mere hunch, to believe the motorist is driving impaired. An officer cannot conduct sobriety tests on every individual pulled over for a traffic infraction. As a DUI attorney, it is imperative to challenge every aspect of a DUI stop and arrest including whether the officer had specific and articulable reasons to believe that the motorist has not simply consumed alcohol, but that the motorist is impaired. Here, we look at the five senses that an officer observes, and we differentiate between certain indicators being only indicative of consumption rather than impairment.
Phase 3 is the pre-arrest screening commonly known as the standardized field sobriety tests (SFST). To be standardized, these tests must be conducted on the proper candidate, under proper roadside conditions, and instructed and demonstrated correctly. Otherwise, the validity of the tests and their results are questionable. However, even under perfect conditions the walk-and-turn is only about 79% accurate and the one leg stand test is only 83% accurate. The horizontal gaze nystagmus test is the most reliable at 88% accurate but it is fortunately not admissible in court in most circumstances. Additionally, sometimes officers will perform non-standardized testing, especially in the case of a prescription medication or illegal drug DUI case pursuant to their Drug Recognition Expert (DRE) or Advanced Roadside Impaired Driving Enforcement (ARIDE) training.
Implied consent One of the most common misconceptions in DUI law is that refusing to provide a chemical sample will result in your automatic loss of license. You do not lose your license upon refusing and you may never lose your license. An officer cannot read implied consent to any individual. They must establish probable cause to believe you were driving impaired, and there are numerous defenses available. If you are convicted of DUI, you will lose your license, and a chemical sample may potentially increase the chances of a DUI conviction. In 2026 the implied consent law increased the punishment from 12-month to an 18-month loss of license if found guilty of the implied consent violation in court.
Blood/Breath Testing Chemical tests are not 100% accurate. While the TBI tests a blood sample at 99.73% accuracy, there are still plenty of defenses available regarding the admissibility of the chemical sample and, if deemed admissible, there are arguments available regarding the reliability of that sample.
Personal component: In addition to exploring every potential legal issue potentially present in a DUI case, the attorneys at Barnes & Fersten focus on our clients as people, not criminals. We focus on determining how to present our clients’ personal situation to a prosecutor to demonstrate why the punishment may not fit the crime as it relates to the specific client. For example, loss of employment and a career based on one bad decision can play a factor in alternatively resolving a DUI case. ◆
Emily Smith, Brandon Fersten, Dakota Vermillion & Andrew O’Donnell 2026 Top Attorneys in Criminal Defense & DUI Defense
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