In DWI/DUI cases involving child passengers or victims, traffic prosecutors should consider the applicability of generic child endangerment or abuse statutes. In People v. Cruz, 576 N.Y.S. 978 (N.Y. Criminal Ct. 1991), the defendant drove his car with a blood alcohol concentration (BAC) of .18 grams per deciliter with his two children in the car. The court recognized the inherent dangers of impaired driving and held that there was sufficient evidence to find the defendant guilty of endangering the welfare of a child. Similarly, in State v. Miller, 1995 Ohio App. LEXIS 3523 (Ohio App. 1995), the defendant drove his car while under the influence of a controlled substance (Tuinal, the brand name of a drug containing two barbiturates) with his 7-year-old son in the car. The jury found the defendant guilty of child endangerment. The appellate court noted that the defendant “created a substantial risk to [the] health and safety” of his son and upheld the conviction.15
Unfortunately, not all courts recognize the special and seemingly obvious dangers that DUI drivers pose to their passengers. In State v. Mastomatteo, 719 A.2d 1081 (Pa. App. 1999), appeal denied, 1999 Pa. LEXIS 1040 (Pa. April 13, 1999), a police officer observed the defendant drift over the middle line three times at a slow rate of speed. When the officer stopped the defendant, she noted that defendant was accompanied by her young son. The officer also saw a glass containing what appeared to be an alcoholic beverage on the front seat and that the defendant appeared to be impaired. The officer administered field sobriety tests to the defendant, which she failed. The officer arrested the defendant and took her to the hospital for toxicological testing. Blood analysis revealed the defendant had a .168 blood alcohol level; urinalysis found 570 nanograms per deciliter of marijuana in her urine. A jury convicted the defendant of driving under the influence and reckless endangerment of another person. The appellate court overturned the reckless endangerment conviction, concluding that DUI does not amount to recklessness absent other indicia of unsafe driving to a degree that creates a substantial risk of injury that is consciously ignored (the court affirmed the DUI conviction). Despite the jury’s conclusion to the contrary, the Mastomatteo court castigated the prosecutor and trial judge, stating that while it does not condone or advocate drinking and driving:
Id. at page 1084.
In an even more extreme example, an Ohio court reached a similar result in State v. Graves, 598 N.E.2d 914 ( Ohio 1992). In Graves, an officer stopped the defendant because he was weaving and his lights were off. The officer discovered that the defendant had two unrestrained children in the back of the vehicle. The officer also observed that the defendant was impaired. The officer arrested the defendant and charged him with DWI and two counts of child endangerment. At the station, the defendant provided a breath sample of .159, almost twice the illegal limit. The Municipal Court found the defendant not guilty of child endangerment because the court believed that his actions did not create a “strong possibility” that a crash would occur and that the children would be injured.
These last two rulings are disturbing. Operating a vehicle under the influence of alcohol is dangerous per se; there is no truly “safe” blood or breath alcohol concentration (BAC or BrAC) at which people can drive.16 Indeed, studies demonstrate that impairment begins at the lowest recordable levels.17 The American Medical Association’s (AMA) Council on Scientific Affairs recognizes that, “ significant alcohol involvement in injury-causing road crashes begins at a driver BAC of 0.05.”18 Thus, the AMA19 and the American College of Emergency Physicians (ACEP)20 advocate an illegal limit of .05. The defendants in Grave and Mastromatteo were over twice the illegal limit of .08 and over three times the AMA recommended illegal limit of .05.
There currently are 38 States and territories with statutes that include special sanctions for DWI or DUI cases with child passengers. ( See Appendices.) These statutes fall into three categories:
Some statutes add specific mandatory sanctions to the standard DUI or DWI penalties when a defendant drives impaired with a child in the car.21
Some States have statutes establishing DUI or DWI with a minor in the car as a distinct offense from regular DUI or DWI.22
Some States do not prescribe specific enhancements or penalties for DUI or DWI with a child passenger. However, these States allow judges or jurors to consider the existence of a child passenger as an aggravating factor for sentencing purposes.
It is difficult to track the provisions’ use and effectiveness because offenses typically are entered into the computer system according to the offense, without details about the particular circumstances. Therefore, a DUI or DWI with a child passenger usually is recorded as a simple DUI or DWI.
Related Problem: Children as Designated Drivers
Among the most disturbing cases of DUI child endangerment are those in which guardians demand that their children “cover for them” after becoming intoxicated. These cases include situations where guardians request that young children serve as designated drivers and cases where guardians ask children to blow into their vehicles’ ignition interlock devices so that they can start their cars.
In all of these cases, prosecutors should consider filing appropriate criminal charges, such as child endangerment, allowing unauthorized minors to drive, and contributing to the delinquency of a minor. See e.g. State v. Grooms, 2003 Tenn. LEXIS 1265 ( Tenn. Aug. 1, 2003), appeal denied, 2003 Tenn. Crim. App. LEXIS 671 ( Tenn. Crim. App. Dec. 29, 2003) (affirming convictions for DUI and child endangerment). As discussed above, prosecutors should consider the totality of circumstances in reaching a charging decision.
15 See also State v. D’Ambrosia, 746 N.Y.S.2d 556 ) N.Y. County Ct. 2002) and State v. Castaeda, 30 P.3d 368 (N.M. App. 2000). In D’Ambrosia, the defendant drove 19 mph over the speed limit with a BAC of .18 and a child in the car. The court determined that the defendant’s conduct “create[d] a serious risk, significantly beyond the realm of speculative, that defendant [would] lose control of the car and cause an accident resulting in injury to his young passenger.” Thus the court held that the facts were sufficient to sustain a charge of endangering the welfare of a child. In Castaeda, the defendant drove on the wrong side of the road while impaired by alcohol with his children in the car. The court found the facts sufficient to support a finding of reckless endangerment.
16 M. Valaske, A Safe-Driving Level of Blood Alcohol, 39 Pathologist 36 (March 1985) (advocating a zero tolerance DUI law). See also J. Peterson, J. Rothfleisch, P. Zelazo, and R.O. Pihl, Acute Alcohol Intoxication and Cognitive Functioning, 51 J. Stud Alcohol 114 (1990).
17 See e.g., G.C. Drew, W.P. Colquhoun, and H.A. Long, Effect of Small Doses of Alcohol on a Skill Resembling Driving, 1958 British. Medical. Journal. 993 (October 25, 1958) (researchers finding that “there is a measurable increase in mean error [on a driving simulator] as soon as there is a measurable quantity of alcohol in the blood”); H. Moskowitz and M. Burns, Effects of Alcohol on Driving Performance, 14 Alcohol Health and Research World 12 (1990) (“[c]ertain skills important for driving are impaired at 0.01 and 0.02 percent BAC or, in other works, at the lowest levels that can be measured reliably”). See also M. Valaske, A Safe-Driving Level of Blood Alcohol, 29 Pathologist 36 (March 1985) (advocating a zero-tolerance DUI law)
18 Council on Scientific Affairs, Council Report: Alcohol and the Driver, 255 Journal of the American Medical Association 522 (Jan. 24/31. 1986). See also Medical Conditions Affecting Drivers )T.Doege and A. Engleberg, ed., American Medical Association (1986)(drivers with blood alcohol concentrations of 60mg% are twice as likely to be involved in a fatal crash as a sober driver”); Council on Scientific Affairs, Council Report: Automobile-Related Inuries, 249 Journal of the American Medical Association 3216 (June 17, 1983) (“most authorities agree [that BACs of .05 or greater] cause impairment of physical and mental functioning and interfere with the task of driving vehicles safely”); H. Moskowitz and C. Robinson, Effects of Low Doses of Alcohol on Driving-Related Skills: A Review of the Evidence, National Highway Traffic Safety Administration, HS 807 280 (July 1988).
25 J. Bock, “Drunken mother drove with 5 kids,” Wausau Herald, April 2, 2004, www.wausaudailyherald.com/wdhlocal/283243560984945.shtml .