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DWI often intersects with child abuse in court cases

ALBUQUERQUE, N.M. — Sadly, the news is never short of stories about the catastrophic mix of alcohol and automobiles.

In recent discussions, we have seen DWI laws applied where a passenger aids and assists the crime by buying alcohol and encouraging his driver’s DWI behavior. We have also seen the law develop a distinction between someone who is “sleeping it off” in their vehicle and one who is occupying the car with intent to operate while intoxicated.

“What’s done to children, they will do to society.”
– Karl A. Menninger

Two recent decisions from the New Mexico Court of Appeals address the interaction between DWI and child abuse laws.

Section 66-8-102(A) New Mexico Statutes Annotated clearly states: “It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” It’s also a crime for “a person knowingly, intentionally, or negligently, and without justifiable cause, (to cause or permit) a child to be placed in a situation that may endanger the child’s life or health.”

In fact, Section 30-6-1 of our statutes makes child abuse a third-degree felony punishable by up to three years in prison if the child is not actually injured and a first-degree felony if the result is great bodily injury to the child; that’s punishable by up to eighteen years in the slammer.

In a 2011 decision, the Court of Appeals reviewed the child-abuse conviction of a “severely drunk” driver who crashed his vehicle into another car on the roadway, killing one child who was a passenger and severely injuring another. In that case, the court found that the prosecution had presented no evidence at trial that the drunk driver had any idea there were children in the other vehicle, so the Section 30-6-1 requirement that the defendant must have knowingly or negligently exposed the child to danger was not satisfied. The child-abuse conviction was overturned.

Meanwhile, a Court of Appeals decision handed down in May, 2012, establishes that a DWI conviction alone is enough to also support a conviction for child abuse under Section 30-6-1 where the defendant’s children were in the car with him. The apparent contrast between these two appellate decisions is actually simple to explain, but a bit more difficult to understand.

The law is clear that we all have a duty to exercise ordinary care to avoid injuring another. If one acts, or fails to act, in a way that a reasonably prudent person in the same circumstances would foresee as likely to cause injury, they may be found negligent.

To support a conviction for child abuse by endangerment, Section 30-6-1 requires the defendant “knowingly, intentionally, or negligently” put the child in danger. Where there is a collision with another car, the prosecution must show the defendant knew, or had reason to know, there were children in the other car when they drove drunk and got into a collision. In contrast, it is extremely unlikely, though I suppose not impossible, that a person driving his or her own car is not aware they have children on board as they proceed to commit DWI, so knowing or negligent conduct sufficient for abuse by endangerment is implied from the child’s presence in a defendant’s moving vehicle. But is it necessary to draw this distinction?

The law also establishes that our duty of ordinary care increases with the danger of the activity undertaken. In the May, 2012, decision, Judge J. Miles Hanissee noted “the compelling public safety interest in deterring individuals from driving while intoxicated” and concluded, “In light of this compelling public interest, DWI is a strict liability crime which does not require any indicia of bad driving … to support a conviction.” Given the recognized and indeed indisputable danger inherent in DWI, wouldn’t any reasonable person foresee DWI as conduct likely to cause injury? Isn’t it also reasonably foreseeable that children will be present in almost any vehicle a drunk encounters on the roadways? What if there’s a “Baby on Board” sign or the collision takes place in a school zone at 2:30 p.m.? Is a drunk who injures your kids when they collide with your car less culpable than a drunk who injures their own children? Most would agree that a potential felony child-abuse conviction in consequence furthers the “compelling public interest” in our war on DWI. The wisdom of a distinction between which car the kids are in when a drunk hurts them is something you can “Judge for Yourself.” Either way, these cases give new meaning to “You Drink. You Drive. You Lose!”

Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.

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