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If multiple children in car, allege separate paragraphs or counts?
Paragraphs are for different manner and means. If it could be charged as an indictment per child, (which it can) you use counts.
Because the cases occurred at the same time, you'll still only get one punishment out of it as they will run concurrently.
The gravaman of the crime is driving while intoxicated. The presence of the child is an enhancing fact. I would not seek separate convictions for each child. I would plead a single count and simply allege the children in the alternative.
For a peek into the history of the creation of the statute, revisit, this 2001 thread.
But it's an entirely separate code section. Moreover, the child passenger section appears by itself without reference to any enhancing effect (like you see in 49.04 or 49.09). It reads like another element. (49.09 defines "offenses relating to the operating of a motor vehicle while intoxicated" as including both 49.04 and 49.045.)
Moreover, in the open container section, the Legislature went out of their way to say that possession of more than one open container still amounts to a single offense. This section doesn't say that.
Still, if "a passenger" is ambiguous and can be read to mean either "each" or "at least one", the legislative history would seem to step in in favor of a single offense making paragraphs the appropriate choice. (Lest you think this is just lawyerly parsing, the indefinite article can mean both "one" and "any".)
Personally, I favor the conservative approach of pleading paragraphs instead of counts because practically speaking you end up with the same punishment and the courts are less likely to see you as overreaching. It's a strategy call on an under-considered and relatively new statute. (So in answer to the original poster's unstated question, no there isn't some case you're overlooking.)
Note, read Bigon v. State, 2008 WL 141929. It was the only case I found (in my limited search) dealing with felony DWI with a child passenger. It has some troubling language, although it deals with a completely different legal issue and fact situation.
[This message was edited by Fresno Bob on 05-14-08 at .]
All reasonable arguments. If the child element involved any injury, I think you could have a stronger argument. For offenses, like intoxication manslaughter and intoxication assault, that involve specific injury to a victim, the courts have agreed that each victim justifies a separate offense.
I suppose the argument could be made that a child should not have to be injured to receive protection by separate offenses for each victim.
I totally agree. The passive nature of the passenger language is one of the things that makes it all so screwy.
IMHO - if you do something that endangers multiple children it is multiple counts of endagering a child. Same thing w/ DWI w/ child.
It comes down to what the courts think the Legislature intended. Personally, I think they intended to make a single DWI a higher punishment because of the presence of a child. Without any injury, I do not think they intended to create multiple DWI cases.
Looked at from another perspective, I don't think the Legislature anticipated that a single DWI arrest could result in the sort of multiple convictions (two or more) that would make the next DWI a felony.
Without the presence of any injury, the presence of children simply elevates a misdemeanor DWI to a felony. For DWI's with injury, the Legislature clearly sought to identify the crime as something other than a DWI -- hence the titles intoxication manslaughter and intoxication assault rather than DWI with injury.
If you do paragraphs, can the defense force you to elect?
Don't do paragraphs, just list the names of the children in the alternative. But, no, defense can't force you to elect. Election goes to multiple offenses. You are saying there is only one offense, just multiple options for the child.
Because a DWI conviction used as a prior doesn't have to be in sequence with a second, is it reaching then to charge counts as I've suggested?
With two children in the car and two charges, you've got two convictions. Are they then available for use to enhance any subsequent DWI to a 3rd degree felony?
If so, is this reaching? Is this over doing it?
Seems like there are good arguments on either side. How fortunate for the original poster.
You're not prosecuting a drunk bus driver are you?
[This message was edited by David Newell on 05-14-08 at .]
I don't think it's reaching, but maybe the court would. The CCA just had an opinion that belied a distrust of overly zealous prosecutors (granted that was a jury charge issue where the state didn't request a lesser, not a charging issue). I certainly don't think they're pre-disposed to distrust. It's just a concern.
And honestly, I hadn't thought of driving with more than one child being an automatic, two-prior convictions felony the next time. That does seem to provide a powerful reason to use counts.
Setting aside the legal arguments, why reach for two convictions and initiate all the litigation? Can't you accomplish what society needs with a single felony?
I have looked at this issue in Tarrant County and I opted for paragraphs for some of the same reasons previosuly stated.
I'm drawn to the idea of making sure the defendant is eligible for a felony on the next trip, especially in a county where juries are rarely law enforcement oriented.
I do see your point, though. Bi, I guess it comes down to strategy and discretion. I hope we answered your question.
I would compare this to a situation in which the defendant points a gun at a group of 3 or 4 children. For the posters above who said "paragraphs" - would your answer be the same under these facts? If not, what is the real difference since there is "danger" but no actual harm, as in the DWI with multiple child scenario? I would be surprised if the court would consider multiple counts "reaching" in a gun pointing case, so why not a DWI with child case? Just because this is a relatively new offense (as opposed to an enhancement of an existing offense, which would have been just as easy from a legislative perspective) does not mean that we should shy away from prosecuting it as it is written - and in my opinion that means that you CAN charge a separate count for each victim / child. Would you charge one offense with separate paragraphs if it was a DWI school bus driver with 40 kids on his bus? If not, why is that any different than just having 2 kids in the car?
Dang good arguments. Still, my approach to such situations is to make conservative decisions that reduce the likelihood of appellate litigation.
Ultimately, I think the CCA would say in the aggravated assault situation that the gravaman of the offense is the threat directed at an individual or individuals. The gravaman of a DWI is still the singular act of drunk driving that happens to have a related enhancing fact.
Intoxication assault and intoxication manslaughter elevate a DWI to something else by focusing more attention on the significance of an injury, thereby making each injured person a separate crime victim.
On the other hand, I wouldn't file multiple charges on one felon who was in possession of several firearms.
I would. But folks often accuse me of being surly.
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