I've got a DWI child passenger case where the police gave FST's to a woman, determined that she was extremely PI, took her from a grocery store to the police dept., issued her a PI ticket, and released her and her 8-YOA grandson to hubby at the police dept. Hubby takes her back to the grocery store, drops her and the kid off, and drives away. When she is stopped moments later, she fails FST's again and seems equally intoxicated.
My question is, does anyone see any problems or issues with charging hubby as a party to DWI with a child passenger? I've never charged one of these before, but these facts really seem to support the charge, in my view.
15.02. CRIMINAL CONSPIRACY.
(a) A person commits criminal conspiracy if,
with intent that a felony be committed:
(1) he agrees with one or more persons that
they or one or more of them engage in
conduct that would constitute the
(2) he or one or more of them performs an
overt act in pursuance of the agreement.
(b) An agreement constituting a conspiracy
may be inferred from acts of the parties.
(c) It is no defense to prosecution for
criminal conspiracy that:
(1) one or more of the coconspirators is not
criminally responsible for the object
(2) one or more of the coconspirators has
been acquitted, so long as two or more
coconspirators have not been acquitted;
(3) one or more of the coconspirators has
not been prosecuted or convicted, has
been convicted of a different offense,
or is immune from prosecution;
(4) the actor belongs to a class of persons
that by definition of the object offense
is legally incapable of committing the
object offense in an individual capacity;
(5) the object offense was actually committed.
(d) An offense under this section is one
category lower than the most serious felony
that is the object of the conspiracy, and
if the most serious felony that is the object
of the conspiracy is a state jail felony,
the offense is a Class A misdemeanor.
[This message was edited by AlexLayman on 05-29-08 at .]
I think I remember reading that "attempted dwi" is not a legitimate charge so I dunno about conspiracy to dwi.
It might have some "slippery slope" concerns... if you can conspire to dwi then why not charge all the adult passengers in the vehicle and dismiss in exchange for testimony against the driver... might as well charge the barkeeper too.
It would give new meaning to the phrase, "friends don't let friends drive drunk." I just don't think you can reasonably say that the person has the same criminal culpability as the driver, just because they allowed them to drive off.
AlexLayman, conspiracy is a different statute from law of parties.
I mentioned attempt because I noticed it in 15.01 just above the 15.02 conspiracy that I posted above.
Below is the text of the law of parties but I'm thinking maybe the conspiracy would be easier to prove for the facts as described above because of the presumptions.
7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.
(a) A person is criminally responsible for an offense
committed by the conduct of another if:
(1) acting with the kind of culpability required
for the offense, he causes or aids an innocent
or nonresponsible person to engage in conduct
prohibited by the definition of the offense;
(2) acting with intent to promote or assist the
commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid
the other person to commit the offense; or
(3) having a legal duty to prevent commission of
the offense and acting with intent to promote
or assist its commission, he fails to make a
reasonable effort to prevent commission of
(b) If, in the attempt to carry out a conspiracy to
commit one felony, another felony is committed
by one of the conspirators, all conspirators are
guilty of the felony actually committed, though
having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose
and was one that should have been anticipated as
a result of the carrying out of the conspiracy.
I agree with Adam, it's hard to be a party to someone else's intoxication, but what about the fact that intoxication offenses have no intent? But the secondary party must have at least some level of intent--would that be a problem? The more I think about it....the guy clearly left the child with the drunk person, knowing that the drunk person was in fact drunk....that's pretty much knowingly and intentionally.
The more I think about it, the more I think the intent is there...he's sober and still lets the drunk person take the child in the car.
Does he have a legal duty to prevent that from occurring?
Is it encouraging or helping to leave her at the car without either encouraging the drinking or the driving? Is it encouraging to leave no other option?
Posts: 514 | Location: Del Rio, Texas | Registered: April 17, 2006
DWI being a statute that does not have a requisite mental state, could you have an attempted DWI for a would-be driver who does not actually drive intoxicated but attempted to do so? If so, could a person be charged as a party for their role in a DWI under a similar theory?
Does the knowledge requirement regarding a child in a DWI with a child add a mental state requirement that would allow a person to be charged as a party?
How would you operate a motor vehicle as a party, and not as a conspirator? I don't think that the organized criminal activities statute applies to DWI, so so much for conspiracy.
Any more issues? Long story short, this sounds like a case to make.
But he has to be a party to the offense, not just to one of the elements. There's no question he aided her in operating the vehicle. But does he really aid her in becoming intoxicated, or in driving while intoxicated? Its hard to say.
I know that DWI w/ child is a separate statute and offense from DWI, but it in effect works just like an enhancement. The crux of the offense is being intoxicated and making the choice to drive. So let's assume there was no child. If I know my friend is too drunk to drive and I hand him the keys and let him make the choice to drive, am I a party to his DWI? Unless I forced him to drink also I just don't think so. And unless we agreed ahead of time that he was going to drink so that he could go and commit the offense of DWI, I don't think there's a conspiracy argument either.
Look, the whole point of the child enhancement in a DWI is that it places the child in imminent danger. Under the Abandoning/endangering a child statute it is a second degree felony if a person abandons a child under circumstances that a reasonable person would believe would place the child in imminent danger of death, bodily injury, etc.. That's exactly what he did, so you've got a 2nd degree felony. Why charge him as a party to a state jail felony? If you are talking about charging him with both than ask whether you would charge the woman with both DWI w/ child and endangering. Is it really necessary?
He knew she was drunk since he just fetched her from the police department after she was picked up for PI. Instead of driving her and the child home or somewhere safe, the husband dropped them back at her car and she proceeded to drive.
The conspiracy rule allows you to infer from his actions and, to me, these actions say he intended her to drive drunk with the child.
I don't think it is necessary that the husband be a party to the intoxication specifically, in the sense that he intended for her to become intoxicated, by giving her intoxicants or some such. DWI does not require that a person become intoxicated, it requires proof that the person was intoxicated at the time. If he knew that she was intoxicated, and he intended that she drive a car, and he put her behind the wheel, then why is he not a party to the crime? Unless the evidence indicates that he did not know she was intoxicated (which I suppose would be his argument), then he clearly intended for her to drive in that state and commit the crime.
Posts: 622 | Location: San Marcos | Registered: November 13, 2003