OK, I know, I know.......With all the murders and robberies and REALLY serious crimes, parents letting their kiddos ride in a car without a safety belt may seem pretty minor. But for those of you who have found yourselfs in JP court on a trial for a defendant charged with failure to restrain a child, I have a question. Consider this scenario: parent has an SUV or van and the rear seats either fold down or can be removed. So parent either folds down the seat or removes it, throws a blanket or mattress on the floor and permits little Johnny or Janey to lie on the mattress or blanket. Kid is over four but under 15. The statute says that the kid has to be restarined by a safety belt if the kid is occupying a seat equipped with a safety belt. Well, there was a seat--until it got folded down or removed. Do you think this is an offense? I've had a couple of troopers ask this along with a couple of judges. Everyone is looking at the language about occupying a seat.

Thanks

P.S. I said it was a pretty silly question

Logic and common sense would say that this should be a charge. To find otherwise would mean that all a person would have to do to defeat the seat belt law is to remove seats. A contrary interpretation would defeat the purpose of the law which is to protect those who cannot protect themselves.

If a Defense Lawyer or Defendant raises the issue and/or demands a jury trial when the citation arose out the operation of the vehicle at highway speeds (or greater, i.e. a speeding stop), tell them they may be right on the technical grounds that the conduct doesn't fit the offense charged.

Tell them that solves a problem for you and ask them if they have any input for the grand jury when you present it as a felony offense under Section 22.041, Endangering a Child. The issue under that charge would be "imminent danger" and would be driven by facts - speeds, traffic, erratic operation, road conditions, etc. Make sure that you have solid evidence that the defendant acted recklessly or with criminal negligence.

However, before coming down like a hammer one should re-read ATWATER v. CITY OF LAGO VISTA, 195 F.3d 242 (5th Cir. 1999) and the newspaper coverage arising out of it. The earlier decision survives only a dissent at 165 F.3d 380 but the language is telling:

"Gail Atwater and her family are long-term residents of Lago Vista, Texas, a suburb of Austin. She is a full-time mother and
her husband is an emergency room physician at a local hospital. On the pleasant spring afternoon of March 26, 1997, as Gail Atwater was driving her children home after their soccer practice
at 15 miles per hour through her residential neighborhood, she violated Section 545.413 of the Texas Transportation Code. Neither Gail Atwater, her four-year-old son nor her six-year-old
daughter were wearing their seat belts. Detecting this breach of the peace and dignity of the state, Lago Vista police officer, Bart Turek, set about to protect the community from the rpetration of such a crime. In doing so, he brought to bear the full panoply of means available to accomplish his goal � verbal
abuse, handcuffs, placing Gail Atwater under custodial arrest, and hauling her to the local police station. It was not a proud moment for the City of Lago Vista."

Keep the moments proud for your police agencies!

If your enforcement of this law encourages the defendant to belt their child in the future, whether you win or lose the case, then the State of Texas has won because we don't need any more dead or injured children.

I agree with Alpert's post on the subject.

I dunno, I've asked some pretty silly questions on here.

I don't know much about traffic code enforcement, but I'm all for law and order. People shouldn't thwart the safety systems of their cars when kids are involved. The Fifth Circuit's paternalistic dicta aside, "poor Mrs. Atwater" should know that a child's skull hitting something at 15 miles per hour can be deadly.

Janette, maybe your troopers should carry photos of all the maimed kids they encounter who weren't wearing seatbelts and pass them out with the seatbelt tickets.

In a trial for endangering a child I can just see the defense when you set out to prove the danger element with an expert witness with a few hundred pictures to show a jury of unrestrained children after a sudden stop in a car. I have some in dead files ... Any long serving trooper or police officer can talk on the subject as an expert by experience, but no defense lawyer will wish to listen.

Before intoxication assault was on the books I sent a woman to prison for Injury to a Child by Omission (violation of statutory duty, seat belt) who was driving drunk with two unrestrained children in her car as she drove it into a tree - one little girl had broken neck and the other major head injuries - the pictures were a winner but heartbreaking ....

Let them tell it to the judge.

I agree with the seriousness of the offense. I think 75 percent or so of people ejected from cars in accidents were killed. The seat belt law needs a lot of tweeking. They define the seatbelt as being "secured" as the definition found in the manufacturer's instructions. Does that mean that a prosecutor actually has to enter into evidence the manufacturer's instructions to avoid being directed out?

Just in case you need incentive to prosecute, check out these NHTSA stats:

Unintentional injuries are the leading cause of childhood death (more than all those horrible criminal cases that we prosecute). Motor vehicle crashes (MVC) account for nearly 42% of all unintentional childhood injury-related deaths (for kids 0-14). An average of 7 US children (0-14) were killed and 866 were injured each day in MVC in 1998. During 1998, 1772 children ages 0-14 died as vehicle occupants -- 61% of those were unrestrained.

For those not swayed by the emotional aspect of those stats, the total annual cost of MVC deaths and injuries for children (0-14) exceeds $36 billion.

FYI -- NHTSA & the American Academy of Pediatrics recommend use of a car safety seat or booster seat until a child reaches a weight of 80 pounds (this is because seat belts are designed for 170 pound adults). Also, children should not ride in the front seat unless they at least are 13 years old.

Good inspiring thread.