I need some prosecutor help. I am not a prosecutor, so when it comes to charging issues, I'm out of my league. I had a call from a HP sergeant who wants to know whether a driver who had more than one child passenger under the age of 15 in the vehicle when the driver is arrested for DWI can be charged for each passenger (i.e. three charges under 49.045) or only one charge encompassing all three passengers?

I think this is one of those FYI things that Sergeants like to know. Help will be appreciated.

Janette A

An interesting question. If the crime described a victim of a physical injury or threat of injury (e.g., intoxication assault or intoxication manslaughter, robbery), the law clearly permits a separate charge for each victim. For the child, though, there is no separate, identifiable injury that would justify separate charges.

Of course, you could describe the separate theoretical danger involved with each child. However, the offense isn't written to specifically identify that sort of possible injury.

The answer comes down to whether the Legislature intended separate offenses. Locally, we have decided that there is only one crime with the child being an enhancing element that can be pled in the alternative with multiple children.

There is no case law answer yet.

Thanks. That is what I suspected, but I wanted to ask the experts. I will let the Sergeant know.

Janette A

Our office has filed and successfully prosecuted a separate count for each child passenger. I agree with JB that the answer comes down to whether the Legislature intended separate offenses. So far, we have heard no objections at trial ...

We would likely all agree that the offense of endangering a child could be multiplied to apply to every child placed in danger. You could see DWI with child as a sort of case-specific endangering a child offense. That would make it lean toward saying the Leg intended for each child to justify a separate offense.

It's a close question. We only avoid the multiple offenses so we don't have a mass do-over should some appellate court eventually rule it would violate double jeopardy to have multiple crimes and punishments for a single episode of drunk driving with child.

Geez, how many of these are you seeing that you have thought it out in such detail?

And for offenses committed after 8/31/07, deferred adjudication is not available.

Just because you failed to prove A was a passenger or was less than 15 should not prevent the State from attempting to prove B was passenger less than 15 at a later trial. If that is true, then it seems you are dealing with separate offenses. See Bailey, 87 S.W.3d at 127 (theft from different individual). But, some courts have clearly adopted a same transaction rather than same evidence test. Even then, it seems to me that while the defendant may be driving a single automobile at a single time and place, he does so with notice of multiple child passengers and thus is choosing to commit the offense with respect to each passenger (the element which automatically makes the offense a felony). Hawkins, 6 S.W.3d at 560 deals with actual assaultive conduct rather than threatened harm, so the answer may be different. We can probably all agree with this quote: "Case[s] involving the arcane principles of double jeopardy and collateral estoppel [are] not susceptible of bright-letter law or black-letter law; the areas are most often gray and dimly to be seen."

I tend to favor the idea that the legislature made it an offense to drive drunk with a child passenger because the intent is to protect the individual child that is in the car, otherwise the offense would have been worded to prohibit DWI when the vehicle is occupied by "a person or persons" under 15. For example, in reckless driving, endangering "persons" means you can't get multiple convictios for one event of reckless driving. See Steels v. State, 170 S.W.3d 765. This statute is worded differently. Therefore the risk that the offense is designed to prevent from occurring is multiplied by the number of children in the car, because putting two children and risk is worse than putting one at risk.

I think that each child passenger would be an allowable unit of prosecution. For example, if the Def. was driving a school bus with 45 passengers under 15, would you only be able to prosecute ONE case? OR, if you choose to prosecute as Endangering, you could clearly prosecute each case individually - so is there any CLEAR indication that the leg. intended that only ONE offense be described regardless of the number of assengers under 15? -- Not that I can find. If the rule for a bus would be that each child passenger is a separate victim, then the same rule should apply when there are 2 passengers.

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Originally posted by Larry L:
If the rule for a bus would be that each child passenger is a separate victim, then the same rule should apply when there are 2 passengers.

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There is a case on endangering (multiple counts arising from a number of children on a bus all subjected to the same conduct) where that was just the scenario, although I don't think the double jeopardy issue was raised in the case.