Brief facts: Dad of two children, ages 3 and 9, gets his sister to pick up the kids from a relative and bring them back to dad's house; the trip is about 75 miles. Dad knows that his sister has 3 DWI convictions, the most recent a felony about 6 years ago (Sister has completed probation and been discharged). On the way to Dad's house sister is involved in a crash (runs off the road, vehicle rolls over, blood sample of sister shows BAC of .097).

Looking at charging Dad with 1)Injury to a child by omission (failed to protect children from sister when he knew her history or 2) Endangering a child. As a practical matter the evidence would be virtually the same for either charge. However one is a SJF and the other is a 3rd degree. So the question is, can both offenses be charged in the same indictment? Can Dad be convicted of both offenses? It looks to me like there could be an issue even though the elements are worded differently, the same conduct could result in a conviction for either offense. It alos looks like there would be many scenarios where injury by omission and endangering would both "fit". Is there a jeopardy problem if we proceed on one offense, then the other offense is charged? Any help/thoughts would be greatly appreciated.

If those are your only facts, I'm skeptical as to whether you have a case. Unless Dad had specific knowledge that she was going to drink or had been drinking on this particular occasion, is it too much to impute criminal responsibility? After all, the law released her from supervision, presumably on the evidence that she had complied with her conditions of supervisions.

If she had still been on probation, perhaps even with a condition of not driving with kids in the car and Dad knew about that, you might have something to go on. But, to say that Dad is endangering a child simply because he knew the driver had a history of drunk driving, I'm skeptical that an appellate court would say that is sufficient to infer criminal responsibility.

Anyone been trying this sort of case? On the other hand, if the sister was a registered sex offender, could Dad be criminally liable if he let her have access to the children? Is that any more far-fetched?

JB - Thanks for your reply. This may be a case that the grand jury should decide on. I agree that the facts are weak - but have had grand juries in the past want to know (when they heard the case against the driver for DWI & injury to child) what would be done against the Dad who put the kids in the situation. I appreciate the analogy to a sex offender - looks like a jury (or court of appeals) would hesitate to impute sufficient knowledge to the parent to uphold a conviction.

Might be something for CPS, though, in a civil case.