MADD is interested in a bill that would permit prosecution of an enhanced DWI when a child is in the car. Question is: how to do it?

Currently, some offices prosecute that as endangering a child, but you don't get a DWI conviction. My office requires a conviction for the endangering and a DWI, but some defense attorneys raise a double jeopardy issue.

At least one court of appeals has said (in an unpublished opinion) that it is not DJ, but you never know.

So, what is the best way to handle this with legislation?

You could add a subsection to PC Sec. 49.04 similar to Sec. 49.04 (c) to increase the minimum punishment or to elevate it to a Class A misdemeanor if a child under a certain age is a passenger in the motor vehicle. Otherwise, you could delete Sec. 49.04 (c) and add a new section making the open container penalty and this new child passenger law applicable to all offenses in Chapter 49. What punishment is sought? An increased minimum or higher category of punishment?

If you tack enough of the elements of 22.041 onto 49.04(c), then you will only more clearly be creating a DJ problem or a "more specific offense" problem or both. Fundamentally you have to decide whether the DWI is more serious just because you have a minor passenger (or open container or any other surrounding circumstance). I am sure in MADD's mind it clearly is more serious, but is it really necessary to have a completely separate range of punishment and will juries agree? If you don't make the enhanced DWI offense a state jail felony, then why bother, since you have that option through prosecution of an endangering offense now (and you do not necessarily have to prove intoxication by the same standards as under 49.04). While it might be nice to eliminate "imminence" of the danger as an element, if the bodily injury is not imminent how likely is it you will get a greater penalty actually assessed? Maybe "well enough" should be left alone.

As a matter of law, it should be a more serious crime to drive around intoxicated with a child in the car, regardless whether the driver is about to hit anyone or not. A child is helpless to decide whether or not to get in the car.

At the same time, I don't want to make the Penal Code more complicated or less rational.

How about simply saying that the conduct of driving while intoxicated with a child in the car is endangering a child, and make such a conviction available for consideration as a prior conviction under Chapter 49?

I think the safest thing to do is leave it alone. We have also charged it as DWI and Endangering a Child in my office with no appellate problems (knock wood). The DWI enhancement scheme is complicated enough. What is really need is a CPS referral that might ultimately lead to the child being removed from the home. Anyone who drives drunk with a child in the car has made it pretty clear that they are unfit to be a parent.

Still seems kind of like theft to me. If the conduct is already covered by the endangering statute, why add a new paragraph creating a more specific offense or means of commission? If you prove up the DWI as the endangering conduct, but don't file a separate DWI charge, seems like you are electing not to place much emphasis on that aspect of the case. But, amending 49.09(b) to include particular types of convictions under 22.041 seems reasonable. I am just reticent about the need to further define the "conduct that places". While the kid has no choice, neither do the other persons endangered by this type of conduct.

Richard, would you be more interested in such a bill if it also cleaned up the language about what prior convictions are available for use in enhancing a DWI?

If MADD wants to push a statute that won't implicate jeopardy, etc., amend the forfeiture statute - a passenger under the age of 17 subjects the vehicle to forfeiture to the agency (!) making the arrest even if it is a misdemeanor arrest for DWI.

Let the opponents explain why an instrumentality that put a child at such risk should be left in the hands of the actor ... if CPS doesn't act.

(and while they are at it, clean up the statute about forfeiting vehicles used to commit intoxication offenses to make it a statute that is used - has anyone out there forfeited a vehicle used in an intoxication offense ... why not, as if I can't guess).

I think I found someone to sponsor such a bill:

http://www.austin360.com/statesman/editions/tuesday/metro_state_1.html

Hey, I want an enhancement when I am on a road with a drunk and I've got MY kids in the car. Why does the drunk's kids get more protection than MY kids?

I say if we care about kids getting killed by DWI drivers, then raise the penalties for all DWI's to protect everyone's kids....

I now like the idea of amending Sec. 22.041 to include DWI with a child in the motor vehicle. The problem with the current statute is proving imminent danger when there are no bad driving facts. A change in this law would make it a lot easier to prosecute.

My version of enhancement would simplify the whole process by requiring two priors to make the DWI a felony regardless of how old the priors were so long as they are final convictions. I also want mandatory blood for all Felony DWI arrests. If I get both I may reconsider my position. Is it a deal John?

I will be glad to push for the package, Richard. I have been contacted by MADD and asked for the best way to get DWI + KIDS passed, along with any other suggestions for change. They have a sponsor that wants to file a bill. I very much like your suggestions and think the time may be good for them.

After all, we have no time limit for prior convictions for theft, assault, protective orders, stalking, and evading.

And what's the good argument for no mandatory blood draws? The Court of Criminal Appeals just signed off on search warrants for the same thing.

FYI, here's the DWI/kid enhancement bill that got little or no attention last session:

HB 1699

Bumping the penalty range from Class B to Class A is really just window dressing. How often will you get a defendant to plead guilty just because the maximum has gone from 6 months to 12 months? How often will he agree to plead guilty to something more than 6 months just because he might get more with a trial? The only effective enhancement is to increase the minimum sentence (and there is no minimum for a Class A). If you have to go to trial to make any meaningful difference in the punishment actually assessed, then at least raise the stakes to a state jail felony. Does any other state enhance the penalty for DWI due to presence of a child in the vehicle?

I recently had a case in which the female defendant was DWI and "driving" with her six year old son on her lap because she claimed that he could steer better than she could in her intoxicated state.
This is her 2d DWI so the CA will have jurisdiction on the DWI but I would love to see her DWI enhanced for this conduct in addition to the endangering.

I agree that the D.W.I. statutes are enough of a Rubic's Cube. I have always treated such cases harsher than the typical D.W.I., usually requiring jail time as a condition of probation or just not offering probation. Maybe the answer may be to treat it like an open container or deadly weapon and require manditory non-probatable jail time, whether as a condition of probation or as straight time. This "affirmative finding" would be much more versitile in the plea bargaining process and could be abandoned if it would produce a foolish, unjust result. I just feel making this a jurisdictional charging decision would be cumbersome.

If Bradley can get the changes I need sponsored and help steer them through the legislature the least I can do is sign onto a child + dwi enhancement scheme. What if we just made it a special issue the answer to with would require the offender to have an interlock on their car in order to drive it . . forever.

Since we already have a zero tolerance law on the books FOR minors, why not have a separate class B offense for driving with any detectable amount of alcohol in the system, with a person under the age of, say, 18 in the vehicle?

OK, here is what I like:

1) Punishment for intoxication offense increases one category or class if defendant operates vehicle with child as passenger (assuming no SBI or death of the child);

2) No time limit on prior intoxication convictions (as a backup, how about a flat 20 year limit going back from date of new offense?);

3) Mandatory blood test if one or more prior DWI convictions;

4) Presumption of intoxication at time of offense if breath/blood results .08 or more within 2 hours of offense.