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.

Sounds like a much better charge would be child endangerment.

DWI is an intoxication based offense. I think its a huge stretch to argue that someone is a party to another person's intoxication.

There's no question that I could go with endangering a child. But why not a DWI offense too?

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 
       offense;  and
  (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 
       offense;
  (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;  
       or
  (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 
       the offense.

(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?

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.

Husband fetched his drunk wife from the police department and dropped her and their child back at her car.

Isn't it reasonable to infer from these overt acts that this husband's intent was that his wife commit a SJ Felony DWI w/Child?

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?

But Strong v. State, 87 S.W.3d 206 (Tex. App.--Dallas 2002) held that attempted DWI is not a legally cognizable offense.

I don't think that necessarily negates potential party liability, but I wanted to mention that because the idea of attempted DWI has been discussed.

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.

I think I like endangering, but I'm in warranties and repairs rather than sales.

The Lizard Man is innocent!

quote:

---

Originally posted by Jeff Swain:
There's no question that I could go with endangering a child. But why not a DWI offense too?

---

Because it's not worth 4 years of litigation?

Shannon,
Isn't that why we have an appellate section? So we can argue the case 1 time to a trial court judge and let the appellate guy hash out all of the esoteric details for years to come?

FOR THE LOVE OF ALL THAT IS GOOD AND HOLY NOOOOOOOOOOOO!!!!!!!!!

Jeff, that answer isn't going to endear you to your local appellate section.

I figured I could draw you appellate-types offsides.