As a family mediator and guardian ad litem, I keep abreast of child abuse, neglect and endangerment cases. The New Mexico Court of Appeals has recently reviewed whether control of a vehicle while intoxicated can form the grounds for a felony child abuse conviction. See State v. Etsitty, 2012-NMCA-012. After analysis the Court concluded it could not.
The Defendant and his family, including a four year old, were in their truck getting ready to proceed to the store. Defendant was visibly under the influence, and admitted the intent to drive. After failing the field sobriety investigation, he was arrested and breathalized (he blew over two times the legal limit, at .15).
Thereafter he was charged with both driving while intoxicated (DWI) and child endangerment, and convicted of both. In his appeal, defendant did not challenge the DUI conviction based only on possession of a vehicle rather than actual driving. Indeed, NM law specifically provides for conviction under such circumstances, provided there is (a) actual v. potential control over the vehicle and (b) a general intent to drive so as to pose a real danger. See State v. Sims, 2010-NMSC-027, para. 4.
However, the defendant argued that the misdemeanor DWI conviction did not constitute substantial evidence for the child endangerment conviction. The court concluded that "[a]llowing actual physical control without requiring the act of riving to operate as a basis for a child abuse by endangerment charge effectively turns the child abuse charge into an attempted crime," and "would create liability for an inchoate crime where none was charged or otherwise shown to have been intended by the Legislature," unlike with DWI presumably.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
