Besides being a mediator and arbitrator, an important part of my practice is also serving as GAL for children and other vulnerable folks. In this capacity, I've previously
written that under NM law DWI and vehicular endangerment of the general public does not constitute child abuse. Recently the New Mexico Court of Appeals has confirmed that a defendant is "properly convicted of child abuse" by endangerment when he drove a moving vehicle while intoxicated with a child present, even without additional indicia of unsafe driving.
In State v. Orquiz, 2012-NMCA-080 (cert granted), the Defendant was driving his vehicle with his nine-year-old daughter in it and he drove through and intersection and crashed, causing some scratches and a "busted lip" to his daughter. The officer at the scene smelled alcohol, but the Defendant stated the crash was caused by a brake failure. Later, at the hospital where his daughter was treated, Defendant admitted to that officer that he had consumed alcohol earlier that day; he failed field a sobriety test; and tests showed a blood alcohol content (BAC) of between .16 and .17, which is more than double the level permissible under New Mexico law.
Thereafter he was tried and convicted of both DWI and child abuse/endangerment. On appeal he did not challenge the DWI conviction, but contended that "the State failed to present sufficient evidence to support his separate conviction for child abuse by endangerment." Specifically, he argued the endangerment conviction should be reversed absent a provable act of unsafe driving--presumably to refute claim that the crash was due to brake failure.
The Court rejected the argument that some "specific indicia of driving in a perilous manner, or 'plus factor' is necessary." It pointed to a prior case, State v. Chavez, 2009-NMSC-035,
which held that child abuse by endangerment "is a special classification [of offense] designed to address situations where an accused's conduct exposes a child to a significant risk of harm, even though the child does not suffer a physical injury."
Admittedly, Chavez "rejected a literal reading of the endangerment statute that would 'permit prosecution for any conduct, however remote the risk, than may endanger a child's life or health.'" Accordingly, New Mexico case law holds that an endangerment claim could not be based on mere physical control of a non-moving vehicle,* which would only present a "theoretical peril." Here, however, Defendant's conviction was based on actual driving while intoxicated, established by his on-scene admissions, officer observations and the BAC results. His act of driving, moreover, "placed his child inescapably within a moving zone of danger."
The Court recognized that most prior cases of DWI/child endangerment involved "circumstances which bore additional indicia of unsafe driving, or other 'plus factors' that arose as the apparent consequence of the driver's impairment." However, none of these cases concluded a plus factor is necessary, and from a policy perspective it should not be necessary.
"DWI is a strict liability offense, which does not require any indicia of bad driving or other 'plus factor' to support a conviction ... As a matter of policy therefore, it would be inconsistent for this Court to recognize the risk and danger posed to the general public by a DWI driver, yet not extend this same level of concern and protection to a child who is an actual passenger in the DWI driver's moving vehicle."
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.
* "Driving," under New Mexico case
law, specifically includes both having actual physical control of a non-moving vehicle, and
actually driving a vehicle. See State v. Sims, 2010-NMSC-027.
