A leading cause of traffic death for America’s children: being trapped in a car with an impaired driver.
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CHILD ENDANGERMENT REPORT
INSIDE
› › A leading cause of traffic death for America’s children: being trapped in a car with an impaired driver. ›› Divorced parents face legal challenges, including subjecting themselves to civil contempt actions if they refuse visitation privileges to protect their children from an impaired caregiver. ›› Many victims do not have the financial resources to seek relief in the civil court system.
A PERSONAL NOTE
Dear Reader,
Carlie McDonald
There are many reasons why you may be reading this important document. You may be a researcher examining current data and trends in child endangerment. You may be a professional in the criminal justice realm, an attorney representing clients, a judge seeking solutions, or a child protection advocate looking for better tools to keep children safe. You may be a parent facing your greatest fear or trying to make sense of your worst nightmare coming to life. In these pages you will find you are not alone. As a state trooper I know the losses. Having seen absolute miracles of children surviving tremendous crashes in properly secured occupant restraints, I also know what it feels like to have life slipping away from a three year old as I hold him in my arms and try in vain to keep him alive. As a parent I continually grieve the loss of my daughter, tragically killed by the pure negligence of her driver, who was drunk. As a traffic safety advocate, my work includes contributions not only to this Child Endangerment Report but also membership on the first panel of experts completing its work in 2002. Of note, the work you’ll see in this report includes studies reflecting: • 64% of children killed in drunk driving crashes occurred while they were riding with the drinking driver in the 11 years 1985 to 1996 (JAMA, May 2000) • 1997 to 2001 that percentage was 68% • The 64% statistic was repeated in a CDC study looking at years 2000 to 2009 • A child killed in a crash in which their own driver was impaired ranks as a leading cause of traffic death for America’s children Regardless of the reason you are reading this report, please know that work in this area is far from finished. We achieved better numbers for the year of 2016 at 54%, but that was a single year and clearly we are not done. Child endangerment connected to impaired driving is, and has been, a persistent and ongoing challenge for a long time. We can change this behavior. We must protect our children. Progress only comes if we act, and we encourage your help. Please consider the recommendations and solutions that follow in this report.
Killed by a drunk driver, New Year’s Day, 1998
Child Endangerment Timeline
Studies continue to show that the majority of child deaths in drunk driving crashes are caused by the child’s own drinking driver.
1985
64%
1996
68%
2000
64%
2009
This still ranks as a leading cause of death for children in the United States.
2016
54%
Yours in safety,
Lt. Carl McDonald Wyoming Highway Patrol, Ret.
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TABLE OF CONTENTS
I.
EXECUTIVE SUMMARY
II.
OVERVIEW OF CHILD ENDANGERMENT
III.
SUMMARY OF 2004 REPORT
IV.
UPDATES SINCE LAST REPORT
V.
PANEL OUTCOMES & RECOMMENDATIONS
VI.
MOVING FORWARD
VII.
EXPERT PANEL MEMBERS
VIII.
GLOSSARY
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I.
EXECUTIVE SUMMARY
In 2002, Mothers Against Drunk Driving (MADD) twice convened a panel of experts to develop practical policy recommendations for one of the nation’s most pressing child endangerment problems: children riding in vehicles with impaired drivers. Recommendations were ultimately outlined in the 2004 Child Endangerment Report, Every Child Deserves a Designated Driver. Most states now have endangerment statutes. Forty-six states (an increase from 35 in 2004) and the District of Columbia currently have statutes that create special sanctions in cases of driving under the influence/driving while intoxicated (DUI/DWI) while the offender is transporting a child. Seven states treat the criminal penalty as a felony. Eight states have yet to make modifications to their laws to better safeguard children. Despite these laws, child deaths caused by impaired driving continue to be a devastating but wholly preventable national tragedy. Prior to the convening of the first panel of experts and during the five-year period of 1997-2001, 1,985 child passengers died and an estimated 87,226 were injured in alcohol-related crashes. Of these, 68 percent of the deaths and 38 percent of the injuries occurred among children who were riding in the same vehicle with the drinking driver. Only 29 percent were known to have been restrained (restraint use was unknown for 9 percent of child passenger deaths). 1 Fifteen years later, in 2016, of the 1,233 children killed in traffic crashes, 214 children (17 percent) were killed in alcohol-impaired driving crashes. Of these 214 deaths, 54 percent were passengers of vehicles with alcohol-impaired drivers, and 46 percent of these children were unrestrained. Recognizing the importance of the research and efforts to protect children from being endangered by impaired drivers, MADD convened a present-day panel of experts with support from the National Highway Traffic Safety Administration (NHTSA). Their job was to identify the problem and status of child endangerment in the United States as it applies to impaired driving and to examine if enhancing penalties has been effective and if they are still appropriate for future support. The panel of experts offered specific knowledge and expertise and helped to identify possible solutions. Issues related to child endangerment were examined from legislative, law enforcement, judicial/prosecutorial, child protective service agencies, public awareness, and victim perspectives. This report reflects the results of the 2017 Child Endangerment Expert Panel and is an update to the 2004 Child Endangerment Report, Every Child Deserves a Designated Driver. While some considerations are consistent with the original report, this report provides an updated review of the issue and includes revised recommendations that address the current state of child endangerment by impaired drivers.
1997-2001 drunk driving child fatalities
397 per year avg.
68%
due to drunk driving child endangerment
2016 drunk driving child fatalities 214
54%
due to drunk driving child endangerment
1 2004 MADD Child Endangerment Report
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The 2017 Child Endangerment Expert Panel found that the following considerations remain consistent since the last report: • Cases are not being properly charged, resulting in a lack of prosecution. • Cases that are charged are often plea-bargained down or dismissed. • Reports made to child protective service agencies are not being documented or investigated. • There is a general lack of public awareness of the seriousness of the problem. • Divorced parents confronted with the problem of an ex-spouse who drives while impaired face legal challenges, including subjecting themselves to civil contempt actions if they refuse visitation privileges to protect their children. • Many victims do not have the financial resources to seek relief in the civil court system. • Current state DUI/DWI child endangerment laws are complex and vary greatly from state to state, making enforcement and prosecution a challenge. • A uniform age of children should be established for when the laws apply. • There is no clear consensus on whether separate child endangerment statutes or enhanced penalties under existing DUI/DWI law is better. • Consider minimum mandatory penalties for violations of child endangerment laws. Additionally, since the last report, drugged driving has become a serious concern through abuse of legal and illegal drugs. Nine states and D.C. have passed laws allowing recreational marijuana use, and 29 states allow medical marijuana use. Along with marijuana, prescription drugs are commonly linked to drugged driving crashes. 2 According to the 2016 National Survey on Drug Use and Health (NSDUH), 20.7 million people age 16 or older drove under the influence of alcohol in the past year and 11.8 million drove under the influence of illicit drugs. Another important consideration in regard to child deaths caused by impaired driving is the lack of proper safety age-appropriate restraints (a seat belt or child safety seat), since drinking drivers are much less likely to make sure a child is properly restrained. Specifically, in fatal crashes, drinking drivers had properly restrained their children only 18 percent of the time, compared to 30.5 percent for sober drivers. Recommendations from the 2017 Child Endangerment Panel include: • Adoption of Leandra’s Law as a model law for state statutes • Mandatory interlocks for ALL first-time offenders • Formal finding of dismissal by prosecutors • Mandatory reporting of arrests immediately and use of a central database • No-refusal laws • Lower blood alcohol content threshold for child endangerment convictions • Improved age-appropriate restraint laws • Recognition of child endangerment as abuse and Child Protective Service agency notification • Mandatory provision in custody agreements that prohibits drunk driving endangerment with sanctions • Increased funding for national roadside surveys
9 states and DC allow recreational marijuana use
29 states allow medicinal marijuana use
Sober drivers are nearly twice as likely
to properly restrain a child passenger
2“ C Berning, A., Compton, R., & Wochinger, K. (2015, February). Results of the 2013–2014 National Roadside Survey of alcohol and drug use by drivers. (Traffic Safety Facts Research Note. Report No. DOT HS 812 118). Washington, DC: National Highway Traffic Safety Administration
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• Increased formal training sessions on child endangerment for law enforcement • Increased high-visibility enforcement • Law enforcement briefings from family services and prosecutors • Proper and mandatory documentation and reporting of child endangerment • Increased law enforcement recognition • Training for prosecutors, judges and attorneys • Traffic safety resource prosecutors
• Provide sample case packets for attorneys • Continued and increased court monitoring • Increased public awareness • Funding for additional research • Change the definition of a child to age 16 and under
Since the original Child Endangerment Panel convened in 2002, motor vehicle crashes continue to outrank all other injuries and diseases as the major cause of death for children ages 1 and above. The Centers for Disease Control found that one in five deaths of child passengers are caused by drunk drivers 3 and most often (64 percent of the time 4 ), they are passengers in the impaired driver’s vehicle. MADD and other safety advocates must remain vigilant in efforts to save the lives of children endangered by drinking and drugged drivers, propelling this issue to a national priority. It is the Panel’s conclusion that this may be accomplished through the efforts and recommendations outlined in this report. 1 out of 5 child passenger deaths are caused by drunk drivers
64% are being driven by the drunk driver
3“ Child passenger deaths involving alcohol-impaired drivers,” Kyran Quinlan MD, MPH, Ruth Shults, PhD, MPH, Rose Rudd MSPH, Rush University Medical Center, Chicago, National Center for Injury Prevention and Control, CDC, Atlanta 4 “Characteristics of Child Passenger Deaths and Injuries Involving Drinking Drivers.” Journal of the American Medical Association (JAMA), May 2000.
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OVERVIEW OF CHILD ENDANGERMENT
II.
Child Endangerment Panel In 2002, MADD twice convened a panel of experts to develop practical policy recommendations for one of the nation’s most pressing child endangerment problems: children riding in vehicles with impaired drivers. Recommendations were ultimately outlined in the 2004 Child Endangerment Report, Every Child Deserves a Designated Driver. The Child Endangerment Expert Panel, supported by a grant awarded by the Bureau of Justice Assistance, Office of Justice Programs and U.S. Department of Justice, consisted of child and victim advocates, attorneys, judges, law enforcement officials, policy specialists and a bereaved parent victim of child endangerment. The report was distributed to MADD state offices and chapters, state law enforcement agencies, Governor’s Highway Safety Offices, court personnel and key child protective service agencies. It contained helpful guidelines and measures to inform parents, child advocates, medical personnel, law enforcement officials, victim advocates, policymakers and the general public on how to provide greater protection of children from impaired drivers. This report illustrated the heartache that public awareness, training, education and effective child endangerment laws can prevent. A video documentary of a child endangerment case produced by the Wyoming Department of Transportation was included with the report. The video tells the true story of a State Highway Patrol Officer’s five-year-old daughter who was killed after his intoxicated ex-wife drove with a BAC of .22 percent. Prior to the convening of the first panel of experts and during the five-year period of 1997-2001, 1,985 child passengers died and an estimated 87,226 were injured in alcohol-related crashes. Sixty-eight percent of the deaths and 38 percent of the injuries occurred among children who were riding in the same vehicle with the drinking driver. Only 29 percent were known to have been restrained (restraint use was unknown for 9 percent of child passenger deaths). Fifteen years later, in 2016, of the 1,233 children killed in traffic crashes, 214 children (17 percent) were killed in alcohol-impaired driving crashes. Of these 214 deaths, 54 percent were passengers of vehicles with alcohol-impaired drivers, and 46 percent of these children were unrestrained. Most states now have endangerment statutes. Forty-six states (increased from 35 in 2004) and D.C. currently have statutes that create special sanctions in cases of driving under the influence/driving while intoxicated (DUI/DWI) while the offender is transporting a child. Seven states treat the criminal penalty as a felony. Eight states have yet to make modifications to their laws to better safeguard children.
7 states treat driving with a child while intoxicated as a felony
ME
47 states and DC have some sort of endangerment statute
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Recognizing the importance of the research and efforts to protect children from being endangered by impaired drivers, the National Highway Traffic Safety Administration (NHTSA) partnered with MADD to convene a present-day panel of experts. Their job was to identify the problem and status of child endangerment in the United States as it applies to impaired driving and to examine if enhancing penalties has been effective and if they are still appropriate for future support. A second Child Endangerment Expert Panel was convened three times in 2017 to assess progress and recommend revised solutions based on the current status of statutes, a changing culture and existing efforts to address the problem. The panel offered specific knowledge and expertise and helped to identify possible solutions. Issues related to child endangerment were examined: • Legislative • Law Enforcement • Judicial/Prosecutorial • Child Protective Service Agencies • Public Awareness • Victim Perspectives This report reflects the results of the 2017 Child Endangerment Expert Panel and is an update to the 2004 Child Endangerment Report, Every Child Deserves a Designated Driver. While some considerations are consistent with the original report, this report provides an updated review of the issue and includes revised recommendations that Despite drunk driving being a violent crime, driving while impaired with children in the vehicle is still not a commonly acknowledged form of child endangerment or child abuse. No one should be forced to ride with an impaired driver. However, minor children have little or no choice when the driver is a parent or other adult caregiver. According to NHTSA stats, riding with a drunk caregiver accounts for the majority of drunk driving fatalities among children. 5 The goal of child endangerment laws is to protect innocent children from child abusers, not only those who are physically or emotionally abusive, but those who victimize a child by making the choice to drive impaired. Black’s Law Dictionary defines child abuse or neglect as the following: “When a child’s parent or custodian, by reason of cruelty, mental capacity, immorality or depravity, is unfit to properly care for him or her, neglects or refuses to provide necessary physical, affectional, medical, surgical or institutional care for him or her, or is under such improper care or control as to endanger his or her morals or health.” Child endangerment as it pertains to impaired driving falls into the above legal definition of child abuse when a parent or caregiver knowingly puts a child in the car after drinking alcohol with the intention to drive. This choice falls under the “improper care … as to endanger his or her morals or health.” This scenario, however, is rarely, if ever, charged as child abuse. address the current state of child endangerment by impaired drivers. Child Endangerment as a Crime
Child Abuse/Neglect When a child’s parent or custodian, by reason of cruelty, mental capacity, immorality or depravity, is unfit to properly care for him or her, neglects or refuses to provide necessary physical, affectional, medical, surgical or institutional care for him or her, or is under such improper care or control as to endanger his or her morals or health
5 Traffic Facts Sheet 2016 Data: Children, National Highway Traffic Safety Administration
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Child Endangerment Laws Child endangerment is a term used to collectively identify laws that create a separate offense or enhance an existing penalty for an offender who endangers a minor. Endangerment is any action that might place a minor’s physical, moral or mental well- being in jeopardy. While most states now have some kind of endangerment statute, 46 states (increased from 35 in 2004) and D.C. currently have statutes that create special sanctions in cases of driving under the influence/driving while intoxicated (DUI/DWI) while the offender is transporting a child. Seven states treat the criminal penalty as a felony. For current information about state laws on child endangerment, refer to the MADD website: madd.org/ChildEndangermentLaws Child endangerment statutes fall into the following categories: • Enhanced penalties: Penalties that are added to the penalties for a DUI/DWI law violation. • Separate offenses: An offense for DUI/DWI with a minor in the vehicle that is separate from the DUI/DWI offense. • Aggravating circumstances: Laws that allow the fact that a child was in the vehicle to be used by the judge/jury in sentencing as an aggravating factor, but not necessarily in mandating a specific enhanced penalty. Driving impaired is not an “accident” or a mistake. It is a choice, just as the act of blatant physical child abuse is a choice. The weapon is a motor vehicle, rather than a fist. MADD victim advocates continue to receive an increasing number of calls from distraught parents and other loved ones regarding allegations of an adult driving impaired with a child in the vehicle. In polling MADD chapters during the last year, MADD victim advocates across the nation received approximately 471 child endangerment calls. Many of these calls indicate that reports filed to state agencies as child endangerment are slipping through the cracks of the system, putting children at a greater risk of victimization. Additionally, there is a prevalence of calls from parents or caregivers who know a child is riding with an impaired adult and cannot take action to protect the child without judicial intervention. These calls are not from victims of drunk driving crashes, but from potential victims of drunk driving. Often, victim advocates feel helpless and frustrated with these calls for help. There seems to be no relief due to the lack of public awareness of the DUI/ DWI child endangerment problem and the reluctance to accept that driving impaired with a child in the vehicle is a form of child abuse.
In 2017, MADD received 471 child endangerment calls.
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In 2004, MADD victim advocates identified several common problems frequently raised by victims: • Cases are not being properly charged, resulting in lack of prosecution. • Cases that are charged are often plea-bargained down or dismissed. • Reports made to child protective service agencies are not being documented or investigated. • A general lack of awareness of the seriousness of the problem. • Divorced parents confronted with the problem of an ex-spouse who drives while impaired face legal challenges and risk subjecting themselves to civil contempt actions if they refuse visitation privileges to protect their children. • Many victims do not have the financial resources to seek relief in the civil court system. Unfortunately, a review of MADD victim advocate reports over the past decade reveals that minimal progress has been made to address these systemic issues. Within each state, it is the legislature that determines the structure of child endangerment laws. Statutes of this nature are important because motor vehicle crashes continue to outrank all other injuries and diseases as the major cause of death for children ages 1 and above. 6 According to the Centers for Disease Control and Prevention (CDC), 2,469 people under the age of 15 were killed as passengers in the vehicle of a drunk driver from 2000 to 2009. The CDC found that one in five deaths of child passengers are caused by drunk drivers, and most often (64 percent of time), they are passengers in the impaired driver’s vehicle. The CDC study found a correlation between there being no laws on impaired-driving child endangerment and higher rates of child passenger deaths in impairment-related crashes. For children, being killed in a crash in which their own driver was impaired ranks as the sixth leading overall cause of death. According to the most recent data from NHTSA, 214 children were killed in drunk driving crashes in 2016. Fifty-four percent were passengers of vehicles with alcohol- impaired drivers, and 46 percent of these children were unrestrained. 7 A child in a vehicle with a drinking driver is not only at risk from the impaired driver, but also from the lack of proper age-appropriate restraint use (a seat belt or child safety seat), since drinking drivers are much less likely to make sure a child is properly restrained.
6 National Vital Statistics System 7“ Traffic Facts Sheet 2016 Data: Children, National Highway Traffic Safety Administration
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States with child endangerment laws vary in provisions and enforcement. Additionally, public awareness is often so low, many people do not know such statutes exist. Individually, the situation is even more complicated because families with child endangerment issues are often already coping with the legal ramifications of separation, divorce and visitation/custody issues. After a court has accepted custody arrangements, concerned parents and adults have very few options for protecting a child from a parent who drives impaired. Even worse, if a parent attempts to prevent the child from riding with their impaired parent, breach of the custody agreement could be enforced, leading to further victimization. The law enforcement officers, judge, civil attorney and prosecutor on the first panel identified difficulties in enforcing the child endangerment statutes. The following issues were identified: • There is difficulty in interpreting the existing DUI/DWI child endangerment laws; many of the laws are too complex. • There is a lack of education on all aspects of the laws and on the problem of child endangerment in general. • There is difficulty in not being able to enforce civil remedies absent a restraining order or request of participation from child protective service agencies. • Laws are not being uniformly enforced. • Violation of terms of the divorce decree, as it relates to impaired driving with minor children in the car, is not resulting in a change in custody or visitation. • There is a critical need for judicial education programs addressing all the issues surrounding child endangerment. • DUI/DWI offenders’ parental status is not a consideration at sentencing in terms of probation restrictions against driving after drinking with children in the vehicle. Unfortunately, criminal and civil justice experts on the second Child Endangerment Expert Panel reported that these challenges still exist on a large scale and have had minimal remediation over the last decade.
After a court has accepted custody arrangements, concerned parents and adults have very few options for protecting a child from a parent who drives impaired. Even worse, if a parent attempts to prevent the child from riding with their impaired parent, breach of the custody agreement could be enforced, leading to further victimization.
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SUMMARY OF 2004 MADD REPORT
III.
Uniform Age Requirement A “child,” for purposes of applying a child endangerment DUI/DWI statute, should be minimally defined as a person under the age of 16 years. States that currently have a definition of over 16 years of age are encouraged to keep their existing definition. Child Restraint Laws State child passenger restraint and safety laws should be thorough in their coverage and must provide for primary enforcement. Law enforcement agencies are encouraged to give high priority to enforcement of these laws. Consideration should be given to adding driver’s license point suspensions for violations of child passenger restraint laws. Further consideration should be given to administrative revocation/suspension for drivers who commit a second or subsequent offense of any child passenger safety occupant protection laws. Child Endangerment DUI/DWI Statutes The penalties for violation of child endangerment provisions should be substantially higher than the penalties imposed in DUI/DWI cases where children are not involved and should include the following: • In addition to criminal penalties imposed upon conviction, state law should provide for the administrative license revocation/suspension of licenses for alcohol-related child endangerment offenses and for drivers who refuse to take the state administered test of their breath, blood, urine or other bodily substance with children in the vehicle. • Mandatory alcohol/drug assessment and treatment as indicated by the assessment. • A required installation of an alcohol ignition interlock device on any vehicle that may be used by the defendant to transport children under the age of 16 years. • License reinstatement or issuance of a limited driving permit following license suspension/revocation should be contingent upon installation of an alcohol ignition interlock device and, if treatment is required as a result of the court ordered alcohol/drug assessment, completion of the treatment program should be required for full license reinstatement. • A second offense for violation of the child endangerment DUI/DWI statute should be a felony. • An offender charged with violation of the child endangerment statute should not be eligible for pre-trial diversion, deferred adjudication, probation before judgment (PBJ) or similar programs, and a conviction should remain on the offender’s driving record permanently and would not “age off” or be expunged.
The 2004 Child Endangerment Report, Every Child Deserves a Designated Driver outlined several recommendations.
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Repeat Child Endangerment DUI/DWI Statutes
In 1999, MADD released its Higher Risk Driver Program to the nation. This program provided a science-based approach to dealing with higher risk drivers, which include those drivers who have been previously convicted of DUI/DWI, high-BAC drivers and drivers who drive on a license suspended as a result of a DUI/DWI offense. These higher risk drivers have an increased risk of being involved in an alcohol-related crash or being arrested again for DUI/DWI. In an effort to address this problem, MADD advocated that states adopt legislation setting the illegal BAC for adult drivers who have previously been convicted of DUI/DWI at .05 percent per se. This lower limit would apply to these offenders for a period of five years from the date of conviction and would require them to provide a breath test if requested by an officer following any legal traffic stop. Adult drivers who repeatedly drink and drive with children in their vehicle present a clear and present danger to the health and welfare of these children and place these children at a higher risk of being involved in an alcohol-related crash. In line with its current Higher Risk Driver Program, MADD advocates that states consider establishing a .05 percent illegal per se BAC for drivers over the age of 21 who are transporting children under the age of 16 and who have been previously convicted of DUI/DWI or an alcohol-related child endangerment offense. Suggested wording for such a statute is as follows: “It shall be unlawful for any person over the age of 21 who has previously been convicted of DUI/DWI or any child endangerment statute related to operating a motor vehicle under the influence of alcohol or other drugs to drive or operate a motor vehicle while transporting a child under the age of 16 years while said person has a blood alcohol content (BAC) of .05 percent or higher.” Conditions of Bail/Bond Judges setting bail conditions for defendants charged with DUI/DWI offenses where children were passengers in the defendant’s vehicle at the time of the offense should consider a condition that no children under the age of 16 will be transported by the defendant in a vehicle unless an alcohol ignition interlock device is installed on the vehicle by the defendant. Recommendations in Civil Cases Related to Child Custody and Visitation • There should be a mandatory provision in every separation agreement and divorce decree involving minor children that prohibits drunk driving, or driving under the influence of other drugs, by either parent when they are transporting their minor children.
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• Violation of the referenced provision in the separation agreement or divorce decree can be the subject of a contempt or modification action against the offending parent, and the sanctions the court may consider upon a finding of contempt may include, but are not limited to the following: i. Ordering an alcohol/drug assessment and treatment as indicated by the assessment. If so ordered, a copy of the certificate of attendance and completion of the assessment and treatment program should be provided to the other parent ii. Incarceration for violation of the terms of the divorce decree iii. Suspension of driver’s license iv. Requiring the offending parent to have an alcohol ignition interlock device installed on their vehicle and requiring that they may transport the children only in such vehicle v. Change of primary custody of the children vi. Limitations on visitations including requiring supervised visitation or requiring a third party to transport the children for the purposes of visitation if the offending parent is the non-custodial parent vii. Termination of parental rights viii. Award of attorney fees to the parent bringing the contempt action ix. If the offending parent is required to have an alcohol ignition interlock device installed on their vehicle, copies of the monthly monitoring reports of the alcohol ignition interlock device provider should be provided to the other parent • It should be an affirmative defense to a child custody/contempt action based on one parent refusing to allow the other parent to exercise their visitation privileges that the parent attempting to exercise their visitation privileges appeared to be under the influence of alcohol or other drugs at the time they attempted to exercise their visitation privileges. Obtaining a neutral or unbiased third-party witness to corroborate the testimony of the parent withholding visitation privileges from the other parent should be strongly encouraged. Miscellaneous Criminal/Civil Provisions • A conviction for DUI/DWI Child Endangerment should be defined specifically as child endangerment and/or child abuse under state criminal statutes. In addition, it should be defined as child endangerment, child abuse and/or child neglect under any civil statutes as they relate to child custody issues. • State law should require that a conviction for violation of DUI/DWI Child Endangerment or similar state law must be reported to child protective service agencies, the Department of Family and Children Services or equivalent state agencies. Attorneys, medical providers, law enforcement officers, courts, school officials and day care providers should be included in the definition of those required to report. • Upon receipt of a notice of conviction of the DUI/DWI Child Endangerment Statute or similar law, child protective service agencies or the equivalent state agency should be required to investigate in the same manner as any other child abuse or child neglect case.
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Public Awareness and Cross Training Legislative measures alone are not the answer. A priority needs to be placed on educating the general public regarding the life-altering dilemmas that children face who have no choice in riding with an impaired driver. Additionally, there needs to be an emphasis on reporting incidences to law enforcement and appropriate child protective service agencies. There is a critical need to provide training and cross training to educate law enforcement officers, prosecutors, judges, attorneys and those involved in child protective service agencies on the problems and serious consequences resulting from adults drinking alcohol and driving impaired with minor children in the vehicle. They all play a crucial role in addressing these problems and must work together to understand the needs of the other to protect these children from death and injury. Increased awareness of the problem can lead to greater emphasis on enforcement, prosecution and meaningful judicial disposition of these cases. In addition, this will help lead to an acknowledgment throughout the entire system that this is a form of child abuse. Formal Training Sessions For the law enforcement community, the following tools should be used to increase officer awareness of the problems surrounding DUI/DWI child endangerment and related child abuse issues. • New Police Officer Academy Training Sessions: Police academy training sessions often contain a block of instruction on DUI/DWI case enforcement, Standardized Field Sobriety Tests (SFST) and preparation and prosecution of DUI/DWI cases. These training sessions should include a segment on the problem and consequences of DUI/DWI child endangerment and effective enforcement and prosecution of these cases. • In-Service Law Enforcement Training: This training takes place every one or two years for all incumbent officers and is generally mandated by state police officer authority oversight commissions. A component of this training should include updates on DUI/DWI child endangerment issues and any changes in the laws. Informal Trainings and Briefings • Prosecutor Updates: Prosecutors’ offices periodically offer briefings to law enforcement agencies within their jurisdiction to update officers on changes in the laws and to improve case preparation and prosecution. Prosecutors should take advantage of these briefings to re-emphasize the need to properly charge these cases when the facts of the case support the charge of DUI/DWI child endangerment. • Roll Call Briefings: These briefings provide a periodic method of distributing information among officers within a department or agency. Special emphasis on enforcement of child endangerment laws should be an on-going component in these briefings.
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• Special Enforcement Periods: Throughout the year, federal, state and local law enforcement agencies conduct coordinated joint high-visibility enforcement programs focusing on DUI/DWI, seat belt use and other traffic enforcement issues. These enforcement efforts generally include a public awareness and media campaign. Programs that focus on DUI/DWI and occupant protection should include special emphasis on DUI/DWI child endangerment and enforcement of child restraint laws. • Governor’s Highway Safety Programs: The Governor’s Highway Safety Offices and Offices of Traffic Safety should fund training programs to address the problem of child endangerment. • Briefings from Family Services or Child Protective Service Agencies: While infrequent, these briefings may be periodically required as changes in the laws that focus on family law issues come to the attention of the law enforcement community. These briefings should be used to provide cross training between law enforcement and child protective services agencies. • Bulletins and Training Materials: These materials, which are often distributed to law enforcement officers by federal, state or local agencies that are responsible for or involved in peace officer training, should include materials related to child endangerment issues. • Changes to Arrest/Citation/Reporting Forms: Arrest or citation forms should provide a place for the arresting officer to insert the appropriate information concerning ages of children in the vehicle following a DUI/DWI arrest or an offense concerning violation of child restraint laws. This would serve to emphasize and remind the arresting officer that this may be an issue in the prosecution of the case. The form should contain sufficient information that will be provided to child protective service agencies to enable them to conduct an investigation of possible child abuse. • Enhanced Enforcement Efforts: Law enforcement should conduct regular enhanced enforcement efforts for impaired driving and passenger restraint laws. As part of these enhanced enforcement efforts, law enforcement should be trained on the importance of and method for detecting and charging drivers who drink and drive with minor children in their vehicle and/or who violate child restraint laws. Training for Prosecutors, Judges, and Attorneys Child endangerment issues should be an ongoing component of all training programs for prosecutors, judges and attorneys. This could be accomplished in the following manner: • Presentations at judicial conferences and state judicial meetings, • Development of a child endangerment tool kit including video presentation, • Development of Continuing Legal Education (CLE) materials including videos,
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• Make materials and brochures available through state legal training organizations, National Traffic Law Center (NTLC) and judicial colleges, and • Prosecutor training programs. Consideration should be given to developing a workshop training program on a state or local level that would bring together law enforcement, judges, attorneys, prosecutors and child protective service agency representatives focusing on the problems of DUI/DWI child endangerment.
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UPDATES SINCE LAST REPORT
IV.
Overview of Child Endangerment The 2017 Child Endangerment Panel agreed that the following considerations remain a concern regarding impaired driving child endangerment: • Cases are not being properly charged, resulting in lack of prosecution. • Cases that are charged are often plea-bargained down or dismissed. • Reports made to child protective service agencies are not being documented or investigated. • There is a general lack of public awareness of the seriousness of the problem. • Divorced parents confronted with the problem of an ex-spouse who drives while impaired face legal challenges and the risk of subjecting themselves to civil contempt actions if they refuse visitation privileges to protect their children. • Many victims do not have the financial resources to seek relief in the civil court system. • Current state DUI/DWI child endangerment laws are complex and vary greatly from state to state, making enforcement and prosecution a challenge. • A uniform age of children needs to be established for when the laws apply. • There is no clear consensus on whether separate child endangerment statutes or enhanced penalties under existing DUI/DWI law is better. • There is a need for minimum mandatory penalties for violations of child endangerment laws. Evaluating Current Child Endangerment Laws A review of current child endangerment laws was conducted by panelists Dr. Romano and Dr. Kelley-Baker. Together with legal researchers Dr. Sue Thomas and Ryan Treffers, J.D., they conducted original legal research via the online legal research tool Westlaw. They built a data set containing statutes from across the 50 states and the District of Columbia that specifically criminalize operation of a motor vehicle by a driver under the influence of alcohol with a child passenger. Nine policy elements were identified across the jurisdictions. These policy elements were assigned a point value that was used to determine the strength of the statute. This value was then compared to how many children were killed in drunk driving crashes in each corresponding jurisdiction. Policy Elements and Point Allocations 1. Type of Law: Enhanced, Separate, Aggravating 2. Minimum Age of Driver: Unlimited (+2), age 20 and younger (+1), age 21 and older (0)
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3. Maximum Age of Passenger: Age 15 and younger (+1) , age 16 and older (+2) 4. Felony Penalty Attaches: Yes (+1) , No (0) 5. Classifies Violation as Child Endangerment/Child Neglect Reporting: Yes (+1) , No (0) 6. Mandatory Child Passenger Minimum Penalty: Yes (+1) , No (0) 7. Penalty Enhancement (whether penalties for first time DUI offenders are increased when a Child was present): Yes (+1) , No (0) 8. Penalty Types: Jail (+1) , Fine (+1) , License Suspension (+1) , Ignition Interlock (+1) , Other (+1) 9. Penalty Increase with Additional Factor: Yes (+1) , No (0) The authors found that at the end of 2012, 42 jurisdictions had a DUI child endangerment law in place; 12 of them enacted over the previous decade. Nine jurisdictions had not passed a DUI child endangerment law (DUI-CE laws, for short). They found a large variation in how these laws were implemented across the states, including penalties and the ages of the children the laws covered. Ultimately, they found there was no clear pattern that emerged between the percent of children killed while riding with a drunk driver by state and the type of law (aggravating, enhancement, separate, two types). Additionally, the strength of the law based on the penalties and provisions listed above also revealed no obvious difference among children killed by drunk drivers across states. Based on this research, panelists Dr. Romano and Dr. Kelley-Baker took a more rigorous examination of the impact DUI-CE laws have had on the rates of children killed by their drinking drivers. To do this, they linked the legal research they conducted with crash data to assess whether the rates of children’s fatalities and injuries reduced after the passing of the DUI-CE law. Table 1 shows that the law has no significant impact on children’s fatality rates, in particular for those children of ages specifically covered by the law. In other words, any changes in fatalities after the law was passed were negligible and were caused not by the passing of the DUI-CE law itself, but by statistical fluctuations.
Percentage of fatally injured children of ages covered by the DUI-CE law killed by a driver with a BAC ≥ .08 g/dl at the time of the crash, before and after law implementation:
BEFORE THE DUI-CE LAW
AFTER THE DUI-CE LAW
12.8% 11.7% Source: Kelley-Baker, T., & Romano, E. (2016). An Examination of the Effectiveness of Child Endangerment Laws in Preventing Child Fatalities in Alcohol-Involved Motor Vehicle Crashes. Journal of Studies on Alcohol and Drugs, 77(5), 828–833. http://doi.org/10.15288/jsad.2016.77.828
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The strongest influence on the change in prevalence of drunk driving deaths was a result of primary seat belt laws, as well as the position in which children were seated in the car. These findings suggest that it is not enough to have a child endangerment law in place. Additional efforts must be evaluated and implemented, including training of officers about the law, proper and consistent prosecution of the law, as well as efforts to change public attitudes and behaviors around transporting a child when one has been drinking alcohol. The panel also discussed how harsh laws caused an unfortunate backlash in which law enforcement and/or prosecutors and judges do not pursue charges or instead offer a plea to a lesser charge to avoid families being “ripped apart” by the actions of a caregiver. This unintended response to laws with strong penalties requires educating law enforcement, prosecutors and judges on why these laws exist. Information on current state statutes can be found at: madd.org/ChildEndangermentLaws. Leandra’s Law The Child Protection Act, otherwise known as Leandra’s Law, is a New York state law that makes the first offense an automatic felony when the driver has a BAC of .08 or higher and has a child who is 15 years or younger in the vehicle. The bill was passed unanimously by the state legislature and signed into law by the governor on November 18, 2009. MADD was instrumental in the passage of Leandra’s Law and uses it as a model in advocating for other states to adopt a similar law. Important Elements of Leandra’s Law • First time offenders may be charged with a class E felony punishable by up to four years in state prison. • Automatic suspension of driver’s license pending prosecution. • All drivers convicted of DUI must install an ignition interlock for at least six months, in addition to any term of imprisonment. • Probation issues regulations to provide counties with different options for supervising the use of interlocks to ensure that they can determine the most appropriate mechanism for their needs. • Offenders who cause the death of a child younger than 16 in the car may be charged with a Class B felony, punishable by up to 25 years in state prison. • Offenders who cause physical injury to a child in the vehicle may be charged with the Class C felony, punishable by up to 15 years in state prison. • Parents, guardians or custodians who are charged with DUI or Driving Under the Influence of Drugs (DUID) while that child is a passenger in the car would be reported to the Statewide Central Register of Child Abuse and Maltreatment by the arresting agency. The efficacy of this law is still being determined. However, early evidence shows, and it is the opinion of the panel, that a law in and of itself is not effective without proper public awareness, enforcement and prosecution.
Leandra Rosado
Leandra’s Law was named after Leandra Rosado, an 11-year-old girl who was killed on the Henry Hudson Parkway in New York City on October 11, 2009 when her friend’s mother, Carmen Huertas, lost control of the car they were in while under the influence of alcohol. The car, driving 68 miles per hour in a 50 mile per hour zone, flipped over on the highway. Six other children were also injured during the incident. Huertas pled guilty to all charges filed against her and was sentenced on October 29, 2010 to four to twelve years in prison.
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In 2016, the “Prevent Impaired Driving Child Endangerment Act” was introduced to the U.S. Congress by Representative Kathleen Rice of New York in an effort to take Leandra’s Law nationwide. It included the same elements of Leandra’s Law and would have sanctioned states that do not have a DUI child endangerment law. The bill did not pass and has not been re-introduced. Overview of Current Research & Data According to the Centers for Disease Control and Prevention (CDC), 2,469 people under the age 15 were killed as passengers in the vehicle of a drunk driver from 2000 to 2009. The CDC found that one in five deaths of child passengers are caused by drunk drivers, and most often (64 percent of time), they are passengers in the impaired driver’s vehicle. The CDC study found a correlation between having no laws on impaired-driving child endangerment and higher rates of child passenger deaths in impairment related crashes. Being killed in a crash in which their own driver was impaired ranks as the sixth leading overall cause of death for children. Another study funded by the CDC looked at data collected between 2001 and 2010 and found that 11,119 child passengers died in vehicle crashes. 8 Of these, 2,344 (21 percent) died in crashes involving alcohol-impaired drivers, and of these 1,515 (65 percent) were driven by an alcohol-impaired driver. The study also found that impaired drivers of vehicle crashes were more likely to be male (63 percent versus 45 percent of non-impaired drivers), have a previous DUI (seven percent versus one percent of non-impaired drivers), and have no valid driver’s license (34 percent versus 16 percent of non-impaired drivers). Crashes were more likely to occur at night between the hours of 6 p.m. and 6 a.m. (66 percent), and crashes were more likely to be a single vehicle crash (63 percent). Restraint use for children decreased as the BAC level of the driver increased. The two states with the greatest number of alcohol-impaired crash child deaths were Texas (272) and California (135), and the highest annualized rates of child deaths (per 100,000) occurred in South Dakota (.98) and New Mexico (.86). South Dakota and New Mexico were two of the four states without child endangerment laws (along with Connecticut and Vermont – Connecticut recently enacted child endangerment legislation). 9 In 2015, 181 children were killed in drunk driving crashes, and 51 percent of these children were unrestrained, according to the National Highway Traffic Safety Administration (NHTSA). In 2016, 214 children were killed in drunk driving crashes, 10 54 percent were passengers of vehicles with alcohol impaired drivers and 46 percent of these children were unrestrained. A child in a vehicle with a drinking driver is not only at risk from the impaired driver, but also from the lack of safety restraint use (seat belt or child safety seat), as drinking drivers are much less likely to make sure a child is properly restrained. Child safety seats have been shown to reduce fatal injury by 71 percent for infants (under 1 year old) and by 54 percent for toddlers (1 to 4 years old) in passenger cars. For infants and toddlers in light trucks, the corresponding reductions are 58 percent and 59 percent, respectively. 11 8,9 “ Child passenger deaths involving alcohol-impaired drivers,” Kyran Quinlan MD, MPH, Ruth Shults, PhD, MPH, Rose Rudd MSPH, Rush University Medical Center, Chicago, National Center for Injury Prevention and Control, CDC, Atlanta 10 Hertz, E. (1996, December). Revised estimates of child restraint effectiveness. (Report No. DOT HS 96 855). Washington, DC: National Highway Traffic Safety Administration. Available at crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/96855. 11“ Traffic Facts Sheet 2016 Data: Children, National Highway Traffic Safety Administration
Most impaired drivers who crash:
Male
Previous DUI
No License
Most impaired crashes happen:
At Night
With a Single Car
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