Tuesday, February 08, 2011

DUI Appeal of the Day (DAD) - Collateral consequences, DUI, Child Endangerment

On occasion, the DAD column has discussed the various collateral consequences that can occur from DUI, such as FAA, CDL, life insurance, bankruptcy, punitive damages, etc. The case of In Re D. McD.,--- A.3d ----, 2010 WL 5116131 (Vt.), 2010 VT 108 is another such event. here, the Supreme Court of Vermont had to determine whether having his two six-year-old children in the vehicle while driving intoxicated constituted a "risk of harm" under Department of Children and Family Services (DCFS) proceedings. “Risk of harm,” is defined in Vermont as a “significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.” Such a determination would cause the driver's name to be placed in the child protection registry, alongside child sexual molesters and child abusers. Under the statutory scheme in place, the only question before the Board was whether a reasonable person would believe that the child was placed at a substantial risk of harm due to the petitioner's actions on the date in question. Petitioner's ex-wife and his therapist opined that petitioner had learned from the incident and that he was unlikely to pose a risk of harm to children in the future. The Board also noted that an internal DCF assessment had rated petitioner as a negligible risk for future abuse or neglect of his children. In light of all the circumstances, the Board concluded that petitioner was unlikely to pose a risk of future harm to children and he thus should not be included in the registry. DCF appealed.
On appeal, the Supreme Court reversed, holding that all of the subsequent mitigation was irrelevant to the analysis. "The Board was not asked to decide petitioner's future risk of harm, and petitioner's rehabilitative efforts, while laudable, were irrelevant to the question before the Board. The Court remanded for a correct analysis. "On remand, the Board must apply DCF's policy on single egregious acts to determine if petitioner placed his children at risk of harm. Thus, the Board must consider whether a reasonable person would believe that: “[t]he parent or caretaker did the act alleged; [t]he act was egregious; [t]here was a significant risk that the child could have been physically injured as a result; and, [t]he physical injury would be serious.”

Editors note: The number of cases involving drugged and drinking mothers (or fathers) with children in the car is increasing. In fact, I handled one with Justice Scalia's daughter involving 5 children in her vehicle. Further, such conduct can be a basis for separate charges (i.e. "Child Endangerment") or increased penalties (same as BAC-based add-ons) or independent proceedings initiated by DCFS. These cases require great care and delicacy, and often a global resolution.

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