People charged with a third DUI are a dime a dozen; they tend to simply be alcoholics who are extremely careless and who do not live within walking distance of where they drink. What is noteworthy, however, is a Pennsylvania woman who not only is on her third DUI, but also had a child in the car during her last two DUI arrests. When Joanna S. Smith was arrested in York County on May 27, 2013, she allegedly had a .22 BAC. To make matters far worse, she also had a six year old boy in the back seat.
A DUI with a child in the car will invariably lead to a separate charge of endangering the welfare of a child (EWOC), which under the circumstances is graded as a first degree misdemeanor punishable by up to five years in prison and a $10,000 fine. There is Pennsylvania case law holding that merely driving with a child in the car while drunk is not enough to sustain a conviction of endangering the welfare of a child, however, if the defendant’s driving is erratic to the point that there was a good chance that an accident could have occurred, then the Commonwealth has a pretty strong case for EWOC, which is not to be confused with the stone-age technology-wielding, bear-hominid hybrids, which live on Endor. In the case at bar, the police allege that Ms. Smith traveled into the opposite lane of traffic and nearly struck an approaching vehicle head on, so it looks like the prosecution’s case would be pretty solid.
It is unclear whether the six year old boy was Ms. Smith’s own son or someone else’s child. If this is her own child, Ms. Smith will likely have already been investigated by Children and Youth Services (CYS), who might allege that her child is “dependent,” which means that he lacks proper parental care, supervision or control. CYS would normally try to place a dependent child with family members, with foster care serving as a back-up plan. Given the fact that Ms. Smith faces a mandatory minimum sentence of one year of incarceration for her third DUI, it appears that someone else is going to have to raise the child in the near future.
Even if this had been Ms. Smith’s first DUI, the presence of a child in the car would still spell very bad news. Pretty much every district attorney in Pennsylvania has a policy barring ARD consideration for first time DUI defendants who had a child in the car at the time of the DUI arrest.
Matt McClenahen is a criminal defense lawyer based in State College, Pennsylvania, home of Penn State University. He has extensive experience in DUI defense. http://www.mattmlaw.com/Criminal-Defense-Overview/DUI-Defense.shtml
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