Child Endangerment & DWI: Double Jeopardy?

DWISection 568.050 makes it a separate crime (child endangerment) to commit a DWI with a child in the car. The new Senate Bill 216 would also add driving with any level of controlled substance (or its metabolite) in the body to create a new way to commit child endangerment. Both of these ways to commit child endangerment create a problem when combined with a DWI.

Police & prosecutors are known to file DWI charges AND Child endangerment charges together for the same incident, if there is a child in the car. But that’s an illegal double-dip. I can’t see this practice continuing very long before the court of appeals overturns a conviction (that is, if there isn’t one in the works right now!).

Simply, a conviction on both charges together would amount to double jeopardy.The reason is that DWI is a lesser included offense of the Child Endangerment charge; i.e., the elements of the DWI charge are contained totally within the Child Endangerment charge. That’s a big no-no which smart defense attorneys will prevent and ethical prosecutors will not file in the first place.

All things considered, I’d say Missouri’s DWI Child endangerment law is pretty useless. If prosecutors can’t file Child Endangerment along with the DWI charge, then they must choose between the two. In that case they will certainly choose the DWI charge because the punishment ends up being worse for the defendant. With a DWI, he not only has criminal punishment, but he must deal with:

  • points on his driver’s license
  • increased punishment for repeat offenses
  • conviction can be later used to charge a higher level DWI
  • odd stuff like insurance rate increases, job loss, etc.

If the legislature wants to make DWI child endangerment stick they will have to make it a type of aggravated DWI with ALL the DWI penalties and consequences PLUS something more for having Junior along for the ride.