Endangering the Welfare of a Minor

Drivers who operate a vehicle with minor children as occupants should beware. An old law is being applied in a new manner and could have far reaching effects.

          The Arkansas Legislature passed law decades ago concerning the endangerment of the welfare of a minor or child.  That law, codified as Arkansas Code Annotated, Section 5-27-205, has rarely resulted in arrests.  The law in pertinent part provides that:

(a) A person commits the offense of endangering the welfare of a minor in the first degree if, being a parent, guardian, person legally charged with care or custody of a minor, or a person charged with supervision of a minor, he or she purposely:

(1) Engages in conduct creating a substantial risk of death or serious physical injury to a minor;”

(b) Endangering the welfare of a minor in the first degree is a Class D felony.”

          As one can readily conclude, the law is very broad in nature and can be literally construed to cover a large number of activities.  I have been retained recently in two separate cases, each of which involves a young parent who was operating a vehicle while his or her young child was a passenger. In each of those cases, the Arkansas State Police have interpreted an old law to apply to new factual situations.

          In the first of those cases, the young parent was driving 95 miles per hour in 55 miles per hour speed zone.  An Arkansas State Policeman made a traffic stop and thereafter issued multiple citations for alleged illegal activities.  One of those charges was for the offense of endangering the welfare of a minor in the first degree. 

          In the second of those cases, the young parent had been to a party at a neighbor’s house.  When the parent left the party to travel a very short distance to their home, a young child was correctly secured in a child restraint device/seat.  While enroute home, the vehicle passed through a DWI checkpoint.  The driver was ultimately charged with DWI and endangering the welfare of a minor in the first degree.

In each of those cases, the young parent faces up to 6 years in the penitentiary, if convicted.   The legal issue in both cases is whether the parent/driver was engaging in conduct that created a substantial risk of death or serious physical injury to a minor.  Stated differently, does driving while impaired or driving at an excess speed constitute conduct that in and of itself creates a substantial risk of death or serious physical injury to the minor occupant.  The appellate courts of Arkansas have yet to consider that question.

          Until just recently, I was unaware of the law having been applied to motorists who were driving with minor children in the vehicle.  The referenced arrests were made within a thirty-day period of time by separate officers.  I firmly believe that we will be seeing many more arrests of motorists on felony charges of endangering the welfare of minor passengers. 

Whether those arrests will lead to convictions is yet to be determined.  I suspect that most motorists would never dream that he or she could be sentenced to the penitentiary for speeding or for driving under the influence of alcohol/drugs.  Drivers should beware that the combination of minor children occupants and driving at a speed greatly in excess of the posted speed limit and/or driving while under the influence of drugs and alcohol can be considered as irresponsible driving.  Those same drivers should beware that irresponsible driving may result in the filing of felony charges.

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