Michigan Motor Vehicle Code Section 625(7) (MCL 257.625(7)): Operating While Intoxicated With a Person Under the Age of 16 in the Vehicle

1. Definition and Elements of the Crime

In most operating while intoxicated (OWI) cases, the driver is by themselves, usually driving home from a party or a bar or restaurant. Even so, the presence of a passenger ordinarily will not enhance the driver’s criminal liability. But there’s one important exception—when the passenger is a child under the age of 16. In that circumstance, the driver is liable for what’s commonly called “Child Endangerment,” which carries far more serious consequences than a typical OWI.

There are four elements to Child Endangerment, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant operated a motor vehicle. Operate means to drive or have actual physical control of the vehicle.
2. Second, the defendant operated the vehicle on a highway or other place open to the public or generally accessible to motor vehicles, including a designated parking area.
3. Third, the defendant was intoxicated or impaired by alcohol, a controlled substance, or an intoxicating substance, meaning:
   1. The defendant had a bodily alcohol level of 0.08 grams or more per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine;
   2. The defendant was under the influence of alcohol;
   3. The defendant was under the influence of a controlled substance;
   4. The defendant was under the influence of an intoxicating substance;
   5. Due to the drinking of alcohol or use or consumption of a controlled substance or use or consumption of an intoxicating substance, the defendant drove with less ability than would an ordinary careful driver.
   6. The defendant had in his or her body any amount of a schedule 1 controlled substance or cocaine.
4. Fourth, at the time the defendant operated the motor vehicle, a child under the age of 16 was present in the vehicle.

Does the prosecutor need to show that the child was actually put in danger, i.e., exposed to injury or other harm? No. Even if the driver is pulled over for, say, defective equipment (e.g., a burnt out taillight), and there is no evidence of “bad driving” (swerving, weaving, etc.), the driver is still on the hook for Child Endangerment.

2. Examples

Police receive a call that a woman is driving erratically through a local neighborhood. The police run the woman’s license plate and deduce that she is likely on her way home. Police go to the woman’s house, where they see her car parked in the driveway. They knock on the door, and the woman answers the door holding a baby. She’s visibly intoxicated and reeks of alcohol. No one else is at the house. Police ask the woman if she had her baby in the car, and she hesitates before saying no. Police don’t believe her and arrest her for Child Endangerment.

A man is driving home from a birthday party with his 6-year-old son. The man had a few drinks at the party. A police officer pulls him over after seeing him cross the center line. The man admits to having a few drinks. A preliminary breath test shows a bodily alcohol content of 0.09. The officer arrests the man for Child Endangerment.

3. Related Offenses

Other similar or related offenses include:

1. Operating with an unlawful bodily alcohol content, MCL 257.625(1)(b)
2. Operating while visibly impaired, MCL 257.625(2)(c)
3. Operating while under the influence, MCL 257.625(1)(a)

4. Defenses to Operating While Intoxicated With a Person Under the Age of 16 in the Vehicle

Two common defenses in Child Endangerment cases are (1) lack of presence of a child, and (2) search and seizure violations.

Take the woman arrested at her house. With (1) no one else at the house and (2) the woman’s hesitation when asked if she had her child in the car, police reasonably believe that she must have driven with the baby in the car. But suppose the woman says a babysitter had been watching the child and that the babysitter left just before the police arrived. If corroborated, this would defeat the Child Endangerment charge. The woman could still be liable for a regular OWI, but the consequences are much less severe.

Now consider the man who was pulled over for crossing the center line. Suppose dashcam video shows that the officer was mistaken and that the man never crossed the center line or violated any other traffic laws. This implicates the Fourth Amendment of the United States Constitution, which prohibits unreasonable searches and seizures. Under the Fourth Amendment, a police officer cannot pull a car over without probable cause that the driver committed a crime or traffic violation. Here, with video proving that the man never crossed the center line, the police officer never had probable cause to pull him over. So the charge against him will be dismissed even though he was factually guilty of Child Endangerment.

5. Penalties

Child Endangerment is ordinarily a misdemeanor punishable by up to 1 year in jail, community service of between 30 and 90 days, and a fine of between $200 and $1000. If the offense is committed within 7 years of a prior OWI conviction or after 2 or more prior OWI convictions, it is a felony punishable by up to 5 years in prison, community service of between 60 and 180 days, and a fine of between $500 and $5,000.

6. Criminal Defense for Operating While Intoxicated With a Person Under the Age of 16 in the Vehicle

Prosecutors and judges don’t go easy on people who commit Child Endangerment. In their eyes, drunk driving is bad enough; drunk driving with kids in the car is reprehensible. In other words, don’t expect leniency. You need an aggressive criminal defense attorney to fight the charges and protect your rights.

For more information about Child Endangerment and to talk about your case, contact Grabel & Associates at (800) 342-7896.