New York Criminal Lawyer Blog
The Queens County District Attorney’s Office has announced the arrest of a bus driver charged with DWAI (VTL 1192.1), Reckless Endangerment (NY Penal Law 120.20) and Attempted Endangering the Welfare of a Child (NY Penal Law 110/260.10) after an assistant principal at the school allegedly noticed the smell of alcohol on the bus driver’s breath. It is further alleged that the bus driver, Lakhram Omwathatth, was unsteady on his feet and had watery-bloodshot eyes. Making matters significantly worse and compounding an already terrible situation, it is alleged that five students were on the bus waiting to be driven from school. That being said, it appears that Mr. Omwathatth had driven the bus to school without the students and was arrested prior to leaving with them. Mr. Omwathatth blew a .037 on the intoxilyzer, well below the legal limit. He is further alleged to have stated that he consumed Nyquil and a “non-alcoholic Dr. Pepper.”
I don’t think that anyone could disagree with District Attorney Richard Brown’s statement regarding the importance of protecting children. DWI is one of the most serious crimes with horrific consequences to innocent victims. Moreover, DWI is a preventable crime with some common sense and responsibility. However, regardless of how horrendous the situation may be, i.e, the presence of children in a school bus, the prosecution still has the legal burden of proving a case beyond a reasonable doubt. In this particular case, I believe the prosecution has stretched to find an applicable “A” misdemeanor to charge the defendant with.
Before going into the brief analysis, it is important to note that VTL 1192.1 is not a crime, but a traffic infraction. A conviction of this offense will result in a fine and potentially a couple weeks in jail at worst (very rare), but no criminal record. Moreover, 110/260.10, Attempted Endangering the Welfare of a Child, is a “B” misdemeanor punishable by up to 90 days in jail. Clearly, and understandably, because this case involves children both directly and indirectly, the prosecution wanted a larger hammer. Therefore, Reckless Endangerment (NY Penal Law 120.20), a class “A” misdemeanor punishable by up to 1 year in jail, is that hammer.
Read more after the jump…
Reckless Endangerment:
A person is guilty of Reckless Endangerment in the Second Degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.
The questions that one must ask here is did the defendant’s conduct, at “worst” showing up to work with some alcohol in his system – but below the legal limit, create a substantial risk of serious physical injury to another person? If he was so intoxicated as to render his ability to drive impossible or significantly compromised, then why didn’t the prosecution charge him with VTL 1192.3, a/k/a, “Common Law DWI?” Being impaired, without more is not reckless under the law. If that were the case, then each time an individual was charged with the traffic infraction of DWAI or the misdemeanor of DWI, the prosecution would also charge Reckless Endangerment. Clearly, that does not happen regularly barring additional factors such as speeding, running red lights, cutting off traffic, etc.
Having children in the vehicle that the defendant was supposed to or about to drive does not raise the level of his conduct to a new crime in the eyes of the law. If the individuals were 35 year old hedge fund managers, as opposed to 16 year old students, would the Queens district Attorney’s Office still be charging this case as a Reckless Endangerment in the Second Degree with the same set of facts? I submit that it is not likely. Certainly, there could be aggravating factors that we don’t know about, but the presence of children in the vehicle does not by itself raise the level of the offense to Reckless Endangerment in the Second Degree.
Make no mistake. This incident, like all DWI related crimes, is a tragic one. Law enforcement understandably makes efforts to punish offenders and prevent future crimes. Whenever someone gets behind a wheel there are real dangers to others on the road beyond the driver. On a personal level, if true, this case is even more appalling because it involves school age children being put in the hands of someone we should all be able to trust. While we should all be grateful that this assistant principal was paying attention, we should also look to the law to ascertain what charges the defendant should face and how he should be punished if convicted. Here, solely from a legal view where the prosecution maintains the burden to prove each and every element of an offense beyond a reasonable doubt, that crime may be DWAI and Attempted Endangering the Welfare of a Child, but does not appear to be Reckless Endangerment in the Second Degree.