Should she be charged?

[kirch]

We recently had a very unfortunate incident occur in our city. A drunk with four previous OWI offenses on his record blew a stop sign and hit a car, killing a 6-year-old boy.

He's being charged with homicide by use of a motor vehicle, and rightly so. Let him rot in prison, if you ask me.

But it turns out the driver of the kid's car was his adult babysitter and no one in the car (there was one teenager and one other young child) was wearing a seatbelt. In our state, the driver is legally responsible for seeing that children between 4 and 8 wear seatbelts. I read in the paper today that the chief is considering charging the babysitter in the child's death as well.

Do you think:
A) it's appropriate to charge her with a crime?
B) any charge will be prosecuted?
C) there's any chance she'd be convicted?

[CinaC]

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A drunk with four previous OWI offenses

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Why does he STILL have his car?

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A) it's appropriate to charge her with a crime?

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Absolutely.

quote:

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B) any charge will be prosecuted?

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With what? 'Failing to properly secure a juvenile'?

quote:

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C) there's any chance she'd be convicted?

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Even if she was, would it amount to anything more than a slap on the wrist?

[ 12-10-2002, 03:43 PM: Message edited by: C in a J ]

[OkieNarc]

Interesting situtation, but one that happens all too often. The driver of the vehicle can and should have been cited for the child restraint violation. However, I do not believe the courts will accept a charge of criminal negliegence (wrongful death) in the matter. Having said that, the driver could be charged in the civil court, under the provisions of "contributory negliegence". The parents of the child could, if they wished, own the babysitter for life. That could happen (in the civil courts) regardless as to what the accident reconstruction revealed ... the mechanics of the death in this case.

[Don]

A - Yes, she SHOULD be charged.

B - Depends entirely on your District Attorney's whim.

C - Possibly, depending on how good her scumbag er I mean attorney is.

[Dave T]

Kirch

quote:

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A) it's appropriate to charge her with a crime? [QUOTE]

Absolutely - she was in violation of a legislatively adopted statute

[QUOTE} B) any charge will be prosecuted? [QUOTE]

Really depends upon your District Attorney - although in cases where children are killed or injured they are generally more inclined to prosecute all "at fault" parties. What the charge is would be based upon your local laws. I do not believe that she could be charged with anything above the failure to seatbelt. I doubt they could prove the elements of any serious charge (homicide)as they would have to prove intent and/or malice - they could try the depraved indifference but I think they might have a diffcult cast to make

[Quote] C) there's any chance she'd be convicted?[/QB]

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I think if she is charged with the seat belt violation only she will plead guilty and avoid any court appearance

This story is truely sad. Last month we convicted a habitual DWI offender with 2nd degree murder in the death of a 4 year old child. There are no winners - only losers.

[Oregon Mike]

Morally, I would say she should be punished with something that would keep her in jail for a while. Probably 30-90 days in my opinion. It was certainly reckless behavior, but she's not the one that caused the accident.

From a legal standpoint, it gets tricky. I realize this didn't happen in Oregon, but I'll explain the options that would be available to a DA in Oregon if it did happen.

Manslaughter I or II are long shots because they require that the actor "causes the death of another human being." She allowed the death to occur, but I wouldn't say that she caused it. Those are also Measure 11 crimes, which have madatory sentences of 10 years and 6 years, 3 months.

Criminally negligent homicide is a C Felony and not a Measure 11 crime, so it might be a good choice. But once again it requires the actor to cause the death. I think that's out.

Assault I and II are also Measure 11 crimes, but Assault III and IV are not. Assault III requires the use of a "deadly or dangerous weapon" to cause "serious physical injury." A car meets the definition of dangerous weapon, but it would be a jury's discretion to say whether the woman's car caused the death.

Assault IV only requires that the actor recklessly causes physcial injury. It's an A Misdemeanor in this case, and I'd say it's a sure conviction.

With the above statutes (I still realize this is not an Oregon case), the DA should probably threaten the Manslaughter or Assault II and accept a plea to Assault IV.

It's a tragic case, indeed, but the drunk is the one that caused the accident. Oregon also has had a problem with multiple DUII offenders killing people in crashes. I'm not a big fan of new legislation, but I think it's about time to come down on these people. If we can't keep them from driving, we should keep them in prison.

Mike

[Joseph]

No maybe poor judgment but the criminal here is the guy with the DUI's. My 4 year old grandaughter can take off her own seatbelt and does often. I must repeatedly replace it.

[Dave T]

Kirch,

Here is another similar sad story.

DUI Murder

[Bill R]

The drunk is the criminal. Yes, the babysitter bears some responsibility but at most should be charged with the seatbelt violation. The state is equally if not more responsible than the babysitter for allowing the drunk with 4 OWI convictions on the road. The babysitter will have to live with her poor decision.

[kirch]

quote:

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Why does he STILL have his car?

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Here in WI you can't take away someone's car for OWI offenses.

In this particular case, after the guy's fourth offense he did some jail time and lost his license for 3 years. After the 3 years was up, they gave it back to him with severe restrictions. So, other than the OWI part, he was driving legally.

[Shaky & Blue]

As one of those bloodthirsty photojournalists who show up at fatal accidents for the local news, I've covered more than my share of them. I hate them. I hate them even moreso since they are so often preventable if people would simply buckle themselves or their children into the car. Believe me when I tell you people that when you see me on the side of the road, I want to be there less than you want me there.

Two years ago I covered a fatal in which a man, woman and child were in one of those little rag-top Geo SUVs, hit an icy patch of road and rolled. All three were ejected. The child was seriously injured but lived, but he was conscious as he sat in the road and watched his mother die with a broken neck. All because the parents were too lazy or stupid to buckle him, or themselves, into the vehicle. Children mimic their parents' behavior, so it's no big surprise that this kid didn't buckle up on his own.

What I would hope for the case that started this thread is that the DA would charge the babysitter with something fairly light, then publicize the hell out of it and make it sound as menacing as possible. She made a mistake, and I don't see her conviction for this child's death as being just. However, if the publicity around a lighter charge will encourage even one family to buckle up their kids, it will be worth her brief period of public embarrassment.

Maybe if those morons in the Geo had seen someone on the news charged for not buckling up, they would have thought twice about it and wouldn't have flown all over the road. It still would have been a frightening ordeal for them, but one that they would tell stories about as a family in the years to come.

[Deputy757]

quote:

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Originally posted by Bill R:
The state is equally if not more responsible than the babysitter for allowing the drunk with 4 OWI convictions on the road.

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How is the state responsible if someone who isn't legally allowed to drive, drives? I think the babysitter is probably suffering enough. This is kind of like the pursuit scenario. "If the officer hadn't of been chasing him/her, he/she wouldn't have run and ended up in an accident". Nevermind the fact that the accident was actually caused by someone else.

[Bill R]

quote:

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Originally posted by Deputy757:

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Originally posted by Bill R:
The state is equally if not more responsible than the babysitter for allowing the drunk with 4 OWI convictions on the road.

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How is the state responsible if someone who isn't legally allowed to drive, drives?

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From Kirch:

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So, other than the OWI part, he was driving legally.

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[InSane1]

No. She shouldn't be charged. She was young and stupid and unfortunately an accident happened, which she really had no fault in. He fault was not buckling up a child. That is a petty misdemeanor. Fine give her a citation for that, but only a vengeful person would charge a teenager for that especially under those circumstances. There is discretion in the court system as well. They wouldn't charge her. It would never fly. How could they prove beyond a resonable doubt that the child would have lived had the child worn a seatbelt?

We are talkign common sense and it annoys me that people are that vindictive and vengeful that they would ruin a teenagers life and continue to add to her pain and suffering after losing someone who she was responsible for. grrrrr.

[Mr.Orange]

posted by Insane:

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No. She shouldn't be charged. She was young and stupid and unfortunately an accident happened, which she really had no fault in. He fault was not buckling up a child. That is a petty misdemeanor. Fine give her a citation for that, but only a vengeful person would charge a teenager for that especially under those circumstances. There is discretion in the court system as well. They wouldn't charge her. It would never fly. How could they prove beyond a resonable doubt that the child would have lived had the child worn a seatbelt?

We are talkign common sense and it annoys me that people are that vindictive and vengeful that they would ruin a teenagers life and continue to add to her pain and suffering after losing someone who she was responsible for. grrrrr.

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I believe in these two paragraphs, you may have answered your own questions.

Is the babysitter partly responsible for the death of the child. Maybe. If the child was placed in a booster seat he may have survived. Also, most states if not all have accident reconstruction teams, and they could determine whether the child would have survived the crash if he was placed booster seat or seatbelted.
Now could they cite her for this infraction, yes, could she be found at fault for this, yes, will the Drunken idiot and his lawyer use this as a defense, you betcha.

Weird thing is, seat belts save lives.