Operating While Intoxicated charges are bad but when children are in the vehicle, the situation goes from bad to worse; feloniously worse.
Operating a motor vehicle under the influence of alcohol can be charged as a Class C felony in the State of Iowa, even if nobody is injured as a result of the incident.
Iowa law makes it illegal for a parent or other person having custody or control over a child to "knowingly act in a manner that creates a substantial risk to a child's physical, mental or emotional health or safety." See Iowa Code 726.6. This offense is entitled "Child Endangerment." The gravity of a Child Endangerment offense depends upon the resulting harm to the child. If a serious bodily injury results, it is a Class C, Forcible Felony, punishable by a mandatory 10 year term of imprisonment. If only bodily injury occurs, than it is a non-forcible Class D Felony, punishable by up to 5 years imprisonment. If no bodily injury occurs, it is an aggravated misdemeanor punishable by up to 2 years in prison.
Ordinarily prosecutors file OWI charges that involve children in the car under the Child Endangerment theory as it best fits the offense and has a graduated severity based upon the resulting harm. In ordinary OWI situations, where there is no accident, it is charged as the Aggravated Misdemeanor offense. However, there has been a recent trend in the State for some prosecutors to file the more serious charge of Neglect or Abandonment of a Dependent Person, in order to get a strategic advantage over the defendant.
Neglect of a Dependent Person is committed when a parent, or some other person having custody of a child, "knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person's self." See Iowa Code 726.3. While these are in essence the same elements as required for Child Endangerment, the Iowa Supreme Court has held that a person can be charged with either offense when operating a motor vehicle while intoxicated with a child present in the vehicle. Neglect of a Dependent Person is a Class C Felony, punishable by up to 10 years in prison.
As you can see the prosecution obtains a significant greater deal of leverage over a defendant by charging the offense in this manner. After facing a Class C felony, an Aggravated Misdemeanor resolution looks much more agreeable to a defendant who often times had no prior record and no previous involvement with the criminal justice system. Avoiding the felony is their primary concern at that point in time.
There are certainly defenses and arguments to be made in defense of the charges but
as you can see, a fun night of celebrating the holidays with friends and family, can quickly turn into a nightmare. Rather than find yourself in this position, it is wise to ask yourself if that next drink is really needed or at the very least, coordinate with friends and family to ensure that the person driving the children home has not had too much to drink. Please take this as a sobering reminder that a simple, seemingly innocent celebration, can quickly turn into a feloniously terrible nightmare. Feel free to pass this on and share it with friends and family. This is one area where "taking a chance" should not even be an option.