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Table of Contents
Acknowledgements ii
Child Endangerment and Motor Vehicles v
Introduction 1
Child Restraints and Safety Belts 1
Identifying the Problem 1
Child Restraint Devices 1
Loopholes and Exemptions in the Law 3
Loopholes 3
Exemptions 3
Public Awareness 4
Potential Criminal Liability 4
Child Endangerment and Driving While Impaired/Intoxicated (DWI) 5
Identifying the Problem 5
Potential Criminal Liability 6
General Child Endangerment Statutes 6
Special DUI/Child Endangerment Statutes 7
Unattended Children and Cars 9
Identifying the Problem 9
Hot Cars 9
Trunk Entrapment 11
Power Window Strangulation 11
iii
Children and Cars – A Potentially Lethal Combination
Vehicle Set in Motion 12
Public Awareness 12
Potential Criminal Liability 12
Conclusion 14
Appendix A: Motor Vehicle Statutes That Address Child Endangerment 15
Appendix B: Unattended Vehicles Statutes 49
Appendix C: List of Child Endangerment Statutes 55
Resources 65
Endnotes 66
iv
Children and Cars – A Potentially Lethal Combination
Child Endangerment and Motor Vehicles
The existence of child abuse and neglect extends as far back in history as children themselves. Sadly, the
history of the recognition of forms of abuse and neglect, as well as the laws designed to protect children
from them, is not nearly as long. Author L. DeMause; in his book The History of Childhood: The
Untold History of Child Abuse, stated, “the history of child abuse is a nightmare from which we have only
begun to awaken.”
1
The United States followed its European counterparts’ views of children well into the Industrial
Revolution, disregarding massive poverty, child labor, and neglected youth. Not until the late 19
th
century
did reform begin. Ironically, it started in 1874 with the Society to Prevent Cruelty to Children, founded
nine years after the Society to Prevent Cruelty to Animals. In the mid 20
th
century, child abuse became a
recognized medical diagnosis, and later this concept was expanded to include child neglect.
These efforts of over a century have led to our current understanding that child maltreatment includes
physical, sexual, and emotional abuse, as well as neglect and endangerment. The risk to a child’s physical,
mental, or emotional well-being is endangerment. It is this recognition of child endangerment that
implicates minors and motor vehicles most often. Today, child abuse statutes encompass child
endangerment in several states. In many other states, such crimes are charged under the “reckless”
provisions of traditional criminal charges.
Child safety in motor vehicles is more than a traffic issue. Many cases of minor occupant protection are
intertwined with child abuse and neglect. Prosecutors must evaluate each of these tragedies for possible
criminal charges; failing to do so disregards the value of many lost lives.
Mary Leary
Attorney
v
iii
Children and Cars – A Potentially Lethal Combination
Children and Cars – A Potentially Lethal Combination
Introduction
Children are our most precious resource. Unfortunately, they do not have the skills to protect
themselves. Adults can, and must, protect them. Most States codify this obligation in various
child abuse and endangerment statutes. Still, many States fail to statutorily recognize the
relationship in the traffic safety context. For example, though virtually every State recognizes the
inherent dangers of driving under the influence of alcohol or drugs (DUI or DWI), many do not
articulate special sanctions for DWI/DUI drivers with minor passengers.
Like several other implements of child abuse, motor vehicles are household necessities. If not used
properly, however, they can be deadly weapons. A ride in the family van, sports utility vehicle
(SUV), pickup truck or sedan can become lethal if adults do not take appropriate precautions,
including using proper child restraints and avoiding DUI restraints. Further, when an adult leaves
an unsupervised child in an automobile, the adult takes an almost unconscionable risk, subjecting
the child to a myriad of life-threatening situations, including heat exhaustion, suffocation, and
physical injury.
This monograph addresses motor vehicle occupant protection issues concerning children. The
document discusses the dangers children face and identifies relevant laws and criminal
prosecutions. It identifies these incidents for what many of them truly are: important, if often
overlooked forms of child abuse.
Child Restraints and Safety Belts
Identifying the Problem
Motor vehicle crashes remain the number one cause of death in the United States among young
people. In 2003, the Insurance Institute for Highway Safety reported, “motor vehicle crashes still
cause about 1 of every 3 injury deaths among children. Among those 4-12 years old, crash injuries
are the leading cause of death. Most of the deaths are passenger vehicle occupants, and proper
restraint use can reduce these fatalities.”
2
Child Restraint Devices
According to NHTSA, child restraint use has increased to record-breaking levels; however, “nearly
73 percent of child restraints are improperly used, needlessly exposing children to an increased risk
of death or injury.”
3
To reduce the problem, many local law enforcement agencies offer parents
and other caregivers training on the proper way to use and install child restraint systems.
Additionally, NHTSA created and published guidelines to help adults understand how to protect
their young passengers, as shown in figure 1.
1
Children and Cars – A Potentially Lethal Combination
Figure 1
General Child Seat Use Information
Buckle Everyone. Children Age 12 and Under in Back!
AGE /
WEIGHT
SEAT TYPE /
SEAT POSITION
USAGE TIPS
Never use in a front seat where an air
bag is present.
Birth to at least 1 year and at
least 20 pounds.
Infant-Only Seat/rear-facing
or Convertible Seat/used
rear-facing.
Seats should be secured to
the vehicle by the safety belts
or by the LATCH system.
Tightly install child seat in rear seat,
facing the rear.
Child seat should recline at
approximately a 45 degree angle.
Harness straps/slots at or below
shoulder level (lower set of slots for
most convertible child safety seats).
Harness straps snug on child; harness
clip at armpit level.
INFANTS
Never use in a front seat where an air
bag is present.
Less than 1 year/ 20-35 lbs. Convertible Seat/used rear-
facing (select one
recommended for heavier
infants).
Seats should be secured to
the vehicle by the safety belts
or by the LATCH system.
Tightly install child seat in rear seat,
facing the rear.
Child seat should recline at
approximately a 45 degree angle.
Harness straps/slots at or below
shoulder level (lower set of slots for
most convertible child safety seats).
Harness straps snug on child; harness
clip at armpit level.
Tightly install child seat in rear seat,
facing forward.
1 to 4 years/ at least 20 lbs.
to approximately 40 lbs.
Convertible Seat/forward-
facing or Forward-Facing
Only
PRESCHOOLERS
/TODDLER
Harness straps/slots at or above
child’s shoulders (usually top set of
slots for convertible child safety seats).
Seats should be secured to
the vehicle by the safety belts
or by the LATCH system.
Harness straps snug on child; harness
clip at armpit level.
Booster used with adult lap and
shoulder belt in rear seat.
4 to at least 8 years/unless
they are 4’9" (57") tall.
Belt-Positioning Booster (no
back, only) or High Back
Belt-Positioning Booster.
NEVER use with lap-only
belts—belt-positioning
boosters are always used with
lap AND shoulder belts.
YOUNG
CHILDREN
Shoulder belt should rest snugly across
chest, rests on shoulder; and should
NEVER be placed under the arm or
behind the back.
Lap-belt should rest low, across the
lap/upper thigh area—not across the
stomach.
2
Children and Cars – A Potentially Lethal Combination
While these guidelines are useful in helping parents protect child passengers from injury in the
event of a crash or incident, State laws rarely incorporate them.
Many adults place children in the front seat. Fifteen percent of infants and a third of 4- to 7-year-
olds are seated in the front of motor vehicles, according to NHTSA’s National Center for
Statistical Analysis (NCSA).
4
This is problematic. Adults should require all children 12 and
younger to sit in the back seat: “Sitting in a rear seat instead of the front seat reduces fatal injury
risk by 36 percent among children 12 and younger.”
5
Adults also need to be cognizant of the need for older children to use safety belts. In September
2004, prosecutors charged a mother with three counts of injury to a child after not requiring her
children to wear their safety belts prior to a deadly car crash.
6
Loopholes and Exemptions in the Law
Child passenger safety laws (better known as “car seat laws” or “child restraint laws”) exist in all 50
States, the District of Columbia, and all U.S. territories. However, gaps or loopholes in the laws
and certain exemptions in coverage leave holes in the protective blanket the legislature intended
these statutes to create.
Loopholes
Many States do not prescribe the age-specific child restraints people should use. Thus, these States
allow adults to restrain children with a safety belt when a safety or booster seat is more appropriate
and safer. In addition, most States do not impose restraint requirements on children older than
12. Many States even allow 10-year-old children to ride in the back seat without safety belts.
Additionally, many states place sole responsibility for child restraints on the parents or
guardians. This means that non-parental, non-guardian drivers may not be sanctioned for not
restraining children.
7
Exemptions
There are several exemptions in many State laws that leave children unprotected in vehicles.
8
In
nearly half of the States, children can ride unsecured if all safety belts are in use. This means that
if a vehicle is overcrowded and other occupants are using all of the safety belts, nobody can be
cited if children are unbelted. Another common exemption allows parents, guardians, or other
adults to “attend to the personal needs of the child.” This exemption permits an adult to carry a
child on his or her lap, while the vehicle is in motion, for the purposes of feeding or other similar
activities. Many States do not require that children be restrained if the operator of that vehicle is
from a different State. These exemptions may allow parents or guardians to legally endanger their
children. See Appendices.
3
Children and Cars – A Potentially Lethal Combination
Public Awareness
Child restraint device use is largely a matter of public awareness. Many children killed in car
crashes would have survived if they were restrained properly. Not surprisingly, there is a
correlation between the use of driver safety belts and child restraints. NCSA reports that 92
percent of buckled drivers restrain child passengers, while only 72 percent of unbuckled drivers
restrain children passengers.
9
Impaired drivers are particularly problematic. One study reports that only about 30 percent
of children killed while riding with impaired drivers were properly restrained at the time of
the crash.
10
Potential Criminal Liability
Law enforcement and prosecutors can play an important role in ensuring compliance with
restraint laws through effective enforcement and appropriate sanctions. Under appropriate
circumstances, prosecutors should consider charging parents or guardians who fail to buckle
their children with child endangerment or other offenses.
In Suarez v. State, 2003 Tex. App. LEXIS 10799 (Tx. App. December 30, 2003), the defendant
placed her daughter in the back seat of her car and drove home. There was a factual dispute as to
whether the defendant buckled the child; however, witnesses testified that the child knew how to
unbuckle herself. Thirty minutes later, the defendant arrived home and noticed that the child was
not in the car. Apparently, the child fell out of the car as it crossed a bridge. Another car struck
the child, who eventually died from head injuries. The state charged the defendant with reckless
endangerment and secured a conviction after trial by jury. The trial judge sentenced the defendant
to two years in prison. On appeal, the court found “a reasonable trier of fact could have found
that Suarez’s reckless failure to supervise A.E. as to her seatbelt, an omission, placed A.E. in
imminent danger of death, bodily injury, or physical or mental impairment beyond a reasonable
doubt.” Similarly, a court had little difficulty affirming the legality of a defendant’s sentence for
criminally negligent homicide in State v. Simpson, after the defendant crashed his truck, killing his
unrestrained 11-month-old son. 2005 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. January 7,
2005), rehearing denied, 2005 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. Mar. 28, 2005).
However, in State v. Jones, 151 S.W.3d 494 (Tenn. 2004), the court ruled that a passenger’s
conduct in holding her 2-year-old child in her lap was not a gross deviation from ordinary care
under the facts of this case. The court reasoned that adult drivers routinely fail to safely restrain
child passengers. The court cited a recent survey finding that only 60 percent of child passengers
were restrained and that State law “permitted a mother to remove her child from its car seat to
nurse the child or to ‘attend to its other physiological needs.’”
11
Likewise, in State v. Mitchell, 41
S.W.3d 434 (Ky. 2001), the court held that the defendant’s failure to buckle his young daughter
who was killed in a car crash did not amount to manslaughter. The court reasoned that if the
legislature “recognized that failure to restrain did not constitute civil negligence per se, then the
violation could not satisfy the gross deviation requirement of recklessness.”
4
Children and Cars – A Potentially Lethal Combination
In October 2005, an Angelina County, Texas, court held a woman accountable in an automobile
crash that resulted in the death of her 1-month-old son who was not properly restrained in the
vehicle. The woman forgot the child’s car seat and let a friend hold the child in her lap while a
14-year-old, unlicensed, uninsured driver drove the vehicle. The car slammed into an oncoming
pickup truck and rolled over, killing the boy. The woman pleaded guilty to negligent homicide
charges and was sentenced to a deferred three-year prison sentence and is required to attend
parenting classes and submit to drug testing as a part of her probation.
12
Again, prosecutors should consider the totality of circumstances in determining whether to file
criminal charges in terms of child endangerment or neglect. Considerations should include those
described above and others, including:
• The child’s age;
• The child’s height and weight;
• The child’s location in the car;
• The restraints used, if any;
• The length of the trip;
• Vehicle speed; and
• The roads traveled and to be traveled.
Child Endangerment and Driving While Impaired/Intoxicated (DWI)
or
Driving Under the Influence (DUI)
Identifying the Problem
The Fatality Analysis Reporting System (FARS) estimated that between 1985 and 1996 463
children 14 and younger were killed in alcohol-related car crashes. Sixty-four percent of these
children were killed in the hands of their guardians; they were passengers in the impaired driver’s
vehicle. More than 16,000 other children were injured. Unfortunately, the situation is worsening.
The Centers for Disease Control and Prevention’s study, Child Passenger Deaths Involving Drinking
Drivers – United States, 1997-2002, reported that 2,335 children were killed in alcohol related
crashes between 1997 and 2002. Sixty-eight percent of them were passengers in the impaired
driver’s car. Interestingly, 68 percent of the impaired drivers survived.
13
Impaired driving is inherently dangerous; people who drive under the influence with children in
their vehicles place the children in situations that endanger their lives. In March 2003, Mothers
Against Drunk Driving (MADD) released Every Child Deserves a Designated Driver, a report urging
the public to recognize impaired driving as a form of child endangerment or abuse.
14
MADD
advocated enhanced penalties for those who drive impaired with a child passenger. As MADD
5
Children and Cars – A Potentially Lethal Combination
recognized, child abuse and neglect include a failure to provide necessary physical, emotional, and
medical care. Still, most States fail to explicitly recognize DWI/child endangerment cases as forms
of child abuse or endangerment, treating them the same way they treat every other DWI/DUI
case. Regardless, prosecutors have some tools at their disposal, depending on jurisdiction.
Potential Criminal Liability
General Child Endangerment Statutes
In DWI/DUI cases involving child passengers or victims, traffic prosecutors should consider the
applicability of generic child endangerment or abuse statutes. In People v. Cruz, 576 N.Y.S. 978
(N.Y. Criminal Ct. 1991), the defendant drove his car with a blood alcohol concentration (BAC)
of .18 grams per deciliter with his two children in the car. The court recognized the inherent
dangers of impaired driving and held that there was sufficient evidence to find the defendant
guilty of endangering the welfare of a child. Similarly, in State v. Miller, 1995 Ohio App. LEXIS
3523 (Ohio App. 1995), the defendant drove his car while under the influence of a controlled
substance (Tuinal, the brand name of a drug containing two barbiturates) with his 7-year-old son in
the car. The jury found the defendant guilty of child endangerment. The appellate court noted
that the defendant “created a substantial risk to [the] health and safety” of his son and upheld the
conviction.
15
Unfortunately, not all courts recognize the special and seemingly obvious dangers that DUI drivers
pose to their passengers. In State v. Mastomatteo, 719 A.2d 1081 (Pa. App. 1999), appeal denied,
1999 Pa. LEXIS 1040 (Pa. April 13, 1999), a police officer observed the defendant drift over the
middle line three times at a slow rate of speed. When the officer stopped the defendant, she noted
that defendant was accompanied by her young son. The officer also saw a glass containing what
appeared to be an alcoholic beverage on the front seat and that the defendant appeared to be
impaired. The officer administered field sobriety tests to the defendant, which she failed. The
officer arrested the defendant and took her to the hospital for toxicological testing. Blood analysis
revealed the defendant had a .168 blood alcohol level; urinalysis found 570 nanograms per
deciliter of marijuana in her urine. A jury convicted the defendant of driving under the influence
and reckless endangerment of another person. The appellate court overturned the reckless
endangerment conviction, concluding that DUI does not amount to recklessness absent other
indicia of unsafe driving to a degree that creates a substantial risk of injury that is consciously
ignored (the court affirmed the DUI conviction). Despite the jury’s conclusion to the contrary, the
Mastomatteo court castigated the prosecutor and trial judge, stating that while it does not condone
or advocate drinking and driving:
[N]either do we favor attempts of zealous prosecutors and the judiciary to expand
criminal definitions to encompass criminal conduct which the offense was not
designed for, nor the supplanting of the democratic process that such a practice
involves. If the penalties for DUI are thought of as too lenient then the legislature
can increase them. If there should be additional offenses tied to DUI, say DUI
6
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