In State v. Rich, the WA Court of Appeals ruled there is no ‘per se’ liability for Reckless Endangerment based on proof of DUI.

Here the defendant was pulled over for driving a stolen vehicle. She was arrested for DUI because she exhibited the effects of having consumed alcohol and her BAC test was over .15. She also had a 9-year-old child in the front seat. The Prosecutor charged the defendant with Possession of a Stolen Vehicle, DUI and Reckless Endangerment.

During trial, the Prosecutor argued that because Rich operated a vehicle while legally intoxicated in violation of the DUI statute, her conduct also satisfies the elements of reckless endangerment. The State also points to the following pieces of “additional evidence” that would support a finding that Rich’s conduct created a substantial risk of death or serious physical injury: (1) Rich endangered a passenger and motorists on a “major public roadway,” (2) she was heavily intoxicated, and (3) she exceeded the speed limit. The jury found Rich guilty of both Reckless Endangerment and DUI.

The case went up on appeal on the issue of whether a jury can find rich guilty on both crimes when the overwhelming evidence suggested she was only guilty of DUI.

Some background is necessary. The Reckless Endangerment statute, RCW 9A.36.050, provides as follows:

A person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person.

Another provision in the criminal code, RCW 9A.08.010, defines levels of culpability, including recklessness. RCW 9A.08.010 provides, in relevant part:

RECKLESSNESS. A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.

Here, the Court reasoned that the Prosecutor offered no evidence whatsoever about the presence of other vehicles, motorists, or pedestrians, nor any evidence about the type of road or traffic conditions. Additionally, the police officer who observed Rich drive did not indicate that Rich’s manner of driving posed any danger or caused him to suspect that Rich was impaired.

And even if the jury could infer from an officer’s testimony that Rich was speeding 15 miles per hour faster than the speed limit, the deputy followed Rich because he believed the car was stolen, not because of speeding or for any reason related to the manner in which the car was being operated. This evidence would not, therefore, allow a trier of fact to conclude that Rich’s speed created a substantial risk of death or serious physical injury.

Because the State failed to prove beyond a reasonable doubt that Rich recklessly engaged in conduct that created a substantial risk of death or serious injury to another person, the Reckless Endangerment conviction must be vacated.

My opinion? Good decision. there is no “per se” liability for Reckless Endangerment based on proof of violation of the DUI statute. 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 with a passenger, then they likewise can be implemented by the legislature through the democratic process.

However, courts should remain unwilling to impose such value judgments upon the citizens by shoehorning conduct into the somewhat broad definitions of certain criminal offenses.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.