I periodically get calls from reporters concerning legal issues in DUI cases. Often they simply involve some celebrity who was arrested for drunk driving and don't really involve any interesting issues. A few days ago, however, a reporter called with an interesting situation in Connecticut — the arrest of two teenagers for not stopping their intoxicated friend from driving — a friend who thereafter drove and crashed in to a tree and died.
The reporter wanted to know: Can the two friends be charged, prosecuted and convicted for not stopping her?
Teens Arrested for Letting Friend Drive Drunk in Fatal Car Crash
Glastonbery, CT. Dec. 6 – Could you be held accountable for allowing someone else to drive drunk? Two 17-year-old boys arrested in Glastonbury, CT on Thursday are finding out the hard way that you can. They were charged with misdemeanors, as police say they knew their friend Jane Modlesky, also 17, was too drunk to drive when she got behind the wheel of an SUV in July before crashing into a tree and dying.
The young men, one of whom was driving and the other of whom was a passenger before getting out of the car and watching Modlesky drive off into the early morning, were charged separately. One was charged with reckless endangerment in the second degree, violation of passenger restrictions and operating a motor vehicle between 11 p.m. and 5 a.m., while the other was charged with violation of passenger restrictions and operating a motor vehicle between 11 p.m. and 5 a.m. Both are due in court later this month.
“This is a highly unusual situation,” California attorney Lawrence Taylor, author of the law book “Drunk Driving Defense” and a former law professor, tells Yahoo Shine. “It’s basically saying that they had a positive duty to stop her. But you cannot be prosecuted because you didn’t stop someone from engaging in criminal conduct: If someone is holding a gun and is about to shoot it, and you don’t pull it out of their hand, you cannot be held accountable. So I think the police are kind of overreaching here.”
Taylor further explains that DUI is considered a "general intent crime," rather than a "specific intent crime" such as stealing or murder. “If you have a general intent crime, it’s pretty hard to be an accomplice,” he notes. “But having said that, there are states who have said yes, you can be an accomplice.”
In Washington in 2002, for example, a 29-year-old woman was charged with being an accomplice to drunken and reckless driving after she was accused of convincing someone to get behind the wheel; the subsequent accident killed six people, while she was the only survivor. She was later acquitted by the state Supreme Court. While that was a rare case, a more frequent situation is that of bartenders being held liable, under state "dram shop" laws, for continuing to serve drunk patrons who then get behind the wheel of a vehicle…
For a further discussion of this issue, see my earlier blog posts Can You Be an Accomplice to DUI? and Is it a Crime to Turn Over the Keys to a Drunk Driver? .