Two tragic DUI related accidents have resulted in charges in Connecticut for reckless endangerment as a result of failing to prevent the minor from driving drunk, causing the fatalities. As a Massachusetts DUI Lawyer, these cases raise issue of national significance and could set precedent for prosecuting failing to prevent a drunk driving accident and for the expansion of these types of statutes by legislatures.

The first set of charges were filed as part of the investigation of the death of 17 year old Jane Modlesky, according to numerous news accounts of the investigation. The arrests of the two teenage boys came after the local district attorney charged another 17 year old teen with permitting the victim and other minors to possess alcohol during her house party earlier that evening.

Police investigators stated that Modlesky was heavily intoxicated after leaving an party late into the night with four teenage boys in a car belonging to the host of the party. Police arrested the two boys who are alleged to have been the last people to see Modlesky after they drove themselves home with the car, leaving Madlesky to drive away while intoxicated.

Under Connecticut law, a jury may convict an offender of a second degree charge of reckless endangerment if there is proof beyond a reasonable doubt that the offender acted recklessly, and his reckless conduct risked injury to another person. The prosecutor will need to establish that the boys were aware of Modlesky’s intoxicated state, and yet consciously ignored the risk that Modlesky or the public could be seriously injured due to her impaired driving.

Following the accident, police tested samples of Modlesky’s blood for alcohol and discovered her BAC level to be at .27 percent. In Connecticut, the legal BAC limit for minors under the age of 21 is 0.02 percent, in contrast to the 0.08 percent limit for adults.

As for the teenager who hosted the party where Modlesky is alleged to have consumed alcohol, prosecutors have charged her with violating a newer state statute regulating the distribution and possession by anyone under the age of 21. The law took effect on October 1, 2006, and imposes several prohibitions on minors as well as those providing alcohol to minors.

One provision of the statute bans home owners or those exercising dominion over a home or private property from knowingly allowing minors to possess alcohol on the property. An exception to this ban is if the minor is under the supervision of a parent, guardian, or spouse over the age of 21. In this case, there were no parents present at the house during the party.

As a DUI and criminal defense attorney, I am aware of several states having statutes similar to those of Connecticut. Massachusetts, for example, passed a statute in 2000 similar to the Connecticut ban on allowing minors to possess alcohol. Massachusetts also has a statute punishing the reckless endangerment of a child under the age of 18. A person could be imprisoned for up to 2 ½ years if he is found guilty of either creating a substantial risk of injury to a child, or failing to take reasonable steps when necessary to prevent the injury of the child.

There are many defenses and challenges that an attorney could raise to any of those charges. For example, the teenage boys may argue that they themselves were intoxicated and impaired, and so were not conscious of the potential risks.

With regard to the Massachusetts statute making it a felony to endanger a child’s life, one challenge is that the defendant did not have a legal duty to protect the child from the injury. Typically, criminal liability is imposed for committing actions rather than a failure to take action; however, the reckless endangerment statute does provide prosecutors the ability to use this law to punish conduct arising from inaction.

This case is one of several tragedies that have occurred in Connecticut relating to underage drunk driving and underage drinking parties. In fact, a father in Marlborough, Connecticut was arraigned today in Manchester Superior Court on 28 counts of reckless endangerment and 28 counts of permitting minors to possess alcohol. These charges arose as part of the investigation of another tragic death of a 17-year old teen, Paige Houston, who was killed in an accident involving a teen driving away from a party hosted by the defendant’s son.

These cases will be closely watched as prosecutors are likely to continue to aggressively use reckless endangerment statutes to impose criminal liability on those who can prevent a DUI related accident, and to motivate legislators to expand the scope of these statutes. The prosecutors will have a difficult time proving knowledge and intent in these cases to support the reckless endangerment charges, but their aggressive stance is understandable given the tragic nature of these incidents and the need to use the law to change future behavior.