The Superior Court has decided the case of Commonwealth v. Vela-Garrett, holding that evidence that a defendant drove a vehicle with a child in the car while under the influence of alcohol or a controlled substance is insufficient to support a conviction for endangering the welfare of a child without some evidence of actual reckless driving. The mere act of driving under the influence will no longer support a conviction for this charge. Instead, the Commonwealth must show that the defendant was unable to safely drive. Typically, the Commonwealth would try to show this by introducing evidence that the defendant actually operated the car in an unsafe manner.

Commonwealth v. Vela-Garrett 

A Pennsylvania State Police (“PSP”) Trooper was patrolling in a marked police cruiser when he observed a white BMW that did not have an inspection sticker on its windshield. The Trooper began following the vehicle and activated his lights. The vehicle pulled over and upon approaching the vehicle, the Trooper smelled a strong odor of marijuana. The defendant was driving the vehicle. The defendant’s girlfriend and their three-month-old baby were also in the vehicle. The Trooper proceeded to search the vehicle. He discovered a digital scale and an “empty twisted corner of a baggie” which, according to the Trooper, often contains some sort of controlled substance. A bag of marijuana was found in the girlfriend’s pants, and the defendant admitted it belonged to him. 

The Trooper also performed field sobriety tests on the defendant. According to the Trooper, the field sobriety tests that were performed on the defendant could detect whether someone was under the influence of marijuana. The defendant later admitted to smoking marijuana. The defendant was then arrested. He also consented to a blood draw which showed that he had forty nanograms of the inactive metabolite of marijuana in his system. The defendant was subsequently charged with DUI (a)(1), DUI (d)(2), and EWOC. 

The defendant elected to proceed by jury trial. He was acquitted of DUI (a)(1), but was convicted on the other two charges and then sentenced to 42 to 96 months’ incarceration. The defendant then filed a timely post-sentence motion which was denied. He filed a timely appeal. On appeal, the defendant raised two issues. Only the issue of whether the evidence was sufficient to sustain a conviction for the crime of EWOC will be addressed in this blog. 

What is EWOC? 

18 Pa.C.S. § 4304 (a)(1) governs the crime of EWOC as it relates to parents. It states:

“[a] parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” It is a specific intent offense which was enacted in broad terms to safeguard the welfare and security of children. To be convicted for EWOC, the Commonwealth must prove that a defendant’s actions amounted to a “knowing violation of a duty of care.” 

The Superior Court has adopted a three-prong standard to determine whether the Commonwealth has met its burden to convict a defendant of EWOC. First, the Commonwealth must prove that the defendant is aware of his/her duty to protect the child. Next, the Commonwealth must show that the child is in circumstances that could threaten the child’s physical or psychological welfare. Finally, the Commonwealth must show that the defendant failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.  

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the defendant’s EWOC conviction. The Superior Court held that just because the defendant was impaired, he did not knowingly place his child in danger by driving with the child in the vehicle. The Superior Court highlighted the fact that the record omitted any allegations of unsafe driving by the defendant. Therefore, the evidence was not sufficient to support the EWOC conviction. Consequently, the defendant’s conviction for EWOC will be vacated and he will get a new sentencing hearing. 

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