The Court of Appeals upholds a conviction for felony child neglect. The mother was driving with the children with a BAC of 0.25%, two flat tires that she seemed unaware of, had hit a median, and appeared "heavily and highly intoxicated.” Camp v. Commonwealth, 5/8/18.
Code § 18.2-371.1(B)(1) requires a "willful act or omission in the care of such child ... so gross, wanton, and culpable as to show a reckless disregard for human life."
‘Willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.” Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004). Thus, to fall within the scope of the statute, a parent’s act or omission must be such that “an objectively reasonable person would understand that injury to the child is likely to result” from the act or omission. Hannon, 68 Va. App. at 94, 803 S.E.2d at 359.
..."The term “gross, wanton, and culpable” describes conduct. The word “gross” means “aggravated or increased negligence” while the word “culpable” means deserving of blame or censure. “Gross negligence” is culpable or criminal when accompanied by acts of commission or omission of a wanton or wilful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts." Barrett, 268 Va. at 183, 597 S.E.2d at 111
Accordingly, to sustain appellant’s convictions, the evidence must be sufficient to allow the factfinder to conclude that appellant’s actions exposed the children to more than a mere possibility of injury; the factfinder must be able to conclude from the evidence that injuries were likely.
The court concludes that driving with a BAC of three times the limit is, itself, child neglect:
In Stevens v. Commonwealth, 272 Va. 481, 487-88, 634 S.E.2d 305, 309 (2006), ... the Supreme Court expressly stated that the defendant’s “high level of intoxication, approximately three times the legal limit . . .. alone justifies a finding that Stevens’ conduct was gross, wanton, and culpable[,]” and thus, met the standard found in Code § 18.2-36.1(B).5.
In addition, though not necessary for conviction, "Significant other evidence supported the trial court’s conclusion: appellant’s inability to control her SUV when she nearly struck Lasco’s marked police cruiser; appellant’s inability to control her SUV to the point that she struck a median with sufficient force to flatten two tires; her continued operation of the vehicle with two flat tires; and her inability to complete one of the field sobriety tests without falling down."