Yesterday, the Virginia Court of Appeals confirmed that a parent transporting a child while under the influence of alcohol is not automatically in violation of the felony child endangerment statute, Va. Code § 18.2-371.1(B)(1).

. Instead:

“Policing the line between the ever present ‘possibility’ of serious injury and the more concrete ‘probability’ or ‘substantial risk’ of serious injury or death can present difficult challenges. Unquestionably, driving with a BAC over the legal limit with a child, particularly a very young child, in the car creates a potential danger to the child. Without additional evidence in the record of a substantial risk or probability of serious injury or death to the child arising from the accident, Coomer’s actions do not rise to the level required for a felony conviction pursuant to Code § 18.2-371.1(B)(1). Therefore, we reverse the trial court’s decision to convict Coomer of felony child endangerment, in violation of Code § 18.2-371.1(B)(1), and dismiss the indictment for this offense.”

Coomer v. Virginia, ___ Va. App. ___ (April 4, 2017)

In Coomer, the defendant was driving with a 0.09 breath alcohol level (only 0.01 over the 0.08 limit) with her one year old child in the back seat. With bad weather, Coomer lightly rear-ended the car in front of her, causing barely any property damage, and without the child waking up. Under such circumstances, the Court of Appeals reversed Coomer’s conviction for felony child endangerment.

Of course, one is not automatically out of the woods for driving a child while DWI, in that any person convicted of DWI “committed while transporting a person 17 years of age or younger shall be … sentenced to a mandatory minimum period of confinement of five days.” Va. Code § 18.2-270(D).