TIMOTHY S. HOGAN, Judge.

The defendant is charged with two violations of R.C. 2919.22(A), endangering children, which states in pertinent part as follows:

"No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support."

The Committee Comment to R.C. 2919.22 indicates that Section (A) refers to neglect, rather than actual physical abuse.

The term "substantial risk" is defined in R.C. 2901.01(H) as meaning: "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist."

Although the distinction between a strong possibility and a remote possibility seems apparent, the term significant possibility is more ambiguous.

The Random House Dictionary of the English Language, Second Edition, defines "significant" as: "of or pertaining to observations that are unlikely to occur by chance and that therefore indicate a systematic cause."

A summary of the facts was read to the court following defendant's plea of no contest. The defendant was operating a 1986 Cutlass automobile in a northerly direction at 12:15 a.m. on Vine Street near Liberty Street. Defendant's two children, ages six and two, were unbuckled passengers in the vehicle. The vehicle was weaving and no lights were operational. The vehicle failed to stop after both a visible and audible signal by a police officer. The vehicle was eventually stopped, and the defendant was subsequently arrested for driving a motor vehicle while intoxicated. Defendant was loud and profane. Defendant's blood-alcohol content was 0.159 grams of alcohol per two hundred ten liters of breath.

In State v. Sammons (1979), 58 Ohio St.2d 460, 12 O.O.3d 384, 391 N.E.2d 713, the Supreme Court, per Justice Holmes, in ruling that the term "substantial risk" was not unconstitutionally vague, wrote:

"We believe that appellant had adequate notice of the standard of conduct imposed by statute. A man of `common intelligence' would know that appellant's conduct presented a strong possibility of harm to the health or safety of appellant's children. There exist `* * * limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent upon finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with * * *.' * * *." Id. at 464, 12 O.O.3d at 386, 391 N.E.2d at 715.

The conduct which formed the basis of the criminal charge in Sammons was branding three pre-teenaged children with a hot scissors. The injury had occurred, as was the case in the large majority of reported decisions, under the child endangering statute. See State v. Wardlow (1985), 20 Ohio App.3d 1, 20 OBR 1, 484 N.E.2d 276; State v. Schultz (1982), 8 Ohio App.3d 352, 8 OBR 464, 457 N.E.2d 336; State v. Kamel (1984), 12 Ohio St.3d 306, 12 OBR 378, 466 N.E.2d 860; State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144; and State v. O'Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144. In the instant case, an assessment must be made of the possibility of an injury which has not occurred.

Another case of interest is State v. Wright (1986), 31 Ohio App.3d 232, 31 OBR 515, 510 N.E.2d 827. In the Wright case, an infant of seven months was injured when he pulled on a cord attached to an iron's electric cord, causing the iron to fall approximately three and one-half feet to the floor. The child sustained burns when his body came in contact with the hot iron. The defendant babysitter had left the child unattended for about ten minutes. Judge McCormac, who wrote the opinion in Wright, stated:

"There was circumstantial evidence from which the trial court could find that appellant created a strong possibility that the child may have been injured by the iron being pulled off the dresser onto the floor. The foreseeability of that event occurring was an issue for the trier of fact, and the trial court's finding that there was a substantial risk created to the health and safety of the child was not against the manifest weight of the evidence. It should be kept in mind that the appellant knew that the small child was able to move about and, inferentially as a mother, that she knew of the propensity of small children to pull objects off tables or dressers if able to do so, as the child was able to do so in this case by virtue of the cord being within his scooting range when he was left alone for the lengthy period of time that he was." Id. at 234, 31 OBR at 517, 510 N.E.2d at 829.

Analyzing the possibility of harm when the act of placing the hot iron on the dresser occurred, we can appreciate Judge McCormac's remarks because it was just as likely that the child would pull the iron off the dresser and sustain direct injury as it was that the child, once having pulled the iron off the dresser without harm, would then come in contact with the iron. However, in the instant case, we must assess two possibilities: first, that defendant would be involved in an automobile accident, and, second, that a child would be injured in the event an accident occurred. Judging the foreseeability of an event that has, in fact, occurred is much easier than attempting to assess the probability of an event which has not occurred.

This court's conclusion, as evidenced by defendant's condition, his observable behavior and the presence of the children in the vehicle without seat belts fastened, is that there was a possibility that defendant's vehicle could be involved in an accident. However, whether there was a strong possibility is speculative. According to P.M. Hurst in a study done in 1974, the likelihood of being involved in a crash is twenty to one for persons whose blood-alcohol content exceeds 0.15 per cent. Although this probability is more than enough for any parent possessing any degree of prudence (which this defendant obviously lacks) to avoid a blood-alcohol level to the degree achieved by the defendant in this case, the court cannot say that odds of twenty to one create a strong possibility. In the event that there is a strong possibility that the vehicle would be involved in an accident, it is an inference upon an inference to conclude that the children or either of them would be injured. Such an inference is impermissible by the trier of fact.

This court does not wish the reader to conclude that no case of child endangering can be successful if based on the unbuckled-child theory. One can imagine a situation where a person's driving is so egregious that both a crash and resulting injury are highly probable. The court only concludes that this is not such a case.

The finding is not guilty in each case.

Defendant found not guilty.