dissenting.
Because I believe that Appellant was entitled to a directed verdict as to the wanton endangerment charge, I must respectfully dissent.
As noted in the majority opinion, a person is guilty of wanton endangerment when he “engages in conduct which creates a substantial danger of death or serious physical injury to another person. KRS 508.060(1).” Op. at 196. However, it seems that the majority has wholly disregarded the term “substantial” as employed in the statute. “Substantial” is defined by *200Webster’s Dictionary as “considerable in quantity” or “significantly large.” In other words, the risk created by the defendant must be real, considerable and certain, not merely possible; the danger must be palpable, not simply theoretical in a set of circumstances that could potentially come to pass. While deplorable to say the least, Appellant’s conduct in this case cannot be construed as creating the requisite “substantial” risk of death or serious physical injury; I find the connection between Appellant’s actual conduct and the potential for death or injury to be far too tenuous.
The majority concedes that the sole fact of Appellant’s intoxication is insufficient to support a charge of wanton endangerment, and relies in addition on the following behavior: the manner in which Appellant drove the vehicle and the fact that his minor child was in the vehicle.1 At a stop light moments before he was pulled over, Appellant accelerated his truck at a higher than normal rate of speed. As he pulled his truck over to the shoulder upon request of the police officer, Appellant turned off his headlights. These sloppy driving habits, committed by thousands of drivers on a daily basis, simply do not create a substantial risk of death or injury, nor do they indicate the requisite extreme indifference to human life. The result might be different if Appellant had been speeding down an interstate on the wrong side of the road or engaging in a high-speed car chase — this type of behavior coupled with intoxication rises to the level of egregiousness contemplated by the wanton endangerment statute, not prematurely turning off one’s headlights.
The majority also underscores the fact that Appellant’s passenger was a minor as a circumstance that raises driving while intoxicated to wanton endangerment. I believe the child’s age is entirely irrelevant to a determination of the sufficiency of the evidence in this case. The majority states that a child of ten cannot be expected “to perceive the dangerous nature of drunk driving.” There is nothing in the wanton endangerment statute stating that the endangered person must perceive or be aware of the risk created. Nor do I believe that the child’s age should be considered to render Appellant’s conduct any more or less wanton. Would the Appellant here be less culpable if the child were sixteen years old, able to perceive the danger, though still a minor?
The majority opinion cautions that the holding herein should not be considered as “authorization of a wanton endangerment prosecution in every DUI violation.” Op. at 198. I find this warning empty, as the facts of this case demonstrate that even the slightest driving infraction will raise a DUI violation to a wanton endangerment charge. The holding today, I believe, distorts the intent of the legislature in their definitions of DUI and wanton endangerment. I believe establishing penalties for criminal offenses is a legislative function.
COOPER and SCOTT, JJ., join this dissent.
. The majority also cites as further evidence of Appellant’s wanton behavior that this was his third DUI conviction. Op. at 198. I find this fact wholly irrelevant to a determination of whether his behavior on the night in question rises to the level of wanton endangerment. If the majority believes that Appellant's conduct is wanton, then the conduct would not be any less wanton if committed by a person with no criminal history.