A DWI on its own is a serious charge, but the consequences are even more severe if you are arrested for DWI with a kid in the car.  In Texas, driving while intoxicated with a child under the age of 15 is a state jail felony. Additionally, you could face other charges, a driver’s license suspension, and visit from child protective services (CPS).

DWI with a Child

Under Texas Penal Code Section 49.045, a person commits a DWI with a child passenger if they are intoxicated while operating a motor vehicle and that vehicle is occupied by a passenger younger than 15.

In order to be guilty of this offense, the state must first prove that you are intoxicated. This means that you have:

(1) Lost your mental faculties;

(2) Lost your physical faculties; or

(3) A BAC over .08.

Remember that in Texas, it is not illegal to drink and drive. Rather, it is illegal to drink and drive intoxicated. Intoxication is a prerequisite to committing DWI with a child passenger. Take a look at this example:

Sarah is driving home from dinner with her two minor children in the car. When she fails to signal for a lane change, a police officer pulls her over. Sarah obliges, and provides the officer with her license and registration upon request. The officer asks Sarah where she is coming from, and she answers with “Olive Garden.” The officer asks Sarah if she had anything to drink, to which she honestly answers “a glass of wine.” The officer commences a DWI investigation and subsequently arrests her for DWI child passenger.

Later, Sarah’s BAC comes back at .06. Moreover, nothing in the police report provides evidence that she lost the use of her mental and physical faculties. The prosecutor figures he cannot prove the DWI, and must dismiss the case altogether. Just because Sarah had a drink and drove with children in the car, does not make her automatically guilty of the felony offense.

DWI and Child Endangerment

In addition to DWI with a child passenger, the state may choose to charge you with child endangerment. This is because driving while intoxicated with a minor in your vehicle could be considered a form of child endangerment, irrespective of whether the child was actually injured.

Under Texas Penal Code Section 22.041(c), child endangerment is considered an offense if an individual intentionally, knowingly, recklessly or with criminal negligence, by act or omission, engages in behavior that puts a minor younger than 15 in danger of death, bodily injury, or physical or mental impairment. An offense under this section is a state jail felony.

Both DWI with a child passenger and child endangerment are charges that could involve CPS. If CPS gets involved, an investigation separate from your criminal case could unfold, and your child could be removed from your custody. If this occurs, you should consult with an attorney that is familiar with handling these types of investigations.  

Penalties for DWI with a Child Passenger in Texas

As previously mentioned, DWI with a child passenger is a state jail felony, which is punishable by 6 months to two years in state jail, and/or a $10,000 fine. Be aware that your sentence could increase if you’ve had prior felony convictions. In addition to a fine and jail time, you are also subject to a 180-day driver’s license suspension.

Remember that a felony conviction can have consequences that include:

Defenses to DWI with a Child Passenger

Although DWI’s with children are punished more severely than misdemeanor DWIs, the defenses to both are similar. It is up to the state to show that you are intoxicated at the time of driving. This is an element that isn’t so cut and dry. A skilled defense attorney will be able to poke holes in the state’s case and challenge whether or not you were actually intoxicated. Challenging the various elements of the DWI can yield positive results.

If you or a loved one have been charged with DWI with a child passenger in Texas, it is imperative that you speak to an attorney knowledgeable in this area. Contact my office today if you have questions about your case.  

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