DWI with a Child Passenger in Texas

DWI With a Child Passenger is a State Jail Felony

In the state of Texas, driving with a blood alcohol concentration (BAC) of .08 per cent or more, but not in excess of .15, is a Class B misdemeanor for a first offense and carries a penalty of up to 180 days in jail, a fine of up to $2,000, or both. If the BAC is greater than .15 percent, the offense becomes a Class A misdemeanor, punishable by up to one year in jail and a fine of up to $4,000, or both. Under certain circumstances, a DWI charge may be elevated to a felony. One such scenario is Driving While Intoxicated with a child in the car. Nearly all states, including Texas, have driving while intoxicated child endangerment laws. According to Texas Penal Code Chapter 12 § 49.045, when a person operates a motor vehicle while intoxicated on a public road and a child under the age of 15 is in the same vehicle while the intoxicated person operates it, the latter person can be arrested for felony DWI with Child Passenger. A DWI with a child passenger is a separate charge from a DWI. While a DWI is a Class B misdemeanor, a DWI with a child passenger is a state jail felony.

Driving while intoxicated with a minor in your car may also be considered a form of child endangerment, regardless 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, or by act or omission, engages in behavior that puts a minor younger than 15 years of age in danger of death, bodily injury, or physical or mental impairment.


If the Texas Department of Family Services (TDFS) becomes involved, your child could be removed from your custody. A TDFS investigation is separate from the criminal process, and you should consult with an attorney with familiarity in handling these types of investigations.

COLLATERAL CONSEQUENCES: CHILD PROTECTION SERVICES

In addition to these collateral consequences, a person charged with DWI with a child passenger in Texas faces potential problems with Child Protection Services (CPS). The Texas Family Code requires professionals to report any suspected child abuse or neglect to CPS. In accordance with this law, a prosecutor will file a report to CPS as soon as you are charged with a DWI if your child or children were in the car. The ramifications of this report are long-term and potentially devastating.

Penalties for DWI with a Child Passenger in Texas

Chapter 12 of the Texas Penal Code provides the statutory penalties for DWI with child passenger offense. If you have been charged with this offense, which is a state jail felony (SJF), you are facing a driver's license suspension for 180 days, the possibility of a minimum jail sentence of 180 days up to two years and/or a fine up to $10,000. If convicted, the sentencing judge can add other penalties to the sentence, and some of these other penalties include:

• A fine of up to $10,000
• Between 180 days and two years in state jail
• DWI education classes
• Up to 1,000 hours of community service
• Installation of an ignition interlock device on your vehicle
• A driver’s license suspension of up to 180 days
• An annual three-year surcharge fee between $1,000 and $2,000 to retain your driver’s license

Collateral consequences of a conviction for this felony offense include, but are not limited to:

• Loss of voting privileges
• Loss of the right to receive certain forms of government assistance
• Loss of the right to possess or own a firearm
• Changes to your child custody agreement
• Loss of child visitation rights
• Loss of the ability to obtain employment in certain professions

DEFENDING A CHARGE OF DWI WITH CHILD PASSENGER IN AUSTIN AND THROUGH TEXAS

You have the right to fight back against a charge of DWI with a child passenger. In many cases, this defense will be similar to any other DWI charge. However, this offense also includes the additional element that a child under the age of 15 was also in the vehicle. Showing that the state has failed to establish even one of the elements of the crime is enough to avoid a conviction.