Under Texas law, driving while intoxicated (DWI) is a criminal offense that can have serious legal consequences, such as losing your driver license, paying hefty fines, and incarceration. You will be looking at felony criminal charges if you also had a child passenger younger than 15 in your vehicle.
Texas Penal Code § 49.045 Driving While Intoxicated With Child Passenger
According to Texas Penal Code Section 49.045, “(a) A person commits an offense if: (1) the person is intoxicated while operating a motor vehicle in a public place; and (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age. (b) An offense under this section is a state jail felony.”
Intoxicated While Operating a Motor Vehicle
Chapter 10 of the Texas Penal Code defines “intoxicated” as “(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.” If it is demonstrated that you are intoxicated, you can be charged with a DWI with child passenger based on these criteria.
Penalties for DWI With Child Passenger
Driving while intoxicated with a child passenger under age 15 in the car is a more serious offense than just a DWI. You will face a felony charge, which is subject to more than the standard Texas DWI penalties. Some of the penalties you will encounter include:
- Being charged with child endangerment if you're driving drunk with children under 15
- Being additionally fined up to $10,000
- Incarcerated for up to two years with no parole
- Losing driver license for another 180 days
Other mitigating factors that will affect the penalties you receive involve whether there has been a prior DWI, your blood alcohol concentration (BAC) level at the time of the arrest, and whether serious injuries or death occurred because of an accident.
Collateral Consequences of a DWI With Child Passenger
The consequences of a DWI with a child passenger conviction can follow a person after they have served their sentence. Drivers may face much higher auto insurance rates for many years to come. A DWI with Child Passenger, like other DWI charges, can have a negative impact on your ability to apply for or maintain a professional license, keep your job, get a loan, or maintain a security clearance.
Since a DWI with child passenger conviction is a felony conviction, you will face more negative consequences than if you would have been convicted of a misdemeanor DWI. Some of these restrictions might include the ability to purchase or own a firearm, hold public office, find a job, or obtain housing.
You could also face inquiries from the Texas Department of Family and Protective Services if you are accused of neglecting or endangering your child due to a DWI with child passenger conviction. This type of conviction can also impact any child custody hearing as a judge will be considering any actions that put your child at risk, such as drug or alcohol abuse issues and any past criminal convictions.
Defenses to DWI With Child Passenger Charges
Being arrested for a DWI by the police does not mean you will be convicted, even if the prosecutor believes you are guilty. It is crucial to keep in mind that a DWI with child passenger charge has many defenses. And it will be the prosecutor's responsibility to prove you are guilty of this crime beyond a reasonable doubt. Otherwise, the jury cannot find you guilty of the crime.
There are many defenses to a DWI with child passenger charge, as mentioned above. Some of them are:
- Traffic Stop Itself – If a police officer notices you have a broken taillight or cracked windshield, these would be considered valid reasons for making a legal stop. The officer must have a valid reason and cannot just go by their intuition.
- Violations of Your Constitutional Rights – You have rights under the Constitution. Any evidence gathered as part of an unlawful search or seizure of your property cannot be used against you. It's a violation of your Constitutional rights. Contact your Texas DWI defense attorney if this has happened to you.
- Whether the Arrest Was the Result of Probable Cause – Even though a police officer might use a roadside preliminary breath test (PBT) once he has made a traffic stop, this does not mean there is now evidence beyond a reasonable doubt to convict. These tests are known to be inaccurate and unreliable, and the results of the PBT are not admissible as evidence. In fact, these preliminary tests are used by the police as an evidence-gathering tool to generate the probable cause necessary to make an arrest.
- Results from Any Chemical Testing – Even though police and prosecutors rely on chemical tests such as blood draws and breath tests, the results can be challenged due to the tests' inaccuracies (i.e., measuring a driver's BAC) and false positives (i.e., medication, medical conditions, mouthwash, or even burping). However, this is not a reason to refuse to take the test, as you could face a mandatory suspension of your driver license for such refusal.
- Field Sobriety Tests – If you are pulled over in Texas and the investigating officer notices signs of intoxication such as red, bloodshot eyes, slurred speech, the odor of alcohol, confusion, and fumbling when reaching for proof of insurance and identification, the officer may ask you to step out of your vehicle and submit to a field sobriety test. Field sobriety tests are supposed to help police officers determine whether or not drivers are intoxicated during DWI arrests, but they are not always reliable. There are three tests given as part of a standard field sobriety test: the one leg stand test, the walk-and-turn test, and the horizontal gaze nystagmus test.
Austin DWI With Child Passenger Defense
As someone who prosecuted cases for over 15 years, Jason S. English understands the strategies prosecutors employ in drunk driving criminal cases to coerce the accused into pleading guilty. Before you plead guilty to any crime, understand your rights and explore your options for fighting the criminal charges.
When you're dealing with a DWI with child passenger charge, it's not an exaggeration to say that your life depends on retaining an experienced, innovative criminal defense attorney. Attorney Jason English recognizes that your freedom depends on his legal prowess in and outside the courtroom. Contact Jason English today at (512) 454-7548 or online for an initial consultation and help with your DWI arrest.