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DWI with a Child Passenger

The consequences of driving while intoxicated (DWI) in Texas can mean the loss of your license, fines, and jail time. However, if the driver had a child passenger at the time, it can result in felony criminal charges. A felony DWI with child passenger can impact your personal life, future job prospects, and even child custody hearings. Before you agree to a plea deal, talk to experienced Texas DWI lawyer Jason S. English to understand your rights and how you can protect your driving privileges and avoid a criminal record.

Texas Penal Code § 49.045 Driving While Intoxicated with Child Passenger 

Under Texas Penal Code § 49.045, a person commits the offense of DWI with child passenger 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.

Intoxicated While Operating a Motor Vehicle

The first part of a DWI with child passenger charge requires showing the driver was intoxicated. Intoxication can generally be demonstrated based on:

  • The driver's blood alcohol concentration (BAC) of 0.08% or more; or 
  • 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. 

Penalties for DWI with Child Passenger

The penalties for a DWI in Texas depend on a number of factors. A DWI with a child passenger is a separate criminal offense but still carries some of the similar penalties as other drunk driving offenses. The penalties for a DWI with child passenger include: 

  • Felony criminal conviction,
  • Fines of up to $10,000, 
  • 6 months to 2 years in a Texas state jail facility, 
  • License suspension 90 days to 2 years, 
  • Ignition interlock device (IID), 
  • Surcharges, and
  • Alcohol or drug treatment program. 

There may be additional enhancements based on the driver's blood-alcohol level, prior DWI history, and if there was an accident resulting in serious injuries or death. 

Collateral Consequences of a DWI with Child Passenger

The penalties for a DWI with child passenger conviction can follow an individual after they serve their sentence. Drivers may have to deal with much higher auto insurance rates for years to come. Like other DWI charges, a DWI with Child Passenger can negatively impact your ability to apply for or maintain a professional license, keep your job, get a loan, or maintain a security clearance. 

There are even more limitations for a felony conviction compared to a standard misdemeanor DWI. A felony conviction may limit the individual's ability to:

  • Purchase or own a firearm, 
  • Hold public office, 
  • Find a job, and 
  • Get housing.

A DWI with a child passenger can potentially put the child at risk of harm. This type of criminal conviction could weigh on child custody hearings. A family court judge could consider past criminal convictions, drug or alcohol substance abuse issues, and actions that put the child at risk of an injury. 

Defenses to DWI with Child Passenger Charges

Just because the police or state trooper arrests you for a DWI and the prosecutor treats you as guilty does not mean you have to be convicted of a crime. There are many defenses to DWI with child passenger charges. If the prosecutor cannot prove all elements of the crime beyond a reasonable doubt, the jury should find the defendant not guilty. 

Defenses to DWI charges include challenging: 

  • The traffic stop, 
  • Constitutional violations,
  • Probable cause to make an arrest,
  • Chemical test results, and
  • Field sobriety tests

In order for the police to pull you over in the first place, they have to have a reason. The police cannot stop you “on a hunch.” A basis for a traffic stop can include any traffic violation, even a minor violation like a broken tail light or cracked windshield can be the reason to make a legal traffic stop. 

Constitutional violations include protections against unlawful search or seizure. If the police initiate an unlawful search of you or your property, then the evidence gathered should not be used against you. Talk to your Texas DWI defense lawyer if your constitutional rights were violated during a traffic stop. 

Challenging blood draw results or breath test results are another defense strategy. While the police and prosecutors like to rely on these chemical tests, they can be faulty, inaccurate, and not take into account false positives

Preliminary breath tests (PBTs) are the roadside breath tests police use as a way to gather probable cause to make an arrest. These handheld devices are not 100% accurate and this is one reason they are not mandatory in Texas. There are no penalties for refusing a PBT test.

There are mandatory license suspension penalties for refusing a chemical test. However, these breath test devices can still inaccurately measure a driver's BAC. False positives can come from mouthwash, medication, medical conditions, or even burping. 

Like breath tests, blood draws can also be the source of false test results. Breath tests and blood draws can be challenged in court. Some of the reasons these tests can be challenged include: 

  • Improper testing, 
  • Improper training, 
  • Improper cleaning or calibration, and
  • Improper labeling or storage. 

Austin DWI with Child Passenger Defense

Jason S. English was a criminal prosecutor for 15 years. He understands how prosecutors approach drunk driving criminal cases and what they do to try and get the accused to plead guilty. Before pleading guilty to any crime, make sure you understand your rights and options to fight the criminal charges. 

If you are accused of a DWI with a child passenger in Texas, it is important to speak to a criminal defense attorney right away. Contact Texas DWI lawyer Jason S. English online or call (512) 454-7548. With his many years of experience prosecuting DWIs, Jason S. English is well-prepared to fight for your constitutional rights.

Jason S. English has been recognized as one of the top Criminal Defense Lawyers in Austin. 

Jason S. English is an award-winning criminal defense lawyer

If you have recently been arrested in Austin for a DWI, you need the right lawyer to help you and protect your future.  No one calls us because they have been arrested, they call us because of what the arrest can do to their future.  Jason S English Law, PLLC handles misdemeanor and felony DWI cases as a part of its practice - we know how to prepare your case to meet your goals.  Call now at 512-454-7548 to get the help you need for you and your future. 


Office Location

Jason English
505 West 12th Street, Suite 201
Austin, TX 78701