Arrested for a Texas DWI with Your Kid in the Car: What Happens?

By March 1, 2019March 9th, 2021Drunk Driving, DWI

DWI With Child Under 15: A Former DA Breaks Down The Law! (2021)


March 1, 2019 – Drunk Driving, DWI – Updated on February 10, 2021

The state of Texas imposes severe criminal and civil consequences for anyone convicted of a DWI. However, if you are arrested for a DWI with a child passenger under 15, you can expect even greater consequences. For precisely this reason, you need to hire an experienced DWI lawyer that has a proven track record of providing great results for DWI cases involving a child passenger under 15 years of age.

Compared to a Misdemeanor DWI, DWI with a child passenger under 15 poses serious consequences if the case is not properly resolved. For example, a Texas woman was recently taking her five-year-old daughter to school and driving under the influence of alcohol. She was involved in a rollover accident, which ejected her daughter from the car. She was arrested at the scene and was charged with a DWI with child passenger and unrestraint of a child in a vehicle, among other charges.

Although this is an extreme case of DWI with a child passenger under 15 years old, any arrest for Felony DWI of this nature comes with an entirely different set of consequences than a typical DWI. You will face enhanced penalties for your DWI, and depending on the circumstances of the alleged offense, may also face consequences for the separate crime of child endangerment.

Below we have put together a guide covering the specific civil and criminal penalties you could face for a DWI with child passenger charge, in addition to explaining the possibility of a child endangerment case.

DWI with Child Passenger Penalties in Texas

If you are operating a vehicle with one or more child passengers, you are automatically assuming responsibility for their safety while driving the car. Endangering a child by driving under the influence is therefore severely punished.

Under Texas Penal Code 49.045, DWI with child passenger is defined as operating a motor vehicle with one or more minor passengers under 15 in a public place while intoxicated. Intoxication is defined as having a blood alcohol content of 0.08% or more, or otherwise not having the normal use of mental or physical faculties due to consumption of alcohol or other drugs.

If you are convicted of a DWI with child passenger, you can expect a litany of civil and criminal penalties, including:

  • State jail felony, punishable by at least 180 days and up to two years in state jail
  • Automatic suspension of your driver’s license for up to 180 days
  • Criminal fines up to $10,000
  • Surcharge/Suspension fees to retain your driver’s license: at least $1,000 per year, but not to exceed $2,000 for three years.
  • Ignition interlock device
  • Required treatment and rehabilitation programs.

Importantly, even if no one (including the child passenger) was hurt during the offense, you will still face the charge of DWI with a child passenger under 15 years of age. However, if the child was endangered or if you have prior DWI convictions, the consequences become even more severe.

How Texas Handles Child Endangerment in This Situation

If you are caught driving drunk with your child in the car, you are likely to also face a civil Child Protective Services (CPS) case. This could result in losing custody of your children and can also affect any joint custody of your children with a prior partner.

Under Texas law, child endangerment occurs when a child under 15 is put at risk for injury, physical impairment or death. Arguably, drunk driving alone puts the child at risk, and the case against you becomes even stronger if you are involved in a DWI accident.

Obviously, this is a situation that no parent or guardian wants to be in. That is why it is important to be aware of the laws surrounding this offense, so you can start putting together the strongest defense possible the moment you are charged.


FOrt Worth DWI Attorney

Possible Defenses For DWI With Child Under 15 Years Old

You Were Not Intoxicated

The State of Texas must prove that you were intoxicated, as defined by Texas law. If you provided a blood or breath test and the blood alcohol level was .08 or lower, a good DWI lawyer will be able to create reasonable doubt as to whether you were operating a motor vehicle while intoxicated.

What if your blood alcohol level was over .08? Now, the question becomes how much later after the time you were driving was the blood drawn? 2 hours? 3 hours? 5 hours? The longer in time between your driving the motor vehicle and the blood draw, the less reliable the blood draw is in determining if you were intoxicated.

For example, let us assume your blood test was .09 but your blood draw was 4 hours after you were driving. Our bodies metabolize alcohol at basically 1 drink per hour, or between .015 and .20 per hour. In this situation, your blood alcohol level could have been as high as .17 or as low as .01. Remember, it is the burden on the State of Texas to prove that you were intoxicated at the time of operating the motor vehicle.

You Were Not Operating A Motor Vehicle

Did the police arrive at the scene and your car was stopped and no longer driving? Maybe you were still in the vehicle, but the car was not running? Regardless of your blood alcohol level, the State of Texas must prove beyond a reasonable doubt that you were operating a motor vehicle. If you were not behind the wheel and there were no witnesses placing you behind the wheel, you may be able to beat your DWI with child passenger under 15 years of age.

You Were Illegally Stopped and Investigated For A DWI With Child Passenger

To sustain a conviction for DWI with a child passenger, the State of Texas must prove beyond a reasonable doubt that the police officer had a reasonable suspicion to pull over your vehicle. This is developed by the police through a traffic stop.

But what if you did not commit a traffic violation?  The police are required to establish facts articulating reasonable suspicion to make a traffic stop. If the police reports are vague or the digital media evidence shows a lack of clarity on the evidence, we may be able to file a motion to suppress the evidence. If the motion to suppress is granted, all evidence after the traffic stop is inadmissible – the equivalent of your DWI with child passenger under 15 being dismissed.

About the Author: 

After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.

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