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If you have been arrested for DWI in Fort Worth, Arlington, Grand Prairie or in the surrounding cities of Tarrant County, and you had a child less than 15 years of age in the car at the time of your DWI arrest, you will likely be charged with the felony offense of DWI with child passenger. Facing a DWI with a child passenger charge is a serious matter. Because Texas has classified this crime as a felony, you run the risk of facing prison time or a lengthy probation with a permanent felony conviction on your criminal record. Additionally, if you become a convicted felon, it will have long term financial and social consequences.

After being arrested for DWI with child in car, there are several things you must do immediately:

  1. Contact an experienced and aggressive DWI attorney to explain Texas DWI law and formulate a plan of action for your legal defense.
  2. Request and Administrative License Revocation Hearing to save your driver’s license from being suspended by the Texas Department of Public Safety.

What Is The Definition Of DWI With Child Passenger Under 15 – Texas Penal Code

Texas Penal Code §49.045 states that a person commits the felony offense of Driving While Intoxicated (DWI) with Child Passenger if:

  • The person is intoxicated while operating a motor vehicle in a public place; and
  • The vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

What Is “Intoxication” Under Texas DWI Law?

Under Texas Penal Code, Section 49.01(2), “Intoxicated” means:

  1. 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
  2. Having an alcohol concentration of 0.08 or more.

What Is “Operating” A Motor Vehicle Under Texas DWI Law?

As mentioned above, the State of Texas must prove beyond a reasonable doubt that you were “operating” a motor vehicle in a public place, while intoxicated. Most people believe the term “operating” means driving a vehicle. However, the Texas Court of Criminal Appeals has expanded the meaning of “operating” to mean activity that does not necessarily require the movement of the vehicle.

For example: there have been court rulings establishing that a vehicle in drive, but not moving, while running can constitute “operating” under Texas DWI law. Additionally, there have even been some limited examples of courts approving the definition of “operating” to apply to a vehicle in park that is running while someone is sleeping it off after being intoxicated.

What Is A “Public Place” Under Texas DWI Law?

A Public Place is specifically defined under the Texas Penal Code as any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops.

In other words, you can be on what appears to be private property but if a substantial group of the public has access to the area, the criminal courts will likely find that it meets the definition of “public place” under Texas DWI law.

Administrative License Revocation Hearing – DWI With Child Passenger

As we mentioned earlier, one of your top priorities after being arrested and bonded out of jail for DWI with child under 15 is to make a request for an administrative license revocation hearing to attempt to save your license from being suspended.

Under Texas DWI law, there is something known as the implied consent law. There is an assumption that if you are pulled over or investigated for driving while intoxicated in Texas, and the officer had reasonable suspicion to stop you and probable cause to arrest you, the law places an obligation upon you to provide a sample of your breath or blood for analysis. Failure to provide a sample of your breath or blood will result in a possible driver’s license suspension.

However, if you fail to request an administrative license revocation hearing within 15 days of the date of your arrest, your license will automatically be suspended 40 days after the date of your arrest. In order to avoid this automatic suspension, it is critical to make a request for an administrative license revocation hearing prior to the 15-day deadline.

At this hearing, your DWI attorney will have the opportunity to obtain evidence regarding your DWI case and argue a suspension should not occur. Specifically, your DWI lawyer will be arguing one of the following:

  1. Lack of reasonable suspicion or probable cause for the DWI investigation – if your DWI attorney is able to analyze the DWI reports, videos, and determines that the police lacked reasonable suspicion to pull you over or probable cause to arrest you, this argument can save your driver’s license and also be effective in negotiating or resolving your DWI case in criminal court.
  2. Failure by the police to administer the statutory warning properly – did the DWI officer read the statutory warning form to you properly? The form is referred to as a DIC-24 form and it must be provided to you and read aloud, and the officer must mark whether your agreed or rejected the breath or blood sample. It is important to remember that the DWI officer has the discretion as to which test to offer you. Some of our clients have rejected a breath sample but agreed to a blood sample or vice versa. The DWI officer then marked the form as though they refused to provide a sample. Technically, you must agree or reject the request based upon what test the officer offers you.
  3. You were under the legal limit after providing a breath or blood sample – what if you agreed to provide a sample of your breath or blood to the DWI officer and the result comes back under 0.08? Here, your DWI lawyer should present evidence establishing you consented to the breath or blood sample and your result justifies a dismissal of the administrative license revocation proceeding.

DWI With Child PassengerWhat Is The Penalty For DWI With Child Passenger In Texas?

Under Texas Penal Code §49.04, DWI with child passenger is a State Jail Felony offense that imposes a fine of up to $10,000, a state jail sentence ranging from 180 days to 2 years, and a mandatory driver’s license suspension. If you receive probation for DWI with child passenger, you could be looking at a DWI probation term of up to 5 years, intensive conditions of probation and a mandatory driver’s license suspension.

Unlike a Felony DWI (DWI 3rd or more), which requires at least two prior DWI convictions before you can be charged with a felony, the charge of DWI with child passenger imposes upon you the strict penalty of a possible felony conviction, even if this is your first DWI offense.

This is perhaps the most unfair aspect of being charged with a DWI with a child passenger. We have represented many clients that are professionals with no prior criminal history that a few drinks while at a restaurant. On their way home they are pulled over for a traffic violation and now they are facing a felony DWI charge because their child was in the car with them at the time of the DWI allegation.

Legal Defenses To DWI With Child Passenger In Texas

If you have been arrested and charged with DWI with child under 15, it is critical that you hire an experienced and aggressive DWI attorney with a proven track record of success with DWI cases so that they can sit down with you, analyze the evidence, and formulate a winning DWI defense strategy. Let us examine a few common DWI defenses that could apply to your case:

State Of Texas Unable To Prove “Operating” A Motor Vehicle

Were you parked at the time the police approached your vehicle for a DWI investigation? Did they attempt to interrogate you regarding driving the vehicle and you remained silent? The State of Texas through the district attorney’s office must prove beyond a reasonable doubt that you were “operating” a motor vehicle in order to convict you of the crime of DWI with a child passenger. Failure to do so will result in a not guilty verdict at a DWI trial.

For example: we have represented clients that were asleep in their car during the summer. They kept the car running and in park in order to use the air conditioning while they slept. They never once drove the vehicle while intoxicated but the police arrested them for the crime of DWI. If you did not admit to driving the vehicle, your DWI lawyer will have a persuasive argument to a jury that you were doing the responsible action of not driving when you feared you were intoxicated and that you factually were not “operating” the vehicle. Many jurors during a DWI trial will feel it is not just or fair to convict someone in that situation and will seek to find the accused not guilty.

Not Intoxicated At The Time Of Driving

What if the DWI officer took a sample of your breath or blood and the result came back over 0.08? Does that automatically mean that you are guilty of DWI? Not always.

It is critical to remember that the district attorney’s office will be required to prove beyond a reasonable doubt that you were operating a motor vehicle while intoxicated and a child under 15 years of age was present. What if the blood sample was taken 3 or 4 hours after you were operating the vehicle? What if the DWI officers arrive after your car had been parked for some time? How can they prove that you were intoxicated AT THE TIME OF OPERATING THE VEHICLE?

They attempt to prove intoxication at the time of driving by extrapolating back in time to determine your blood alcohol level at the time of operating the vehicle. This can only be done if you agree to answer certain questions from the DWI officer during the investigation, such as: time of last drink, how many drinks, what you had to eat, etc. If the police did not gather this evidence or you refused to provide it, the prosecutor may have a challenging time proving that a blood alcohol level of 0.09 from a sample taken 3 hours after driving was, in fact, evidence of you being intoxicated at the time of driving. Why? Because we metabolize alcohol at 0.02 per hour so the range in a case mentioned above could present a sample as low as 0.03 and as high as 0.12. This fact alone could create sufficient reasonable doubt for your DWI attorney to negotiate a favorable result for your case.

Illegal DWI Traffic Stop

What if the DWI officer pulled you over based upon a hunch that you were drunk driving? What if he didn’t’ have any specific articulable facts to determine you had committed a traffic violation?

If your DWI attorney, after analyzing the police reports and videos, is able to determine that the DWI officer lacked reasonable suspicion to make a traffic stop and that traffic stop led to your DWI arrest, your attorney can file a motion to suppress to challenge your traffic stop.

If you are successful in your motion to suppress, the entire DWI case will be thrown out by the judge. Why? Because under Texas DWI laws, an illegal traffic stop renders all evidence obtained after the traffic stop inadmissible in court, thereby resulting a dismissal of all DWI charges.

As you can see, if you have been arrested and charged with DWI with child passenger in Fort Worth, Arlington, Mansfield or in the surrounding cities in Tarrant County, you are facing a serious felony charge that could affect your freedom, your way of life and your future.

You need an experienced and aggressive team of Fort Worth DWI attorneys who have DWI trial experience and are not afraid to explore every legal option to protect your freedom and ensure your legal rights are protected.

At The Hampton Criminal Defense Attorneys, PLLC, you will find a Fort Worth DWI law practice that is different from other Fort Worth DWI lawyers because we provide the citizens of Tarrant County with a DWI trial team approach that evens the odds and provides the best possible DWI defense for your DWI case. We have a team of Former Prosecutors with over 85 years of criminal law and DWI law experience and over 500 DWI jury trials.

The Fort Worth Criminal Defense Attorneys, PLLC provides free consultations and a free case analysis to prepare you for your DWI defense and empower you with options to fight your case.

Call The Hampton Criminal Defense Attorneys, PLLC now for a free consultation.


DWI With Child Passenger: A Former Prosecutor Explains How To Win Your Case (2022)

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