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Felony DWI with Child in Texas

By April 27, 2023April 26th, 2024Drunk Driving, DWI


The state of Texas imposes severe criminal and civil consequences for anyone convicted of a DWI. In fact, even for a first offense DWI, you could potentially face up to 180 days in a county jail and up to a $2,000 fine. An experienced and aggressive DWI attorney could help you avoid jail time, but it is common that someone who is found guilty of DWI could still be facing a probation term of up to two years and monthly fines, court costs, class fees and other expenses that could add up to thousands of dollars.

However, if you are arrested for a DWI with a child passenger under 15, you can expect even greater consequences ranging from probation to prison time. For precisely this reason, you need to hire an experienced Texas 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 years old poses serious consequences if the case is not properly resolved. For example, a Texas woman was 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 years of age 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 do not have blood test or breath test, how do the police and prosecutors prove intoxication? Under Texas DWI law, the police officers will be required to offer you field sobriety tests to determine if you are intoxicated. The only field sobriety tests that have been approved as “standardized” are the Horizontal Gaze Nystagmus (HGN), Walk and Turn Test and the One Leg Stand test. These DWI tests are only as reliable as they are administered properly. If your DWI officer does not administer the tests properly, they are not reliable and should not be admissible in court.

What if the tests are administered properly, can you still show that the tests were not accurate? Yes! Two of the three tests are physical tests that anyone can fail for many reasons that have nothing to do with alcohol or intoxication. For instance, if you are not coordinated or have physical disabilities or limitations, these tests should not be considered against you. Finally, your experienced and aggressive DWI lawyer must review both the DWI reports and the videos to determine if the field sobriety test scoring sheets were accurate and if the videos reflect whether you failed the tests as your DWI officer claims. Many times, a review of your DWI video will show that the DWI officer exaggerated your violations on the field sobriety tests and this can be exploited by your DWI lawyer to negotiate a favorable result.

Operating a motor vehicle, under Texas DWI law, does not require you to be driving a vehicle. It is a fact specific inquiry for each DWI case but moving the car is NOT required. This can be confusing because most people expect you must be driving the car to be charged with DWI.

For example: What if you are sitting in your car during a hot summer Texas day and your car is running with the air conditioner on and the car is in drive, but you are not moving the vehicle. In fact, you are in a parking lot at a grocery store. Is this “operating” a motor vehicle? There is criminal case law precedent to establish this can be “operating” because the vehicle was in drive, regardless of the fact that the car was not actually moving.

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 multiple Texas 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. The State of Texas will be required to extrapolate back in time to determine that you were intoxicated at the time of driving, not just when you gave the blood test several hours later. If you are working with an experienced DWI attorney that has argued this issue on other cases, your lawyer can use this argument as a means of establishing reasonable doubt regarding your guilt of DWI.

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.

But what if you were behind the wheel? Can they prove “operating” a motor vehicle? It depends on the facts.

For example: a client was parked in a parking space in a parking lot. He had his windows up and the air conditioning on with the car started but placed in park. It was a hot Fort Worth summer evening and he wanted to cool off while he waited for the Uber to show up and take him home. He knew he had too much to drink and wanted to be responsible and not drive home and be arrested for driving while intoxicated (DWI). However, the Fort Worth police department showed up and began to question him and noticed that he was intoxicated and arrested him for DWI. Was this client “operating” a motor vehicle? The prosecutor in Fort Worth, Texas believed that he was operating but we disagreed. Texas DWI law is vague on this issue, and it is fact specific, so this was a perfect candidate for a jury trial. If the prosecutor refuses to be reasonable in their interpretation of Texas DWI law, you can take your case to a DWI trial and force the prosecutor to prove this element of the DWI case beyond a reasonable doubt. Failure to prove every element of the DWI beyond a reasonable doubt will result in a not guilty verdict. In this example, the jury believed the client was being responsible in his actions by waiting for an Uber to arrive and concluded that he was not “operating” a motor vehicle. Receiving a not guilty verdict on a DWI case saved our client’s future and provided an immediate opportunity to have the DWI arrest and case immediately expunged from his criminal record.

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 before they begin a DWI investigation. Reasonable suspicion is developed by the police through claiming 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. Even if you do not win the motion to suppress evidence with the judge, you may get a second bite at the apple with a DWI jury trial. If the jury determines that your traffic stop was illegal, they may find you not guilty of DWI with child passenger under 15 years of age even if your blood alcohol level was over .08.

If you are facing a DWI with child passenger under 15 years of age, you need the best DWI lawyers working on your case. The Hampton Criminal Defense Attorneys, PLLC is a team of six criminal defense attorneys with experience as both a prosecutor and defense lawyer that specialize in the are of DWI defense. Our team of lawyers have tried over 400 DWI cases to a jury trial and stand ready to help you defend your DWI with child passenger under 15 years of age case. If your case is in the Fort Worth, Arlington, or North Texas area, don’t hesitate to contact our office for a free DWI consultation.

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.