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Texas DWI Child Passenger Lawyers

Driving while intoxicated with a child passenger under the age of 15 is one of the most severely punished DWI offenses in Texas. Under Texas Penal Code §49.045, this offense is automatically a state jail felony regardless of whether it is your first DWI, regardless of your BAC level, and regardless of whether anyone was harmed. The moment a child under 15 is in the vehicle, a routine DWI becomes a felony with potential prison time and life-altering consequences.

Elements of the Offense

The prosecution must prove:

• The defendant operated a motor vehicle in a public place while intoxicated
• A passenger under 15 years of age was in the vehicle at the time

That is all. The prosecution does not need to prove the child was harmed, endangered, or even aware that anything was wrong. It is a strict liability enhancement. The child’s presence in the vehicle is the aggravating factor.

Penalties

DWI with a child passenger is a state jail felony:

• 180 days to 2 years in a state jail facility
• Fine of up to $10,000
• Driver’s license suspension of 180 days
• Felony conviction on your permanent criminal record
• Potential CPS investigation and family court consequences

In addition to the criminal penalties, a DWI with a child passenger can trigger a Child Protective Services (CPS) investigation. CPS may investigate allegations of child endangerment and, in some cases, seek to remove children from the home or restrict custody and visitation rights. The criminal case and the CPS case proceed on parallel tracks, and what you say in one can be used against you in the other.

Multiple Children: One Charge or Multiple Charges?

Texas appellate courts have addressed whether a defendant can be charged with a separate felony for each child in the vehicle. The prevailing case law holds that a defendant may be charged with only one count of DWI with a child passenger per driving incident, regardless of how many children were present. The unit of prosecution is the act of driving while intoxicated, not the number of passengers.

Defense Strategies

• Challenge the intoxication element. If you were not intoxicated, the child passenger enhancement does not apply. Our forensic science training allows us to challenge blood tests, breath tests, and field sobriety test evidence at the scientific level.
• Challenge the child’s age. The prosecution must prove the passenger was under 15. If age is in dispute, the prosecution bears the burden of proof.
• Challenge the traffic stop and arrest. If the stop was unlawful or the arrest was not supported by probable cause, all evidence, including the child’s presence, may be subject to suppression.
• Negotiate for misdemeanor resolution. In appropriate cases, we negotiate with prosecutors to reduce the felony DWI with child passenger to a standard misdemeanor DWI. This requires demonstrating that the defendant is not a danger to the child and that the circumstances do not warrant felony prosecution.
• Address the CPS case proactively. We coordinate with family law counsel to ensure that the defendant’s rights are protected in both the criminal case and any parallel CPS investigation.

Defend Your DWI Case with Science — Contact Deandra Grant Law

If you are facing DWI charges in Texas, contact Deandra Grant Law for a free, confidential consultation. Our attorneys hold ACS-CHAL Forensic Lawyer-Scientist designations, giving us the scientific training to challenge the prosecution’s evidence at a level most defense attorneys cannot match. Lead attorney Deandra Grant has defended thousands of DWI cases over 30+ years.