Drug DWI and DWI with a child passenger are two of the more-confounding Texas DWI crimes. That's because drivers charged with a drug DWI offense or DWI with child passenger offense may well have been unaware that either offense was a Texas crime. The public generally associates DWI charges with alcohol intoxication, not impairment from drugs. The public's concern is typically with drunk driving, not driving with prescriptions or other drugs in one's system. The advocacy organization is Mothers Against Drunk Driving, not Mothers Against Drugged Driving. And people drive children all over for many proper purposes. The public wouldn't necessarily know or assume that a Texas DWI offense would be that much different and that much worse just because children are in the vehicle. But put the two DWI offenses together, drugged driving with a child passenger, and you've got a truly unusual situation. To appreciate what you face in a drug DWI with a child passenger charge, you must appreciate the drug DWI offense and DWI with a child passenger charge separately, and then appreciate their interaction together. If that's your situation, though, take it most seriously. Retain premier Texas DWI Specialist attorney Doug Murphy for your most skilled, experienced, and effective defense, and your best outcome.
Texas Drug DWI with a Child Passenger Is Child Endangerment
In Texas, DWI with a child passenger is its own DWI crime. Texas Criminal Code Section 49.045 labels the criminal statute “Driving While Intoxicated with Child Passenger.” But the crime also goes by the label DWI with child endangerment. The child-endangerment label highlights the public concern that an intoxicated driver, or one operating the vehicle while impaired by drugs, may more likely injure the child than a sober driver. Section 49.045(a) defines the DWI with a child passenger crime in a straightforward fashion: “A person commits an offense 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.”
The Elements of Drug DWI with a Child Passenger
The prosecution has the burden of proving each element of a DWI with a child passenger charge beyond a reasonable doubt. Under the above straightforward definition in Texas Criminal Code Section 49.045, the elements of the DWI with child endangerment crime are:
- driver intoxication, however Texas law may otherwise define intoxication, whether by drugs or alcohol;
- a motor vehicle's operation, however Texas law may define motor vehicle;
- the vehicle's operation in a public place, however the law may define a public place; and
- a passenger in the vehicle who is under fifteen years of age.
Drug DWI with a Child Passenger Issues
If each of those above elements is present, then the DWI with child passenger crime is complete, whether the child suffered any injury or no injury, and whether the intoxicated driving caused an accident or no accident. The intoxication element, motor vehicle element, and public place element can each raise significant issues in particular cases. You may have a valid defense to your drug DWI with a child passenger charge based on any one or more of those elements. For instance, an off-road vehicle operated on private lands while on prescription drugs may or may not constitute the intoxicated operation of a motor vehicle in a public place, depending on the precise circumstances. Retain Texas DWI Specialist attorney Doug Murphy to help you investigate and raise those issues as defenses. But those issues aside, the DWI with child passenger charge is relatively straightforward.
Drug DWI with a Child Passenger Is a Felony Offense
Importantly, drug DWI with a child passenger is a felony offense. The enhanced felony level of the offense is because of the child endangerment aspect, not the drug aspect. After defining the DWI with child passenger crime, Texas Criminal Code Section 49.045(b) states it plainly: “An offense under this section is a state jail felony.” An ordinary Texas first-offense DWI is a Class B misdemeanor punishable by up to 180 days in jail. An ordinary Texas second-offense DWI is a Class A misdemeanor punishable by up to twelve months in jail. The felony drug DWI with a child passenger offense increases the potential penalty to twenty-four months in jail, doubling the maximum imprisonment of a second DWI offense and quadrupling the maximum imprisonment of a first DWI offense. The significantly increased maximum imprisonment is only the most alarming risk of a drug DWI with a child passenger charge. Not every defendant facing a drug DWI with a child passenger charge gets the maximum sentence. But a longer potential penalty can often translate into a longer actual penalty, even if the defendant doesn't get the maximum. Retain attorney Murphy to address not only your exonerating evidence, proving you not guilty of the drug DWI with child passenger charge, but also evidence that mitigates the potential penalty.
Other Potential Penalties for Drug DWI with a Child Passenger
Other potential penalties for a felony drug DWI with a child passenger charge include supervised release, probation, community service up to 1,000 hours, loss or restriction of driving privileges, installation of an ignition interlock device, completion of alcohol or drug education, attendance at a DWI school or repeat offender DWI school, and costs and fees the court imposes. In some cases, these additional penalties can prove more onerous than the modest incarceration, such as time served after arrest, that the court may impose. Beware of the impact, for instance, of restrictive terms and conditions of supervised release or probation, burdensome community service, and unnecessary education. Violations of these additional terms can lead to incarceration. Retain attorney Murphy to help you negotiate and evaluate plea offers and advocate for appropriate relief.
Collateral Consequences of Drug DWI with a Child Passenger Charges
Drug DWI with a child passenger charges can also have serious collateral consequences. And again, the collateral consequences can, in some cases, be just as severe as or more severe than the potential direct DWI penalties like fines and incarceration. DWI charges and convictions can affect your business or professional license, which could lead to the loss of clients, patients, income, and employment. DWI charges, especially drug DWI with a child passenger charges, can also affect child custody and parenting time. In the worst case, and without skilled representation, you could lose custody of, and time and contact with, your children. DWI charges can also affect work visas, naturalization, and other immigration rights and statuses. More-serious crimes like a felony drug DWI with a child passenger charge could even lead to revocation of a visa or deportation. DWI charges can also affect firearms licenses, security clearances, and international travel, any one of which could lead to loss of employment. Retain attorney Murphy to help you avoid the collateral consequences of a drug DWI with a child passenger charge and conviction.
Drivers Transporting Child Passengers
You don't have to be a school bus driver or another professional driver to face a Texas felony drug DWI with a child passenger charge. Texas Criminal Code Section 49.045 states simply that “a person commits an offense” when meeting the other statutory elements for the felony DWI charge. Thus, parents, other relatives, friends, coaches, teachers, and volunteers all drive children for family, medical, social, educational, and recreational purposes. For some people, having a child passenger in their vehicle is rare. But for many others, transporting children is commonplace, a regular occurrence. And the transport may be to or from restaurants, ball games, and other social and recreational events where intoxicants, either drugs or alcohol, are common and imbibing permitted or even expected. Parents and others who regularly transport children may also regularly take prescription medication that could lead to a drug DWI with a child passenger charge. Innocent-seeming circumstances can lead to a serious felony drug DWI with a child passenger charge. Get the qualified, skilled, and experienced help you need to address those charges. Retain Texas DWI Specialist attorney Murphy.
Texas Law Authorizes Drug DWIs, Not Just Alcohol DWIs
The risks of a drug DWI with a child passenger are just as real as the risks of an alcohol DWI with a child passenger. Texas Penal Code Sections 49.01 et seq. defining the various Texas DWI crimes, from an ordinary first-offense DWI all the way to intoxication manslaughter, refer to a common definition of “intoxicated” that includes either alcohol intoxication or drug intoxication. Don't assume that because you've never had an alcoholic drink, or haven't had anything to drink anywhere near in time to your motor vehicle operation, you face no risk of a DWI. On the contrary, a national study suggests that drug DWIs are on the rise. Police increasingly look not just for signs of alcohol intoxication but for signs of impairment that may be due to drugs. A drug DWI with a child passenger charge is a real risk for anyone driving children while on prescription or other drugs. Retain DWI Specialist attorney Murphy for your best outcome to that serious charge.
The Broad Definition of Intoxication
Under Texas Penal Code Section 49.02(2), a motor vehicle driver is unlawfully intoxicated either with a .08 or higher blood alcohol concentration or when “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.” Notice that Texas Penal Code Section 49.02(2) clearly defines a drug DWI to include not just dangerous drugs but also controlled substances and, indeed, any drug. Controlled substances would include both the unlawful Schedule I drugs and lawful prescription drugs controlled under Schedule II, Schedule III, Schedule IV, and even Schedule V. Notice, too, that Section 49.02(2) clearly includes a combination of drugs or combination of drugs and alcohol. You might thus have a lower blood alcohol concentration than the .08 limit but find yourself charged with DWI with a child passenger based on a combination of drugs and alcohol.
Drug DWI with a Child Passenger Detection
The fact that you can face a drug DWI with a child passenger charge may make you wonder how police discover the presence of drugs in your system. Alcohol DWI charges often depend on police seeing an open alcohol container, smelling alcohol in the vehicle, or on the driver's breath. Drugs don't ordinarily carry sights and smells. When police have probable cause to suspect alcohol intoxication, they may use a breath test. When they suspect drug intoxication, they generally seek a blood or urine test instead. But the arresting officer may also use the Drug Recognition Expert (DRE) protocol. This controversial protocol purports to enable the officer to discern drug intoxication from interview evidence, pulse and other vitals exams, eye nystagmus tests, divided attention testing, muscle tone, dark room exam, and other tests. Retain DWI Specialist attorney Murphy to challenge your DRE protocol results, proving the inadmissibility of DRE evidence or showing reasonable doubt for the prosecution's charges.
Common Drugs for Drug DWI with a Child Passenger Charges
You've seen that any drug could lead to a drug DWI with a child passenger charge. But some drugs lead to drug DWI charges more commonly than other drugs. That result may be because of the blood or urine testing available to detect the common drugs, the reputation of the drugs, the prevalence of the drug in DWI enforcement and other law enforcement issues, or other factors. Some of the most common drug DWI charges involve cocaine, marijuana, amphetamines, methamphetamines, heroin, ketamine, methadone, hydrocodone, morphine, opium, oxycodone, MDMA, Dextromethorphan (DXM or DM), Flunitrazepam (Rohypnol), Phencyclidine (PCP), Gamma-Hydroxybutyric Acid (GHB), Lysergic Acid Diethylamide (LSD), Mescaline, and psilocybin mushrooms. But remember, any drug will do under Section 49.02(2)'s definition of intoxication. Retain DWI Specialist attorney Murphy to help you challenge test results suggesting the presence of any drug, common or otherwise.
Prescription Drug DWI
Prescription drug DWIs, including a drug DWI with a child passenger charge, can be the most controversial of DWI charges. And police and prosecutors know it. With about two-thirds of American adults on prescription medication of one kind or another, one might expect the possibility of DWI charges in nearly two-thirds of traffic stops. Of course, intoxication requires more than being on a prescription drug. Section 49.02(2)'s definition also requires impairment of “the normal use of mental or physical faculties by reason of” the drug. But many driving patterns and personal presentations can appear like impairment. Police and prosecutors could, in theory, charge many prescription drug DWIs but may instead consider other factors. Those factors may include the driver's admission to the prescription medication, the type and quantity of the medication, its timing relative to the driving, its quantity in the system, and even the driver's politeness and driving record. Retain DWI Specialist attorney Murphy to help you defend prescription drug DWI with a child passenger charges. Depending on your circumstances, the quality of your defense representation, and other factors, the police, prosecution, and the court may be more willing to abandon, reduce, or dismiss those charges.
Controlled Substance or Drug DWI
Controlled substance or drug DWI with a child passenger presents a different risk than prescription medication DWI. Controlled substance or drug DWI implies that the defendant driver obtained, possessed, and used the controlled substance or drug unlawfully. When, for instance, a blood or urine test relating to a drug DWI with a child passenger arrest shows LSD, cocaine, or heroin, the police, prosecutor, and court will all be aware that the defendant driver may well have intentionally ingested illegal drugs. The evidence may eventually prove otherwise. The test results may have been wrong, for instance, or the driver may have unintentionally ingested the substance, for another example. But the inference of illegal drug use may make the police and prosecution more interested in pursuing the drug DWI with a child passenger charge and the court more willing to sustain it. A controlled substance or drug DWI with a child passenger charge could prove very difficult to defend, presenting greater risks than many other DWI charges. Retain premier DWI Specialist attorney Murphy for your defense of controlled substance or drug DWI with a child passenger charges.
Marijuana DWI
Texas law authorizes drug DWI with a child passenger charges even when the allegedly intoxicating substance is marijuana or a marijuana active ingredient derivative. Many people assume that legalization of medical or even recreational marijuana in other states legalizes marijuana use in Texas or at least relieves users of marijuana drug DWI charges. That is not the case. Federal law and Texas law still regulate marijuana as a controlled substance. And whether marijuana is legal or not, Section 49.02(2)'s definition of intoxication reaches the effect of legal drugs. You may face credible drug DWI with a child passenger charges based on marijuana use, even long-prior use still detected days or weeks later in a urine or blood test of your system. On the other hand, marijuana legalization, especially for its medical or other therapeutic use, may have influenced certain police, prosecutors, or courts in certain DWI cases. A felony DWI charge relating to the therapeutic use of marijuana could look to some like a disproportionate charge. Yet that grace may not necessarily extend to the felony charge of drug DWI with a child passenger. Your outcome likely depends on the full circumstances. Retain DWI Specialist attorney Murphy for your best outcome to marijuana DWI with a child passenger charges.
Defending Drug DWI with Child Passenger
You can see from the above considerations that a drug DWI with a child passenger charge presents a special set of defense circumstances. The charge is a felony rather than a misdemeanor, significantly raising your stakes. The charge is unusual for drugs rather than alcohol, raising a different set of strategic opportunities and challenges. Drug detection can be a significant issue, raising the possibility of forensic defenses. The type and quantity of the drug can influence the charge and outcome. And the nature of the child endangerment can also influence the charge and outcome, whether, for instance, the case involved multiple children, very young children, the driver's own children, or other children, and overtly reckless driving, with low or high drug concentrations. Your retained DWI Specialist must have the refined skills and substantial experience to address each of these unusual factors strategically and effectively for your best outcome. Your retained DWI Specialist's strategies for defending a drug DWI with a child passenger charges may include any or all of these approaches and services:
- plea negotiation for charge reduction and charge diversion;
- referral for prompt voluntary drug or driving education;
- referral for prompt evaluation and diagnosis of drug conditions;
- medical adjustment of prescription medication regimens;
- challenges to drug testing, including the DRE protocol;
- challenges for lack of reasonable suspicion and probable cause;
- motions to suppress evidence;
- cross-examination of police officers and lab technicians;
- retention of medical and pharmaceutical experts on drug effects;
- ALR hearing representation and advocacy;
- representation in related professional license proceedings; and
- communication with employers and others controlling your interests.
Premier Drug DWI with Child Passenger Defense Services
When you face Texas drug DWI with a child passenger charges, you face an unusual but very serious charge. You also face a charge that can have widely varying outcomes depending on widely varying facts and circumstances. For your best outcome, you need premier Texas DWI Specialist representation. Houston area lawyers voted Texas DWI Specialist attorney Doug Murphy the Best Lawyers in America 2021 and 2023 Houston Lawyer of the Year for DWI Defense. Attorney Murphy also regularly lectures to lawyers and judges nationwide on DWI defense, proving his highest reputation among those who would know quality defense services. Retain the best available Texas DWI Specialist for your best outcome to drug DWI with a child passenger charges. Call (713) 229-8333 or go online now.
