Imagine this scenario: you're out for dinner with your spouse and kids. You have two glasses of wine with dinner. As 9 o' clock rolls around, it's time to get the kids home and tucked in bed. On the commute back, you're a touch sleepy and still have a little wine in you, even though you re not impaired. You want to get home and dive into bed as soon as possible - your foot gets a little heavier and you pick up speed. You pass that one corner notorious where officers are on the lookout.
Suddenly, the dreaded red and blue lights are flashing behind your car and you find yourself pulling over, reaching for your registration, the children fast asleep in the backseat. The officer becomes suspicious from the smell of wine on your breath and asks you to step out for field sobriety tests. You've been up since 6 am, you're exhausted, and had wine at dinner. You stumble during the one leg stand because you are tired and extremely nervous and are asked to blow into the breathalyzer. And just like that, a simple family dinner has generated a felony charge. This is one of the countless possible scenarios.
No one can foresee the circumstances that will lead to them driving with a child after drinking. So, what happens when you are charged with a DWI with a child passenger in Texas?
DWI with Child Passenger under Texas Law
According to Texas Penal Code Chapter 12 § 49.045, when a person operates a motor vehicle while intoxicated on a public road and a child under the age of 15 is in the same vehicle while the intoxicated person operates it, the latter person can be arrested for felony DWI with Child Passenger. A DWI with a child passenger is a separate charge from a DWI. While a DWI is a Class B misdemeanor, a DWI with a child passenger is a state jail felony.
Penalties for a DWI with Child Passenger Conviction
Chapter 12 of the Texas Penal Code provides the statutory penalties for DWI with child passenger offense. If you have been charged with this offense, which is a state jail felony (SJF), you are facing a driver's license suspension for 180 days, the possibility of a minimum jail sentence of 180 days up to two years and/or a fine up to $10,000. If convicted, the sentencing judge can add other penalties to the sentence, and some of these other penalties include:
- Community service up to 1,000 hours for a felony offense
- Installation of an ignition interlock device
- Completion of an alcohol or drug education course
- Attendance at a DWI school or repeat offender DWI school, and/or
- Any additional fees required by the court.
In Texas, the inclusion or extent of these additional penalties will depend on several factors, including:
- Impaired driver has prior felony convictions generally
- Impaired driver has prior DWI convictions specifically
- Impaired driver causes an accident and either causes serious bodily injury to the child passenger, another passenger of the same or another vehicle, or a pedestrian
- Impaired driver causes an accident and a passenger or pedestrian is killed.
If some above examples transpire, then additional charges likely accompanied the DWI with Child Passenger charge. If the child passenger is injured in a crash caused by the suspected drunk driver, the driver could also be charged with intoxication assault with serious bodily injury. If more than one person is injured, then the suspected drunk driver could face multiple intoxication assault charges in addition to the DWI with child passenger. Likewise, if the suspected drunk driver with a child passenger causes an auto accident and someone is killed, the driver could be charged with intoxication manslaughter in addition to the DWI with child passenger charge.
Additionally, if the driver has a prior felony conviction(s) when he or she is charged with a felony DWI with a child passenger, then he or she may be considered a habitual criminal offender and the penalties will reflect this status.
Collateral Consequences of DWI with Child Passenger Charge
Criminal and civil penalties are severe, but drinking and driving with children in the vehicle create conditions that could lead to a tragedy. Because of the latter, collateral consequences of the charge alone are significant and unlike any other collateral damages associated with most other crimes. The collateral consequences include the typical consequences associated with having a criminal record, problems with CPS if you have children, and the loss of certain rights that most other citizens hold dear to them.
Collateral Consequences: General
Typical collateral consequences include difficulties with overcoming a stigma due to having a criminal background, finding a job, acquiring or keeping a professional license, obtaining or maintaining scholarships or school loans, and securing housing.
Collateral Consequences: Child Protection Services
In addition to these collateral consequences, a person charged with DWI with a child passenger in Texas faces potential problems with Child Protection Services (CPS). The Texas Family Code requires professionals to report any suspected child abuse or neglect to CPS. In accordance with this law, a prosecutor will file a report to CPS as soon as you are charged with a DWI if your child or children were in the car. The ramifications of this report are long-term and potentially devastating. Some ramifications include:
- If the police cannot locate another family member, the child or children will be taken into CPS custody at the time of arrest.
- If you are in the middle of a divorce, this charge -- not even a conviction -- can and will affect child custody matters regardless if those matters were already settled.
- If you already have shared custody or a visitation agreement, this charge and/or subsequent conviction could complicate the agreement.
Collateral Consequences: Loss of Constitutional Rights
Even if the child was not your own, you still face additional collateral consequences, namely the loss of three specific constitutional rights. As a convicted felon, you lose:
- The Right to Vote
- The Right to Bear Arms
- The Right/Duty to Serve on a Jury
A felony DWI with child passenger conviction basically means you are no longer able to exercise certain civic responsibilities as well as possess a firearm. The latter is especially problematic if your career depends on your possession of a firearm, e.g. police officer, a border patrol agent, member of the military, or security guard. These things affect your career and overall quality of life.
You should not let a DWI with child passenger charge lead to a conviction. You owe it to yourself to fight the charge to protect your future. Fortunately, an experienced, reputable DWI lawyer can help you. Houston, Texas DWI attorney Doug Murphy has the experience, the knowledge, the resources, and the skilled reputation to help you.
Defending a Charge of DWI with Child Passenger in Houston and through Texas
You have the right to fight back against a charge of DWI with a child passenger. In many cases, this defense will be similar to any other DWI charge. However, this offense also includes the additional element that a child under the age of 15 was also in the vehicle. Showing that the state has failed to establish even one of the elements of the crime is enough to avoid a conviction. Below, we discuss some of the most common strategies in a DWI with Child Passenger case.
One simple but effective defense in many cases is to do little more than hold the prosecution to their burden of proof. The state must prove every element of the crime of DWI with a child passenger against you, and the jury must acquit you if they fail to do so. This might be an option if your blood alcohol concentration (BAC) was at or below the legal limit, or if there was little evidence of your intoxication.
Challenging the Traffic Stop
The first step in defending any DWI case, including a felony DWI with child passenger under 15, is to challenge the reason the police pulled you over. Many times the stated reason for the stop is a subjective opinion that is not supported by a reasonable basis in fact. Law enforcement does not have free reign to stop every car they see. An officer must have reasonable suspicion that you are driving while intoxicated or committing some other traffic violation to stop you. This could include anything from speeding to running a stop sign. If the police lacked reasonable suspicion to stop your vehicle, your attorney could suppress any evidence collected at or following the traffic stop. An experienced, skilled, and Board Certified DWI lawyer knows how to successfully expose and challenge illegal stops and intrusions into American citizen's right to be free from unreasonable search and seizure.
Challenging the Detention
The second step is to challenge the basis for detaining to investigate for DWI after the stated reason the stop. The police are required by the U.S. Supreme Court and the Texas Court of Criminal Appeals to utilize the least intrusive means to quickly dispel or confirm any evidence to further justify releasing or continuing to investigate for a crime. Many times police officers violate the law when they fail to investigate or provide an articulate and reasonable suspicion that criminal activity is afoot. An experienced, skilled, and Board Certified DWI lawyer knows how to successfully challenge illegal detentions that result in unreasonable intrusions into American's right to be free from unreasonable searches and seizures.
Challenging the Roadside Balance Exercises
If you voluntarily did the police officer's gymnastic exercises on the side of the road, these subjective pool tools can easily be challenged. First, not every person is a candidate for these balance and coordination tricks. Even healthy sober people can fail these police exercises. Secondly, the manner in which police score these exercises is patently unfair and incredibly subjective. Police officers assign a clue for anything even if it is caused by cars flying by, the weather, nervousness, and police not properly advising the person what to do. These police exercises are referred to as "field sobriety. tests" Rest assured that these exercises are not scientifically accurate. A skilled and Board Certified DWI lawyer knows how to exclude your performance on these exercises from evidence, or minimize and mitigate the weight the jury will provide them as evidence at trial.
Challenging the Test
If you submitted to a blood, breath, or urine test to determine your BAC at the time of the arrest, there are a number of ways of challenging that test in court. The result of your test is only accurate if the individuals that collected and tested the sample followed the appropriate protocols.
In some cases, the officer collecting the sample can contaminate it. That can occur by failing to wait the required amount of time before initiating a breathalyzer. For blood or urine samples, any contact with another substance could lead to contamination.
It is possible to challenge the test based on mistakes made in the lab as well. Lab employees that contaminate samples, mix up specimens, or fail to follow other testing protocols could also cause a false-positive test result. Any of the behavior can lead to a successful motion to suppress the test results.
Ultimately, the difference between this offense and a misdemeanor DWI is the presence of a child under the age of 15 in the vehicle with you. In some cases, the state could have mistakenly charged you with this offense based on a misunderstanding. For instance, if the minor in your vehicle was actually 15 years old or above, your Board Certified DWI expert can have the charge dismissed. That does not mean you would be immune to prosecution for a standard DWI, but the potential penalties are much lower.
These are just a small sample of many defenses available.
Blood Tests and Suspect DWI Cases with Child Passengers
Up until a few years ago, before the United States Supreme Court decision in Missouri v. McNeely (2013), Texas law officers were permitted by Texas law to force -- without consent and without a warrant -- a driver to submit to a blood alcohol content test in certain circumstances. One of these circumstances included suspicion of driving under the influence with a child passenger in the same vehicle. The results of these tests were admissible in court as evidence unless a defense attorney could find a legal basis to exclude it.
The Supreme Court's decision in McNeely clarified the law and made it a requirement to obtain warrants for searches when a person does not consent to a blood draw for a blood test. To compensate for this change in Texas law, more and more magistrates stay on duty 24/7 in many municipalities and counties. Other places have instituted “no refusal weekends” where judges remain on-call for this very purpose: to approve search warrants during the weekends, regardless the time of day or night it is.
Houston DWI attorney Doug Murphy routinely teaches lawyers at continuing legal education seminars how to defeat search warrants, and how to successfully challenge blood testing procedures. A person charged with a DWI with child passenger offense needs an experienced, reputable DWI lawyer who is knowledgeable about the relevant laws, including search and seizure, the procedures and science of blood tests, and police procedures. Doug Murphy is known as one of the best DWI lawyers in Texas.
Seek Legal Representation Right Away
A state jail felony carries stiff penalties that could threaten your career, reputation, and livelihood - not to mention your ability to provide for the livelihood of your kids. It is imperative that you speak to an experienced Houston, Texas DWI attorney and fight your DWI with a child passenger charge. Doug Murphy is devoted to providing a powerhouse defense in your DWI case. Experienced Houston and Board Certified DWI attorney Doug Murphy will use all the applicable and appropriate legal means available to help you fight this charge, so you are free to move on with life. Do not let a Texas DWI with a Child Passenger charge put your rights in jeopardy. Get the skilled legal counsel you need and contact Doug Murphy today.