Anyone arrested for a DWI with a child passenger in the vehicle faces a serious criminal charge. Even if the child suffers no harm whatsoever, Texas law elevates the basic DWI charge, typically a Class B misdemeanor for a first offense, into a more-serious state jail felony charge. But if the driver's intoxication causes an accident that seriously injures the child, the driver can face a separate intoxication assault charge, typically a third-degree felony. In short, the DWI defendant can face two serious felony criminal charges rather than a single misdemeanor charge, in the unusual case of a DWI with a child passenger who suffers a serious injury. Other charges and complications can also arise. Retain premier Texas DWI Specialist defense attorney Doug Murphy in the very unfortunate event that you face any such charges. Get the special help you need for the best outcome in this most difficult circumstance.
The Intoxication Assault Charge
Texas labels “intoxication assault” the DWI criminal charge when the intoxication causes another's serious injury, whether that injury is to an adult or child. For the intoxication assault crime, Texas Penal Code Section 49.07 requires the prosecutor to prove that the defendant caused, by reason of intoxication, the serious bodily injury of another, while operating a motor vehicle in a public place. Fault is technically not an element of Texas's intoxication assault crime. Texas Penal Code Section 49.07(a) states expressly that the defendant commits the intoxication assault crime whether the intoxication causes serious bodily injury to another “by accident or mistake.” Section 49.07(b) defines serious bodily injury to mean “injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Section 49.07(c) makes the intoxication assault crime a third degree felony carrying a sentence of from two to ten years of imprisonment and a fine up to $10,000. Other consequences include license suspension, drug or alcohol education, ignition interlock, community service, and court costs. A prosecutor may not charge and convict on both an intoxication assault crime and the underlying basic DWI first-offense crime. The basic DWI crime is a lesser included offense of the intoxication assault crime.
The DWI with Child Passenger Charge
A DWI with a child passenger is a separate crime from the basic first-offense DWI crime. Texas Penal Code Section 49.045 defines the DWI with a child passenger crime as follows: “(a) 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. (b) An offense under this section is a state jail felony.” Notice that the child must be under age fifteen, not just a minor under age eighteen but a child age fourteen or younger. Because the basic first-offense DWI crime is a lesser included offense for the DWI with a child passenger crime, a prosecutor cannot charge and convict on both crimes. To do so would be unconstitutional double jeopardy. If a child was in the vehicle, the prosecutor is very likely to charge the more-serious DWI with a child passenger crime.
Charging Intoxication Assault and DWI with a Child Passenger
While a prosecutor may not charge and convict on both the basic DWI crime and the DWI with a child passenger crime, a prosecutor may charge both the DWI with a child passenger crime and the intoxication assault crime. The basic DWI crime is a lesser included offense of both intoxication assault and DWI with a child passenger. But intoxication assault has a different element, serious injury to another, from DWI with a child passenger, which has its own different element, a child in the vehicle, from the intoxication assault crime. Neither crime is a lesser included offense of the other. A prosecutor may charge both crimes.
Other Potential Complications
While the above two charges are the most likely charges, prosecutors could potentially seek other charges. Texas Penal Code Section 22.04, for example, authorizes charges for reckless injury to a child: “(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child…: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury.” Moreover, child protective services could seek to remove the child or children from the defendant's custody. Beware of other potential complications. What, for instance, if you have two or more children in the vehicle at the time of the accident and DWI arrest? In State v Bara, 500 S.W.3d 582 (Tex. App. 2016), the Texas Court of Appeals held that the prosecution may only charge one offense under Section 49.045, not two or more offenses. The driving incident, not the number of children, determines the charge.
Defending DWI with an Injured Child Passenger Charges
Just because a defendant faces two serious DWI charges after intoxicated driving injures a child passenger doesn't mean the defendant will suffer conviction on any DWI charge. Defenses to the charges may be available. Your retained Texas DWI Specialist may challenge the officer's probable cause or reasonable suspicion for stopping, arresting, and investigating, challenge sobriety test results, and move to suppress test evidence for violation of your constitutional rights. Retain 2023 Houston DWI Defense Lawyer of the Year Doug Murphy to aggressively and effectively assert these and other defenses to your charges. Attorney Murphy is one of only two Texas lawyers board certified in both DWI defense and criminal law defense. Call (713) 229-8333 or go online now to retain premier Houston DWI defense attorney Doug Murphy.
