Unfortunately, it is all too common for those going through a divorce to be arrested for DWI. If you're facing a DWI charge in Texas, it can be stressful and frightening. You're undoubtedly worried about the consequences of a conviction, including possible jail time and losing your driver's license. But if it happens with a child in the car, the consequences can be even more serious. If you're divorced, separated, or in the process of divorcing, a conviction for driving while intoxicated or DWI with a child passenger could significantly impact your custody and visitation.
Driving While Intoxicated in Texas
In Texas, the police can arrest you for driving while intoxicated even if your blood alcohol content is below the legal limit of .08%. That's because Texas law defines “intoxicated” pretty broadly. The statute states that someone is “intoxicated” if they:
[Don't have] 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; or having an alcohol concentration of 0.08 or more.
Tex. Penal Code § 49.01 (2001). That means the police may arrest you for DWI if you a driving a motor vehicle in public and:
- Your BAC is over .08% or .04% if you have a commercial driver's license, or
- You no longer have the normal use of your mental or physical faculties.
It's important to remember that it's highly subjective for the police to judge whether you have the normal use of your faculties.
Penalties for DWI in Texas
Typically, a first DWI in Texas is a Class B Misdemeanor punishable by up to 180 days in jail, a one-year license suspension, a $2,000 court-ordered fine, and a mandatory $3,000 administrative fine. However, if there are aggravating circumstances such as a serious accident, a child in the car, or a BAC over .15% associated with your DWI or if you have prior convictions for DWI, you could face steeper penalties.
A second DWI in Texas is typically a Class A Misdemeanor punishable by up to a year in jail and a $4,000 fine. You'll also face a license suspension of up to two years and a mandatory administrative fine of $4,500 for a second DWI within 36 months or $6,000 for a BAC over .15%.
A third or subsequent DWI in Texas is a felony. A third DWI is a third-degree felony, and a fourth DWI can be a second-degree felony. Penalties for these convictions can include up to ten or twenty years in prison and a $10,000 fine. You will also face a license suspension and mandatory administrative fines of $3,000 to $6,000, depending on the circumstances of the DWI.
DWI With a Child Passenger
While your first DWI charge will typically be a misdemeanor in Texas, that changes if you have a child under 15 in the car with you at the time of your arrest. DWI with a child passenger is a felony in Texas. Tex. Penal Code § 49.045 (2003). If convicted of a state jail felony for a DWI with a child passenger, you will have a felony criminal record, and you could spend up to two years in jail and must pay a fine of up to $10,000.
Divorce, Custody, and Felony DWI
Child custody can be one of the most hotly contested issues in a divorce. When you and your spouse ask the court to decide custody issues, the court will determine who makes major decisions for your children, such as health, education, and religion. The court will also determine “possession and access,” meaning whether one parent will have primary physical custody or the parents will have joint physical custody, along with a visitation schedule.
In evaluating custody issues, the court will make decisions in the “best interests of the child.” Part of this evaluation involves the court examining the child's safety and considering many family-specific factors. But among the issues the court will consider are:
- Your arrest record and any convictions,
- Any history of alcohol or drug abuse,
- The safety of the child in the custody of each parent,
- Parenting skills and judgment,
- The child's age and vulnerability,
- The willingness of each parent to affect change in the home quickly, and
- Whether you have a safe home environment.
See Tex. Fam. Code § 263.307 (2021). If you have a conviction for DWI, it can affect your custody and visitation, but a conviction for DWI with a child passenger is more likely to impact your arrangements significantly. A court may be unlikely to allow custody and be likely to place restrictions on visitation if the judge believes that you may drink and drive with your child in the car.
You Need an Expert in Texas DWI Law
If you're facing a DWI or a DWI with a child passenger, there can be long-lasting consequences to a conviction, particularly if your child custody arrangements or visitation are on the line. This isn't a legal matter you should try to navigate on your own. You need an expert in DWI defense who understands the dire consequences a felony conviction can have on your custody arrangements.
Attorney Doug Murphy is just such an expert in DWI defense. He holds Board Certifications in DWI Defense from the National College for DUI Defense and is accredited by the Texas Board of Legal Specialization and the American Bar Association, and Criminal Defense Law from the Texas Board of Legal Specialization.
U.S. News and World Report also recently named Doug Lawyer of the Year by the Best Lawyers in America list for Houston DWI defense for 2023. Doug and the experienced lawyers at the Doug Murphy Law Firm have been on both sides of the aisles as prosecutors and defense attorneys, giving them keen insight into how to defend and negotiate on your behalf. They've been successfully defending complex DWI felony cases for years, and they can help you too. Contact Doug and his skilled team online or give them a call at 713-229-8333 to schedule your consultation.