A Texas DWI arrest with multiple child passengers in the vehicle is a very serious matter. When the DWI offense involves a child passenger in the vehicle that the defendant driver was operating when arrested on the DWI, Texas criminal law enhances the typical first-offense DWI charge from a simple Class B misdemeanor all the way to a state jail felony. A Texas DWI with a child passenger is a felony, not a misdemeanor, crime. Felony DWI charges involving child passengers can have other serious collateral consequences. Those collateral consequences can include driver's license administrative suspension and potential effects on professional licenses and employment. But the collateral consequences of a DWI with child passengers can also include potentially affecting child custody. Having multiple child passengers in the vehicle and at risk of injury can further complicate the felony DWI with child passenger charge. If you face a Texas DWI with child passenger charge, including a charge involving multiple child passengers, retain premier DWI Specialist defense attorney Doug Murphy for the best possible outcome to the criminal charges and related proceedings.
DWI Arrest of Parents with Multiple Children
Parents who have more than one child naturally have good reason to have more than one child in their vehicle. Families with multiple children often transport those children together, whether to school, for recreational activities, on errands, for medical examination and treatment, and for a host of other reasons. Some of those activities can be social, including where the parents eat and drink. A parent may even imbibe alcohol or ingest another intoxicant on one of those occasions, such as a sporting event where the forum serves beer or a social gathering where the host makes wine or mixed drinks available. Parents also take prescription medication and other drugs and even use cannabis or derivatives therapeutically or recreationally. Any of these entirely innocent or relatively innocent activities could result in suspicions and DWI arrest. All that a parent with multiple children in the vehicle has to do to potentially suffer a traffic stop and DWI arrest is to make a driving mistake like failing to signal, excessive speed, or crossing the centerline. Parents with multiple children in the vehicle can suffer felony DWI arrest, even without obvious recklessness around drinking and driving.
Other Multiple Child Passengers Situations
For other vehicle operators at certain times of life, having multiple child passengers in their vehicle is not that unusual, even though they may not be parents of multiple children. School bus drivers and drivers of general transportation buses and vans would be obvious examples. But you don't have to be a bus driver to have multiple children in your vehicle. Parents carpool to take children to school and pick up children after school. Grandparents pick up grandchildren and their friends for trips to the pool, playground, or museum. Teachers and coaches take groups of children to school athletic practices and events, while teachers and volunteers take groups of children on field trips and to band, choir, and drama performances. And aunts, uncles, other relatives, and friends take groups of children to plays, ball games, zoos, and all kinds of other social, cultural, and recreational events. Some of those events include food and drink, even intoxicating drinks. And keep in mind, too, that Texas DWI laws reach and criminalize intoxicated driving due to prescription drugs, sleeping pills, cannabis or derivatives, and other substances, not to mention open containers in the vehicle and other DWI-related crimes. Responsible parents and chaperones can sometimes run afoul of Texas DWI laws in relatively innocent-seeming circumstances. A felony DWI charge involving multiple child passengers doesn't typically involve a hardened criminal defendant. Just the opposite is more often true: defendants in these circumstances are often among the most trusted and responsible of individuals.
Texas's Felony DWI with Child Passenger Crime
Texas Penal Code Section 49.045(a) defines the DWI with a child passenger crime as follows: “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.” While the statute numbers only two elements, Texas's felony DWI charge with a child passenger, in fact, requires the prosecution to prove several elements. The defendant must have (1) operated a motor vehicle (2) in a place accessible to the public (3) while intoxicated (4) with a child under the age of fifteen in the vehicle. If the prosecution fails to prove each element of the charge beyond a reasonable doubt, then the charge should fail. The felony DWI with child passenger charge has the important public policy purpose of protecting child safety. The child need not have suffered any injury. Serious bodily injury to another due to the intoxicated operation of a motor vehicle in a public place is a separate Texas felony crime called intoxication assault. The policy behind the child passenger DWI crime presumes that the child is at risk of injury or other harm while in a vehicle whose operator is intoxicated. The felony DWI child passenger crime discourages intoxicated drivers from transporting child passengers. Texas's felony DWI child passenger crime is complete with just one child passenger.
Multiple Child Passenger DWIs
Texas criminal law treats a DWI arrest with multiple child passengers in the vehicle much as it treats a DWI arrest with a single child passenger in the vehicle. A parent or other person who operates a motor vehicle in a public place while intoxicated, with multiple child passengers, should ordinarily face only a single felony DWI child passenger charge, despite the presence of more than one child in the vehicle. The Texas Court of Appeals in State v Bara, 500 S.W.3d 582 (Tex. App. 2016), held that the prosecution may only charge one offense under Section 49.045, not two or more offenses, when the vehicle contained multiple child passengers. The Bara defendant had two children under the age of fifteen in the vehicle but maintained that two charges would constitute unconstitutional double jeopardy. The appellate court agreed, permitting only one conviction to stand despite the two children in the vehicle. The appellate court held that the driving incident determines the charge, not the number of children under the age of fifteen. Strictly as far as the criminal charge goes, and not necessarily for other purposes, one child under age fifteen in the vehicle is as bad as two or more children under age fifteen.
Other Related Texas Crimes
Having more than one child in the vehicle at the time of a DWI arrest, though, could influence a prosecutor to pursue other related charges. Texas Penal Code Section 22.04, for instance, authorizes charges for reckless injury to a child. When a child passenger suffers injury in a DWI accident, charges under the reckless injury statute are possible. The prosecution must show that the defendant committed the offense “intentionally, knowingly, recklessly, or with criminal negligence” and that the defendant's act or omission caused the child either bodily injury or serious mental deficiency, impairment, or injury. Proof of recklessness or criminal negligence adds substantially to the prosecutor's burden. But again, if the defendant exposed multiple child passengers to injury, and at least one child suffered injury, the likelihood is greater that prosecutors will pursue reckless injury charges.
Child Removal for DWI with Multiple Child Passengers
Removal of the children from the defendant parent's home is an even bigger risk in the case of a DWI charge with multiple child passengers. The felony DWI charge is serious, but the removal of children could be just as serious or more serious as a collateral consequence of the felony charge. Texas's Family Code requires officials who suspect child endangerment or abuse to report the concerns to child protective services. Texas prosecutors construe a DWI charge with child passengers as reportable endangerment under the Family Code. As soon as the prosecutor files a felony DWI with child passenger charge against you, the prosecutor will also forward the child-endangerment report to protective services for investigation. Protective services could then seek to remove your children from your custody, if they find that your felony DWI arrest is sufficient evidence of endangerment. Protective services might place your children with a willing and capable family member or, if no family member is available, take them into custody for temporary foster placement. If your children are already under a Family Court order relating to a paternity, separation, or divorce proceeding, then your felony DWI arrest could cause you to lose custody or parenting time rights under that order. Retain the best available DWI Specialist representation to preserve your rights and relationship with your children, in the face of a felony DWI charge.
Defending DWI with Child Passenger Charges
Fortunately, you and your retained DWI Specialist defense attorney have much you can and should do to fight felony DWI with child passengers charges. Just because you face a felony DWI charge does not mean that the court will convict you of that charge. When you retain a skilled and experienced DWI Specialist for your defense of a DWI with children passengers charge, your attorney may raise and advocate multiple affirmative defenses to the charge. Prevailing on any one or more of these defenses could result in the prosecution abandoning or reducing the felony DWI charge, the court dismissing the felony DWI charge, or the prosecution offering an acceptable plea bargain. Premier DWI Specialist defense attorney Doug Murphy may recommend and aggressively and effectively pursue one or more of the following defenses to your felony DWI with child passengers charge:
- the arresting officer may have lacked reasonable suspicion for stopping your vehicle, so that any resulting evidence becomes inadmissible under the exclusionary rule;
- the arresting officer may have lacked probable cause for sobriety testing to investigate and confirm your intoxication, so that incriminating test results are inadmissible;
- the arresting officer may have lacked probable cause to search your vehicle, so that any observations of child passengers or of open containers, drugs or paraphernalia, and other evidence within the vehicle are inadmissible;
- the investigating officer's sobriety test results may be invalid and unreliable because of the training, methods, observations, and records involved;
- laboratory test results regarding intoxication levels may be unreliable because of the failure to properly obtain, preserve, store, and retrieve samples for testing;
- test results may further be unreliable for failure to calibrate, maintain, and properly operate testing equipment;
- other violations of your constitutional rights against unreasonable search and seizure may have occurred, requiring the suppression of evidence; and
- violations of your Miranda rights may have occurred requiring that the court bar as inadmissible any admissions you made of misconduct.
Protective Procedures for DWI with Child Passengers Charges
Texas law and court rules offer several key protective criminal procedures that enable your DWI Specialist defense attorney to raise and advocate the above defenses. It's not enough to have a defense. Your defense attorney must be skillful and effective in deploying the defense to your best advantage. Criminal procedures determine how, when, and where your DWI Specialist can raise and argue the above defenses, to gain dismissal of the felony DWI charge, charge reduction, or another advantage. Premier Texas DWI Specialist defense attorney Doug Murphy may be able to invoke one or more of the following criminal procedures for your effective defense of felony DWI with child passengers charges:
- appearing at your arraignment on the felony DWI charges to enter your not-guilty plea, help you understand the nature of the charges, learn about the prosecution's case, and respond to the court's inquiries and requirements;
- invoking your preliminary examination rights to challenge, test, and evaluate the prosecution's evidence, with the potential for dismissal of unsupported charges;
- requesting an Administrative License Revocation (ALR) hearing not only to preserve your driver's license but also to discover, evaluate, and challenge the prosecution's evidence;
- requesting discovery of the prosecution's evidence, both incriminating evidence for evaluation and challenge, and exonerating evidence to show the error of the charges;
- retaining forensic experts and other expert witnesses for review, report, and testimony on matters of special technical and scientific knowledge, to challenge the prosecution's evidence;
- moving to suppress evidence that the police and prosecution obtained through the violation of your constitutional, statutory, and procedural rights, arguing for dismissal of the charges;
- communicating, advocating, and negotiating with the prosecution to voluntarily abandon charges, reduce charges, or otherwise propose acceptable plea bargains;
- invoking your jury trial rights and conducting opening statement, cross-examination of prosecution witnesses, direct examination of your defense witnesses, and closing argument;
- evaluating and pursuing your appeal rights to challenge court rulings, orders, and judgments constituting legal errors or other irregularities in the proceeding like prosecutor, police, witness, or juror misconduct.
Defense Themes for DWI with Child Passengers Charges
A felony DWI charge involving multiple child passengers can sound like a very bad DWI charge. The prosecution's inevitable stance will be that the conduct exposed multiple children to harm, making the crime much more reprehensible than the basic misdemeanor DWI charge. But the same circumstances that make a felony DWI with child passengers charge appear especially reprehensible could, with skilled DWI Specialist defense representation, turn a case more to the defendant's favor. Many DWI arrests occur after the defendant has just left a bar, club, or other social outing. Parents, though, generally transport their children for very different, and arguably much better, reasons. Your DWI arrest with your children may have occurred not coming home from a bar or club but instead on the way to or from school, grocery shopping, medical care, visits with relatives, or other laudable and even important family activities. Your transport of your children, although allegedly while intoxicated, may have indicated your good responsibility for and clear accountability to your family duties, just the sort of thing that judges, jurors, and even prosecutors tend to recognize as beneficial to society and worthy of society's support and indulgence. Trust DWI Specialist defense attorney Doug Murphy to articulate an appropriate defense theme to counteract the potentially damaging inferences others may draw from a felony DWI with child passengers charge.
Premier DWI Specialist Defense Attorney
Facing a felony DWI charge involving multiple child passengers is a daunting situation requiring the utmost attention, commitment, and care. The potential penalties are enough to frighten anyone. The wisest thing to do in that situation is to retain Texas DWI Specialist defense attorney Doug Murphy for his substantial experience and premier reputation and skills. Attorney Murphy, who regularly speaks to lawyers and judges nationwide on DWI defense issues, is one of only two attorneys holding both Texas DWI Specialist and Texas Criminal Law Specialist certification. Attorney Murphy, who is also Best Lawyer's 2023 Lawyer of the Year for DWI Defense, serves on local Houston-area and statewide Texas Criminal Defense Lawyers Association committees and boards. Trust attorney Murphy for the premier skills, experience, and reputation you need for the best outcome to your felony DWI charges involving multiple child passengers. Call (713) 229-8333 or go online now.