We all know that feeling you get when you see those blue lights flashing in your rearview mirror. A traffic stop is never fun, but it can become even worse when it turns into a suspected DWI stop. But if you have a child in the car with you, it can be downright traumatic. An arrest for a DWI is frightening for anyone, but it can be terrifying for both of you when your child is there. And there can be long-term consequences. Seeing a parent arrested could be your child's first interaction with the police. No matter their age, this can be a harrowing experience for your child, you, and your entire family.
Driving While Intoxicated in Texas
Under Texas law, you can face a DWI arrest even if your blood alcohol content is below the legal limit. Our statutes define someone as intoxicated in two ways. You can be “intoxicated” if you:
[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). So, you can face a DWI arrest if you're driving a motor vehicle in a public place and:
- You have a BAC of .08% or higher, or .04% or higher if you have a commercial driver's license, or
- If you no longer have the normal use of your physical and mental faculties.
Whether or not you have the “normal use” of your faculties is a subjective standard based on the judgment of the arresting police officer. However, the measurement of your BAC is usually a bit more objective, using a blood or breathalyzer test.
A first DWI in Texas is usually a Class B misdemeanor, punishable by up to 180 days in jail, a $2,000 fine, and a one-year license suspension. You'll also face a mandatory administrative fine of $3,000. However, you can face more severe penalties if there are aggravating circumstances with your DWI arrest. Aggravating circumstances can include:
- A BAC over .15%,
- Causing an accident, serious injury, or death,
- Prior DWI convictions, and
- Having a child under 15 in the car.
DWI With a Child Passenger in Texas
If your DWI arrest happens while you have a child under 15 in the car, you'll face an additional charge for DWI with a child passenger. Under Texas Penal Code § 49.045, this crime is a state jail felony. If convicted, you can spend up to two years in jail, pay up to $10,000 in court-ordered fines, and have your license suspended automatically for at least 180 days. This charge will be in addition to your charge for the DWI.
What Happens During a DWI Arrest with a Child Passenger?
When the police decide to take you into custody, they may try to contact other family members to come to pick up your child. However, if they can't locate anyone, they may have Child Protective Services take your child into custody. Your child could be in an overnight facility or an emergency foster home. For all children, this can be traumatic, but particularly for younger children who can't understand what is happening or can't reach out to additional family and friends on their own.
Possible Effects on Your Family
An arrest can be traumatic for you, your child, and your entire family, with serious emotional and financial consequences. Witnessing your arrest, having a parent in prison, a possible child protective services investigation, and shake-ups to child custody arrangements can all be emotionally and financially devastating for your family.
Witnessing Your Arrest
Moreover, if you are a family of color, witnessing your arrest could have even more of an emotional impact on your child. They may worry for your safety or even your life and feel helpless because they can't do anything to help. On top of this, CPS may end up taking your child into custody at the time of your arrest if the police are unable to locate any other family members. This can leave your child in an unfamiliar place, with strangers, unable to comprehend what's happened to her parent.
It's hard to detail all the emotional repercussions to a family and children if one of their parents or parental figures ends up in jail. According to the Population Reference Bureau, children of incarcerated parents are a vulnerable group and far more likely to experience behavioral problems and physical and mental health concerns than their peers. If you are a single parent, the consequences can be even starker, particularly if you don't have family or friends willing or able to become guardians for your child during your jail term. Your children could end up in the custody of CPS or with foster parents.
There are also financial repercussions that come with a felony conviction. You'll face court-imposed fines and additional mandatory administrative fines, but that's only the beginning. Even for a financially stable family, having a primary income earner in jail for an extended period can be a big financial blow. Losing your job or a professional license can mean financial instability for a long time.
Child Protective Services Investigation
If you're arrested for DWI with a child passenger, you may also face an investigation from Child Protective Services. Under Texas law, “child endangerment” happens when you put a child under 15 at risk of injury, physical impairment, or death. When you're arrested for DWI with a child passenger, the police officer will also file a report with CPS. CPS will then investigate a potential threat to your child. CPS may:
- Interview you, your family, and anyone close to your family,
- Interview your child's teachers, coaches, and healthcare providers,
- Inspect your home and examine your children for possible injuries or signs of abuse,
- Examine your child's school records, police reports, or any earlier CPS investigations, and
- Request and review physical or mental health exams.
If CPS initiates an investigation, it's a good idea to contact a lawyer immediately. An experienced Texas attorney can guide you through the process and ensure that CPS doesn't violate your rights as a parent.
Divorce and Child Custody Issues
If you're divorced and share custody and visitation with an ex-partner, an arrest for DWI with your child in the vehicle can affect your future time with your child. In addition to a CPS investigation, you may also face a challenge to your custody or visitation arrangement from a co-parent.
Custody battles are often hotly contested, and if you're in the middle of a divorce, the court will be ruling on who will make major decisions for your child and determine who has “possession and access,” meaning whether one parent will have primary physical custody or whether you will both have joint physical custody and a visitation schedule. Even if you're already divorced with an established routine, your co-parent can ask the court to change custody and visitation after your DWI with a child passenger.
When establishing custody and visitation, the court will make decisions in the “best interests of the child.” As part of this evaluation, the court will look at many family-specific factors and the child's safety. Some of the factors the court considers include:
- Your criminal record, including any arrests and convictions,
- Either parent's history of alcohol or drug abuse,
- Whether the child is safe in the custody of each parent,
- Your parenting judgment and skills,
- Your child's age and vulnerability,
- How quickly each parent is willing to make changes in the home, and
- Whether your home is safe.
See Tex. Fam. Code § 263.307 (2021).
If you're convicted of a DWI, it can affect the judge's decision on custody and visitation. But if you're convicted of DWI with a child passenger, it will likely significantly impact your custody arrangements. The judge is unlikely to allow you to maintain custody and unsupervised visitation if they believe you will drink and drive with a child in the car. Even if your co-parent trusts you and is willing to leave your arrangements in place, the CPS investigation may necessitate changes to custody and visitation.
Resources After a DWI Arrest
Fortunately, if your family is reeling from trauma after your DWI arrest, help is available for you and your family, including counseling, alcohol and substance abuse groups, group therapy, and other meetings.
- Counseling for Trauma and PTSD You and your child may need counseling focused on trauma and PTSD, particularly if your child ended up in CPS custody, the arrest was difficult, or one or both of you are people of color. A counselor focused on trauma may offer both group and individual sessions for you and your entire family.
- Marriage Counseling Your marriage may face stress after a DWI, particularly with your child in the car. Your spouse may have trouble trusting you with your children or forgiving you for potentially placing them in danger. Finding a good marriage counselor or seeking individual counseling for each of you can help.
- Alcoholics Anonymous For some people, an arrest for DWI can be a wake-up call that they may have a problem with alcohol. The AA Houston website can help you find a meeting location near you and offers educational and treatment resources for alcoholics and their families.
- Al-Anon Family Groups Al-Anon is a group created to help support the family members of alcoholics. The Al-Anon Houston website can help you find a meeting near you and offers resources for family members, along with a special website for teens.
- SAMHSA's National Helpline The Substance Abuse and Mental Health Services Administration has a national helpline that can help you locate services in Houston and the state of Texas. They can help with substance abuse resources as well as mental health resources.
You Need an Expert in Texas DWI Law
When you're facing a charge for a DWI with a child passenger in Houston, the stakes are high for you and your family. You need an expert in DWI defense who understands the complexity of felony DWI cases and appreciates the consequences a conviction can have on your life. Attorney Doug Murphy is an expert in both DWI Defense and Criminal Defense Law, with extensive experience in complex DWI cases. He is one of only three attorneys in Texas who is Board Certified in both these specialties, holding certifications in Criminal Defense Law from the Texas Board of Legal Specialization and DWI Defense from the National College for DUI Defense and accredited by the Texas Board of Legal Specialization and the American Bar Association.
Doug is also a nationally recognized expert on DWI defense and a highly sought speaker on DWI and litigation issues. He is frequently sought as a speaker at criminal defense conferences, legal seminars, and continuing legal education courses across the country. Doug has lectured at more than 120 seminars for other attorneys. U.S. News and World Report also recently voted Doug as Lawyer of the Year to the Best Lawyers in America list for 2021 and 2023 for Houston DWI defense. He earned his spot on this prestigious list through the nominations and votes of his fellow lawyers in the Houston area.
Doug is also well-regarded in the Houston community. He served as President of the Harris County Criminal Lawyers Association, the largest local criminal defense bar in the United States, and as dean of the Board of Regents for the National College for DUI Defense. The Harris County Criminal Lawyers Association also bestowed the Unsung Hero Award upon Doug for his work in exposing issues with Houston's Police Department Blood Alcohol Testing vans. As a result, the Houston Police Department decommissioned the vans.
Doug and the experienced team at the Doug Murphy Law Firm have helped hundreds of Texans just like you. They've been successfully defending complex DWI cases for years. Find out why the Houston media calls Doug the “drinking driver's best friend.” Contact Doug and his skilled team online or call them at 713-229-8333 to schedule your consultation.