If you have been arrested for “driving while intoxicated” (DWI), you may feel alone, as you wonder what will happen over the course of the legal proceedings.
However, just because you feel lonely, of course, you may not have actually been alone at the time of your DWI arrest. And the repercussions of having passengers in your vehicle may affect both the charges you face and your defense strategy.
While it's important to understand the passenger's impact on your case, let's correct the record about one thing before we do. You don't have to be alone in this. You shouldn't be.
Instead, you can hire a DWI Defense attorney.
Passengers Under the Age of 15
If you have a passenger under the age of 15 at the time of your DWI arrest, you may be charged with a specific offense, “DWI with Child Passenger.” A “DWI with Child” is a distinct crime. It is a state jail felony offense and, if convicted, you could have a jail sentence from 180 days to two years and/or a fine of as much as $10,000. The court may also order additional penalties, such as probation, community service, installation of an ignition interlock device, and attendance at an alcohol education course.
Passengers Under the Age of 21
If a passenger is over the age of 14 but under the age of 21, they are still a minor under Texas law, but the “DWI with child” statute no longer applies, so the driver would likely face the standard DWI charge.
What if the minor passenger was also intoxicated at the time of the driver's arrest? Under Texas' zero-tolerance laws, minors can be arrested for possession or consumption of alcohol. It's possible to imagine a scenario where a driver is pulled over for a DWI, passes a breath test, and is let go—but a minor passenger could be arrested for drinking alcohol earlier in the evening.
But if the minor is arrested for consuming alcohol, the driver could be back on the hook for yet another charge—for giving the minor that drink in the first place.
Impact of Having a Passenger of Any Age
Regardless of a passenger's age, a driver is responsible for their passenger's safety.
Therefore, if a passenger was injured due to the driver's intoxication, the driver could be charged with intoxication assault, just as if the driver had injured a pedestrian or someone in another vehicle.
Similarly, the DWI-related crimes regarding a fatality—e.g., intoxication manslaughter, vehicular manslaughter, or criminally negligent manslaughter—also apply to passengers.
Furthermore, charges relating to passengers don't necessarily have to be directly relating to a DWI. For example, a driver could face a charge of reckless driving, which the law defines as “willful or wanton disregard for the safety of persons.”
Passengers' actions can also impact your case.
As a driver, you can be charged if your passenger has an open container of alcohol in the vehicle (unless it's in a separate area the driver wouldn't have access to—like the back of a limo or an RV camper). The fact that the drink wasn't yours, but your passenger's, is not a sufficient defense. Instead, you'd have to prove you did not know the passenger was in possession of alcohol.
Meanwhile, if you have a passenger in visible distress (e.g., passed out), that may be enough of a justification for the police to pull you over. It may constitute reasonable suspicion for the stop; it could even be an exception for a warrantless search.
It's also worth noting that a passenger can also sue an intoxicated driver in civil court for financial damages or other compensation.
Adult Passengers' Liability
In Texas, a passenger is not typically going to be held responsible for the driver's actions: the passenger is not likely to have DWI-aiding and abetting charge.
It's also unlikely that someone would face a DWI charge just for being a passenger.
Instead, for a passenger to have a DWI charge filed against them, there would need to be evidence they had their hands on the wheel or were otherwise actively trying to control the vehicle. They might also see a DWI charge if the police were not able to determine who drove the vehicle. (For example, if the driver and passenger may have switched seats after an accident.)
On the other hand, a passenger can also be charged with crimes related to their own actions. For instance, they, too, can be charged with violating the open container law or be charged with public intoxication.
Passengers' Role in Investigation and Trial
Just as the presence of a passenger may bring additional charges, it can also impact the preparation of your defense.
First, your defense lawyer will want to understand the exact role that the passenger would be cast in during a trial.
If the passenger is a co-defendant: You'll need to consider if the passenger's charges are distinct from yours or if their actions relate to the allegations made against you. Strategically, you'll want to know if the prosecution will be offering any sort of a plea deal to the passenger in exchange for testimony against you. You will also want to decide if your trial should be separated from the passenger's or joined in a single proceeding.
Also, note that a passenger co-defendant will be preparing their own defense. The issues they will analyze (e.g., was it a legal stop, did the police need a search warrant) may be the same as those in your defense, but the facts and outcome may be different. Just because the police had reasonable suspicion that one of you committed a crime does not automatically mean they have reason to suspect the other. Probable cause for a search of them is not necessarily enough for the police to search the trunk of your car. And so forth.
If your passenger is a victim: If the passenger was injured, your defense would need to learn the prognosis for their recovery. And while a passenger may not be charged for anything, a careful defense will still want to investigate the passenger's behavior during the event—to see if they took any actions that might have affected the outcome. (As an example, if a passenger wasn't wearing a seatbelt during an accident, their failure to act may be part of the reason they were injured.)
If the passenger is a witness: As with all witnesses, credibility will be the key. The passenger will be asked about their knowledge of your alcohol consumption and intoxication as well as your driving. They will be judged on their relationship with you—to determine if they will be accurate and trustworthy. And, of course, if the witness was also intoxicated, then you should be wary of their testimony; they may not accurately recall what happened.
No matter what role your passenger is cast in, both the prosecution and your defense lawyers will want to interview and investigate your passenger.
But you, too, may want to talk to them. Especially if you and your passenger have a close relationship, you may want to check in on them and talk about what happened.
Do not do this. Do not admit guilt or remorse. Do not “get your stories straight” or explain your side of the story. Unless your passenger is your spouse, nothing the two of you discuss is in any way privileged or protected. Your passenger can tell everything you said to the district attorney or police. You don't want another charge of intimidating a witness or interfering with an investigation just because you legitimately were worried about your friend and wanted to check in on them.
Therefore, talk to your lawyer before making any comments to anyone—especially those relating to your culpability or regret. Ask your attorney to relay a message for you. And if you must meet them in person, ask your lawyer to be there, or at least to give you a script of what to say.
The Impact of a DWI
A DWI can impact every aspect of your life. That is even more true if there are passengers in the car. A DWI-with-child charge can influence current or future custody agreements; it can initiate an investigation with Texas Child Protective Services. If a passenger is injured, criminal liability is not the only issue: A passenger (even a spouse) could sue you for their injuries.
However, remember this: You are not alone, and a criminal charge is not a conviction. People can and do win a DWI defense.
Rated as “Preeminent” by AV, Houston attorney Doug Murphy is annually recognized as one of the Best Lawyers in America by US News , and recently was named Houston's 2021 Lawyer of the Year by Best Lawyers in America. Murphy has 20 years of experience in the courtroom, and he is one of only two attorneys in the state of Texas who is Board Certified in both Criminal Law and DWI Defense.
If you face DWI charges in Texas, contact Doug Murphy’s office today to discuss the case and begin working on the defense.