My child was in the car when I was arrested for DWI in Houston - will I lose custody?

In the state of Texas, the consequences for a conviction for driving while intoxicated (DWI) are a serious matter. If convicted, you can expect to lose your driving privileges and face thousands of dollars in fines and costs. And depending on the number of prior convictions on your record, you could face months or even years behind bars. In the most severe cases, the police will charge you with a felony that will stay on your criminal record for the rest of your life.

But if at the time you are arrested for DWI you had a child passenger under 15 years old in your vehicle, the consequences listed above are only the tip of the iceberg. You can expect to face additional charges like DWI with a Child Passenger or even charges of child endangerment. If you are in the midst of a divorce, you can expect your arrest and conviction to be used against you when the judge weighs the issue of child custody. And if the state of Texas believes your children are not safe in your care, Child Protective Services may remove your children from your home.

The good news is that most of these consequences depend on a conviction for DWI, not an arrest. You will have the opportunity to defend yourself in front of a jury of your peers. If you prevail, you will be able to begin the process of getting your life back in order. But to do that, you will need a talented Houston DWI defense attorney by your side. A DWI lawyer in Houston, Doug Murphy is the best at what he does. To discuss your case, contact the Doug Murphy Law Firm, P.C. for a free consultation today.

The Consequences of a DWI Arrest with a Child Passenger

If you are arrested and charged with DWI with a child under 15 years old in your car, a number of issues will immediately come front and center in your life. While the prosecutor in your case will begin gathering evidence against you in your DWI case, you will likely deal with a parallel investigation from Child Protective Services.

Also, if you are divorced or in the process of divorcing, you could soon face a custody battle with less leverage. With so many things coming at you at once, it is in your best interest to hire a DWI specialist defense attorney as soon as possible. Below are some consequences you could face.

Possible Criminal Charges

In Texas, a DWI charge can be either a felony or a misdemeanor depending on the number of prior DWI convictions you have. However, there are some exceptions that can make even a first-time DWI offense a felony under Texas law.

One of those exceptions is a DWI with a child passenger under the age of 15. Your potential criminal liability, however, doesn't end with the DWI charge. At the prosecutor's discretion, you may also face additional charges for child endangerment. You should note that a conviction for any of these charges can result in serious jail time.

DWI with Child Passenger

The commission of a DWI with a child passenger under the age of 15 is a felony according to Texas Penal Code Chapter 12 § 49.045. DWI with a child passenger is a separate offense from a charge of DWI in your case, meaning you could face multiple charges from the same incident. This charge is always treated as a state jail felony, and it carries the following penalties:

  • 180-day license suspension
  • Prison sentence between 180 days and two years
  • Maximum fine of $10,000
  • Up to 1,000 hours of community service
  • Mandatory ignition interlock device
  • Other fees or requirements ordered by the court.

Not only will prior DWI convictions affect the severity of the underlying DWI in your case, but it can also have an effect on your potential penalty for DWI with a child passenger.

Child Endangerment

Another charge you might face following a DWI arrest with a child in the car is child endangerment. According to Texas Penal Code Chapter 22 § 22.041, it is crime to intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engage in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

Much like with the charge of DWI with a child passenger, child endangerment is a state jail felony. A conviction for child endangerment carries the following penalties:

  • Between 180 days and two years in prison
  • Maximum fine of $10,000
  • Six-month suspended driver's license.

If the prosecutor in your case believes that your child was in imminent danger of harm due to your alleged DWI, you could face additional felony charges.

Child Protective Services Involvement

In addition to the criminal charges you may face, you could also face an investigation from CPS. In a worst-case scenario, the state could temporarily remove your children from your custody. And unlike the criminal charges you face, you could feel the consequences long before your DWI is resolved. That is due to the requirement in the Texas Family Code that certain professionals report any suspected child abuse or neglect to CPS immediately. Because the prosecutor in this case qualifies, you can expect the prosecutor to file a CPS report immediately after you are charged with a DWI.

This report can set off a chain of events that can greatly affect the rest of your life. If CPS determines you are a continuing threat to the health and welfare of your children, you can face having your children removed from your home. This is in addition to the possibility that CPS took temporary custody of your child at the time of your arrest. While law enforcement will typically make an effort to find a family member that can pick up your child at the time of your arrest, CPS will take the child if they are unsuccessful. The process for regaining custody of your child can be difficult, but if you are acquitted of the underlying DWI charge that process will become much easier.

Impact on Custody

Under Texas law, the custody (or conservatorship, as it is referred to in state law) of your child will always depend on what is the child's best interest. While that concept is general, Texas courts will take specific factors into account when determining what is in the child's best interest, including:

  • Past parental involvement in child's affairs;
  • Parental cooperation;
  • Household stability;
  • Continuity;
  • Child's wishes; and
  • Abuse and other criminal issues.

Unfortunately, even if most of these factors work in your favor, you could run into trouble in a custody hearing based on a criminal conviction. If the conviction involves putting your children at risk, you can expect even more problems. In fact, that single factor is enough for you to lose conservatorship of your children.

There are two basic types of conservatorship under Texas law: sole managing conservatorship and primary joint managing conservatorship.

  • Sole managing conservatorship designates a single parent as the custodial parent of a child; and
  • Joint managing conservatorship gives both parents equal parental rights.

While the courts typically presume that joint managing conservatorship is in the best interest of the child, a court will consider sole managing conservatorship in cases of:

  • abuse,
  • neglect, or
  • other criminal activity.

Even if you have previously been granted joint managing conservatorship, your ex-spouse will have the opportunity to petition for sole conservatorship based on your DWI arrest.

Custody & DWI Convictions

In some cases, a DWI conviction will cause you to lose some but not all parental rights. For example, in some cases, the court may order what is known as possessory conservatorship. This means that while you still have some parental rights, the other parent has sole custody of the child. In these cases, you may be granted visitation rights to see your child.

But even then, these rights can be removed by the court if the judge determines that visitation is not in the best interest of the child. When it comes to these custody issues, the most important thing is that you defend yourself vigorously in your DWI case. If your attorney is able to win an acquittal, it can assist with the restoration of your parental rights.

How an Expert in DWI Defense Law can Help

In your DWI case, you are innocent until proven guilty. And with the right DWI defense attorney, it is possible that you could be acquitted of all charges against you. But to build the strongest defense possible, you need an attorney that has the experience and temperament to defend you vigorously.

If you have been arrested for DWI with a child passenger in the Houston area, contact the Doug Murphy Law Firm, P.C. immediately. An experienced trial defense lawyer, Doug Murphy has earned his reputation as smart, strategic, and aggressive. In fact, he is one of only two attorneys in the state to receive Board Certification as an expert in both DWI defense law and criminal defense law.

To discuss your case, contact the Doug Murphy Law Firm, P.C. today for a free consultation.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.