Second DWI with a Child Passenger in Texas

Posted by Doug Murphy | May 28, 2023 | 0 Comments

It can happen so innocently. It's been a long day; you go out to dinner with the family, have a few glasses of wine, and head home with the kids asleep in the back seat. After a while, you see flashing blue lights in your rearview mirror. And just like that, you could have a DWI arrest and a felony charge. A Houston woman recently discovered how serious the consequences can be if you drink and drive with a child in the car after her second arrest for the offense.

Woman Arrested for DWI with Child Passenger

In April, Harris County sheriff's deputies responded to multiple reports of a vehicle that crashed into several parked cars. The car also hit a mailbox, a fence, trees, and a house. When deputies arrived, they found the suspect's car in the 7300 block of Louetta Road in Houston with significant damage. Deputies reported that the driver showed signs of intoxication and conducted a field sobriety test. They also sought a warrant for a blood test.

Police also discovered that the suspect had a child under 15 in the car with her at the time of the crashes. A guardian arrived at the scene to take custody of the child as the deputies arrested the suspect. The deputies booked the suspect into the Harris County Jail, charged with DWI with a child passenger and failure to stop and give information after an accident. The suspect was previously convicted of DWI with a child passenger.

Driving While Intoxicated in Texas

When the police arrest you for DWI, you can also face additional charges if you have a child in the car. The grade of your DWI charge will also increase for a subsequent DWI.

First and Second DWI in Texas

A first DWI in Texas is typically a Class B misdemeanor, punishable by up to 180 days in jail, a mandatory $3,000 administrative fine, a suspended license, and a court-imposed $3,000 fine.However, the penalties increase for a second DWI. A second charge is a Class A misdemeanor, punishable by six days to 12 months in jail, a mandatory $3,000 administrative fine, and a court-imposed fine of up to $4,000. If this is your second DWI in 36 months, the mandatory administrative fine increases to $4,500.

If you are charged with DWI for a third or subsequent time in Texas, you can face a state jail felony. The penalty if convicted is two to ten years in prison and up to a $10,000 fine. You'll also face mandatory administrative fines, a suspended license, community service, installation of an interlock ignition device, and possibly court-imposed counseling or alcohol treatment. You'll also have a felony on your criminal record.

DWI with a Child Passenger

If you have a child under 15 in the car with you at the time of your DWI arrest, you can face a felony DWI in Texas. The police will charge someone with DWI with a child passenger 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.

See Tex. Pen. Code. § 49.045 (2003). A conviction for DWI with a child passenger is a state jail felony. You can face 180 days to two years in jail and up to a $10,000 fine. The police may also charge you with DWI separately.

For a subsequent arrest for DWI with a child passenger, you can face more serious consequences. While Texas law makes this a crime, a state jail felony, regardless of whether you have a prior conviction, at trial, the judge will take any earlier DWI-related convictions into account during sentencing. Moreover, a DWI with a child passenger is a felony. If you have a prior felony conviction, the judge may consider you a habitual criminal offender. As a result, you are more likely to receive a sentence closer to the maximum of two years allowed under the law.

Child Endangerment

If you're arrested for DWI with a child passenger, you can also face charges for child endangerment and an investigation from Child Protective Services. Texas law defines child endangerment as:

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

Tex. Pen. Code § 22.041 (2021). Driving while intoxicated with a child in the car qualifies as conduct placing a child in imminent danger or “death, bodily injury, or physical” impairment. Child endangerment is a state jail felony. A conviction is punishable by 180 days to two years in jail and a fine of up to $10,000.

The police are also legally required to report an incident involving child endangerment. If you were driving with your child or a close family member in the car, you may face an investigation. It's important not to panic, but a CPS investigation is just one more reason to ensure you have an expert in DWI defense representing you from the beginning.

Hire an Expert in Texas DWI Defense

If you're facing a second or subsequent DWI in Texas, particularly if there are aggravating circumstances raising it to a felony, you need an expert in Texas DWI defense on your side as soon as possible. The consequences of a first or second felony can be severe, including serious jail time. If you're facing a DWI with a child passenger, you may also have to endure a CPS investigation, which can be stressful for you and your family. Attorney Doug Murphy is an expert in both Criminal Defense Law and DWI Defense in Texas. He holds Board Certifications in both specialties and is well-versed in handling complex DWI cases, including felony charges. Recently, U.S. News and World Report's Best Lawyers in America named Doug the “Lawyer of the Year” in Houston for DWI defense in 2021 and again in 2023.

Doug and the skilled team at the Doug Murphy Law Firm have been helping Texans with serious criminal and DWI charges for years, and they can help you too. Call them today at 713-229-8333 or contact them online to schedule your consultation.

About the Author

Doug Murphy

Doug Murphy is one of only two Texas lawyers Board Certified in Criminal Law by the Texas Board of Legal Specialization, and also in DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization.


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