What Happens When a Driver Gets a DWI with a Child in the Car?

Posted by Doug Murphy | Oct 14, 2020 | 0 Comments

In Texas, if there are children in a vehicle, while a driver is intoxicated, the driver may be charged with “Driving While Intoxicated with Child Passenger” (DWI with Child Passenger), a felony punishable with time served in a state jail.

According to Texas Penal Code Chapter 12 § 49.045, a person commits a DWI with Child 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.

Note that the driver may be charged and convicted of a DWI with Child Passenger even if the child in the vehicle was not injured in an accident.

What is the Punishment for DWI with Child?

Driving While Intoxicated with Child Passenger is a state jail felony under Texas Law. Texas Penal Code Section 12.35 says that someone convicted of DWI with Child can be punished by between 180 days and two years in a state jail and/or a maximum fine of $10,000, and a 180-day suspension of a driver's license. Additional penalties can also be levied, ranging from probation to community service and more.

However, in 2019, the Texas Legislature passed new laws that added to the previously-allowed punishments for DWI with Child Passenger. House Bill 2048 created additional fines for all offenses related to operating a motor vehicle while intoxicated. The new fines are:

(1) $3,000 for the first conviction within a 36-month period;

(2) $4,500 for a second or subsequent conviction within a 36-month period; and

(3) $6,000 for a first or subsequent conviction, if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

Does this impact children's custody?

Any DWI with a child passenger will probably result in the involvement of the Texas Department of Family and Protective Services (DFPS). DFPS typically reasons that a DWI with Child Passenger means that the child was in a situation with a danger of death or serious injury; therefore, DFPS classifies this offense as a form of neglect under Section 261.001 of the Texas Family Code.

Whether the driver is the parent or someone that the parent entrusted with the child's care, the result is that the parent will likely to be accused of endangering the welfare of the child.

If another family member cannot be located, a child will be removed from a parent's study at the time of a DWI arrest. And DFPS may decide to permanently remove the child from the parent's custody, if it is determined that the parent is not suitable.

If you have been charged with DWI with Child Passenger, you will need to hire an attorney who is experienced in DWI cases. These are very serious cases with lifelong implications. Attorney Doug Murphy is a Board Certified Specialist in criminal law and DWI defense, so contact Doug today so you can start planning how to protect your family and get your life back on track.

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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