DWI with a Child Passenger in Texas

Texas Penal Code 49.045 sets forth the State Jail Felony Offense of Driving While Intoxicated with Child Passenger. This law provides that a person commits an offense if:

• The person is intoxicated while operating a motor vehicle in a public place [the standard DWI charge]; and
• The vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

The child need only be present in the car for the offense to be effectuated; the child does not have to be aware that the driver is intoxicated, and there need not be any actual injury to the child. Therefore, the allowable unit of prosecution is each incident of driving, not each child present in the vehicle. State v. Bara, 500 S.W.3d 582 (Tex. App.—Eastland, 2016).

Some jurisdictions will also add a charge of Endangering a Child. The offense of driving while intoxicated is a strict liability crime, meaning that it does not require a specific mental state (e.g., intentionally, knowingly, or recklessly intending to operate a motor vehicle while intoxicated); it requires only a person on a public roadway voluntarily operating a motor vehicle while intoxicated. The elements necessary to prove that a person committed the offense of driving while intoxicated are the following: (1) a person; (2) is intoxicated; (3) at the time of; (4) operating; (5) a motor vehicle; (6) in a public place. The offense of driving while intoxicated with a child passenger, unlike the offense of endangering a child, does not require proof that the defendant placed a child in imminent danger of death, bodily injury, or physical or mental impairment. State v. Bara, 500 S.W.3d 582 (Tex. App.—Eastland, 2016).

Depending upon the jurisdiction and individual facts and circumstances of the case, we have seen these charges reduced and treated as first time DWI misdemeanors—but again we are looking at a case-by-case basis.

These cases are defended similarly as a DWI in terms of analyzing the reason for the stop and then the probable cause developed for the DWI arrest. As always, this will include a detailed analysis of Police Officer Body Cams and In-Car Videos as well as analysis of breath/blood tests that are office is confident in handling.

Call us at (512) 494-4070 or request a free consultation online now relating to this specific charge.