DWI with Child Passenger

Brian Foley is a Woodlands Texas DWI with Child Criminal Defense Attorney representing clients from The Woodlands, Conroe, Houston, and the surrounding area who are charged with DWI with a Child Passenger.  Brian has handled the cases of individuals facing DWI with child passenger charges in The Woodlands, Harris County and Montgomery County.

What is a DWI with Child Passenger Charge?
A DWI with a child passenger charge is a State Jail Felony and requires proof that the person operated a motor vehicle in a public place while intoxicated and the vehicle was occupied by a child passenger who was younger than 15 years of age.  Typically this is the child of the driver.  This type of charge is common when returning home from family events or sporting events or trips to the lake.  
 
Can I be charged with a different offense for every child in the car?
Prosecutors have to charge crimes according to the "unit of prosecution."  Because DWI with a child is a conduct oriented offense and a circumstances surrounding the conduct orriented offense the allowable unit of prosecution is one charge per act of driving while intoxicated not one charge per victim.  “We conclude in this case that Section 49.045 has, as the allowable unit of prosecution, one offense for each incident of driving or operating a vehicle."  State v. Bara, 500 S.W.3d 582, 587 (Tex. App. 2016).  “the allowable unit of prosecution is each incident of driving, not each child present in the vehicle.” Id.


What happens to a child when you are arrested for DWI with a child? 

If no responsible party can be located to take custody of the child then the police will call child protective services.  They may call child protective services anyway and an investigation into the safety and wellbeing of the child may be conducted by the Department of Family and Protective Services.   ​​This is a separate civil investigation and could result in action being taken by the Texas Department of Family and Protective Services to modify custody or terminate the parent child relationship. 

Penal Code 49.045

Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.
(a) A person commits an offense 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.

(b) An offense under this section is a state jail felony.

 
What is the punishment for a DWI with Child Passenger?
A DWI with Child Passenger is a State Jail Felony if you have been convicted one or fewer times of an offense similar to DWI.  

A State Jail Felony is punishable by up to 2 years in State jail and a $10,000 fine.  Probation for up to 5 years may be imposed as well with the requirement of an ignition interlock device. 

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AGGRESSIVE DWI DEFENSE

FORMER CHIEF PROSECUTOR

MEMBER OF VEHICULAR CRIMES TEAM