If you have been arrested and charged, you know DWI is taken very seriously in Texas. With no way to get a DWI conviction off of your record, stiff penalties, potential DPS surcharge fees if you are convicted, prosecutors pursue DWI aggressively. This is not to mention that if you refuse a blood test, the police are going to literally get a warrant and then tie you down if necessary to get it. But if your child is in the car with you, it only gets more severe. If you are get arrested for DWI with a child under the age of 15 years old in the car with you, the State will charge you with a felony. It can be a state jail felony. Depending on how the case is indicted, it can also be a third degree felony. Of course, you are not convicted yet. You are in an important window in your criminal defense: selecting the right attorney. If you have been arrested and charged with DWI with a child under 15, you need to carefully select a criminal defense lawyer. There are many avenues of attack that an attorney can pursue in DWI cases. There are many ways to challenge and defend these cases.
So How Easily Can This Happen to You?
People are shocked how easily this can happen. With the current climate of DWI in Fort Worth, across Texas, and throughout the country, it can be very easy to find yourself facing this charge. Suddenly, you are facing at least a state jail felony and you are absolutely surprised, embarrassed and shocked. The thing to remember is that it is absolutely not a crime to have a drink, or even two or three and drive in Texas. It is very easy for people who are simply not guilty of DWI get caught up in the system, in handcuffs and arrested, and in the anxious position of having to hire defend themselves, of having to hire someone like me to fight for them. As long as you have not lost control or your physical or mental faculties or have a blood alcohol concentration above .08. There is a big stigma to DWI across Texas.
Mom is at a picnic with her daughter and has one beer or two, then gets pulled over on the way home. She is pulled out of the car, put through the gauntlet of field sobriety tests, and arrested, while her child watches on.
Dad is at a child’s birthday party and has a glass of wine, then gets stopped on the way home, the police officer smells alcohol, puts him through the field sobriety tests, and arrests him. That is really how easy it is. There is no way to know how much alcohol someone has to drink based on smell. The field sobriety tests are designed for people to fail. And police are looking to arrest people. To say the least, it is not a fun set of circumstances in which to find yourself.
What is the Law on DWI with a Child Passenger?
Essentially, DWI with a child passenger is the exact same as DWI, but with one added element: there is alleged to be a passenger in your vehicle under the age of 15. The criminal offenses involving DWI are found in Chapter 49 of the Texas Penal Code. First, here is the statute on DWI:
49.04. Driving While Intoxicated.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
So, there are four elements that must be proven beyond a reasonable doubt in order for a person to be convicted of driving while intoxicated:
- Operating a
- Motor Vehicle
- in Public
- while Intoxicated
The State has to prove all four of these elements beyond a reasonable doubt. But if you are facing a charge of DWI with a Child Passenger, the state has to prove one more element. Here is the statute:
Section 49.045. Driving While Intoxicated with Child Passenger.
- A person commits an offense if:
- The person is intoxicated while operating a motor vehicle in a public place; and
- The vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
- an offense under this section is a state jail felony.
How is Intoxication Defined in the Texas Penal Code?
Usually, intoxication is the most contestable of the four issues. Intoxication is defined in Section 49.01 of the Texas Penal Code:
- not having the use of mental or physical faculties by reason of introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
- having an alcohol concentration of 0.08 or more.
There are three avenues for the state to prove Intoxication. And the state must prove intoxication beyond a reasonable doubt. If they have a blood or breath test, which is the norm these days, they will likely attempt to establish all three. However, if you have a blood test or a breath test and it comes in a 0.08, that does not mean you are guilty. There are many ways to challenge these tests in a courtroom, and to get a jury to question the validity of these tests. Furthermore, there are specific rules in which blood must be drawn. The rules governing how and under what conditions blood can be drawn and also by whom are detailed in the Transportation Code. There are also specific rules that govern how a breath test must be administered. A good DWI attorney can contest not only the results of the blood or breath test, but can also keep them out of evidence if they are not done properly. A skilled attorney can sometimes exclude these tests from the jury before trial. This means that the jury will not be able to hear any of the evidence or know the exact number.
What does Operating Mean?
While intoxication will almost always be an important battleground during a trial, it isn’t the only one. Sometimes, Operating will also be a contestable issue at trial. I have had trials where operating is really the only issue at trial. What does operating mean? It is a concept that is broader and more expansive than driving. People have been convicted of DWI even if they were not driving. If a person is in a parked vehicle in the winter with the engine running simply to use the heater and stay warm, or in the summer to use the air conditioning. Once again, it is important to hire a skilled attorney to challenge all the issues that arise in a driving while intoxicated case, and to turn over every stone in your defense.
What is the Punishment for this Charge?
DWI with a Child Passenger is a state jail felony. State jail felonies carry a potential range of punishment between 180 days and two years in state jail, and carry a potential fine up to $10,000. However, sometimes it can also be charged as a third degree felony if a deadly weapon was used or exhibited in commission of the offense. A third degree felony carries a possible range of punishment of between two and ten years in the Texas Department of Corrections. The potential fine is also up to $10,000. In the context of DWI with a Child Passenger, a deadly weapon can be your vehicle. This is also very confusing and shocking. Here is the definition of deadly weapon:
Deadly weapon means:
- a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
- anything that in the manner of its use or intended use is capable or causing death or serious bodily injury.
So, essentially, a vehicle can kill somebody. A car is capable of killing someone. Therefore, it can be a deadly weapon. It is ridiculous and unfair to allege that a motor vehicle is a deadly weapon when it is an element of the underlying offense. But, there you have it. Depending on how the case is indicted, you might be facing a state jail felony or a third degree felony.
Is Probation Available?
Yes, probation is available for this charge, but unfortunately deferred adjudication is not available for any of the driving while intoxicated offenses. Since 1984, deferred adjudication has not been possible. Deferred adjudication simply means that you plead guilty to the charge, but the judge withholds a finding of guilt. Then, if you complete the probation and other requirements, your case gets dismissed and you can get it off of your record after the statute of limitations has run. A DWI conviction can never be removed from your record. That is why it is very important to select the right attorney. The opportunity to try and avoid a conviction is in front of you. It depends upon the evidence in your case, but retaining the right attorney is crucial.