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Arrested for DWI With a Child In the Car? Here’s What You Need to Know.

If you’re pulled over on suspicion of DWI in Collin County, Texas, you need to know that who is in your vehicle with you can make a significant difference in how you are charged. The reason for this is simple: Under Texas law, it is considered a more serious offense to operate a motor vehicle while intoxicated if there are also children in the car.

Typically, a person arrested for DWI is charged with a either a Class A or B misdemeanor, assuming they have no prior drunk driving convictions. While a misdemeanor is obviously less serious than a felony, it still carries a potential jail term of between 72 hours (3 days) and 180 days (6 months) and an optional fine not to exceed $2000 for a Class B, and up to one year in the county jail and an optional fine not to exceed $4,000 for a Class A. But there are a number of special circumstances that may elevate the DWI charge to a felony.

One of these circumstances involves the presence of children. Under Section 49.045 of the Texas Penal Code, a driver may be charged with a state jail felony if all of the following is true:

  • The driver was operating a motor vehicle in a “public place”;
  • The driver was intoxicated while operating said vehicle; and
  • The driver’s vehicle was “occupied by a passenger who is younger than 15 years of age.”

What does a “state jail felony” mean? This represents the lowest class of felony in the Texas legal system. But it is still a felony. This means if convicted, you face a minimum of 180 days in jail–and a maximum term of up to 2 years. The court can also fine you up to $10,000.

There are a couple of things to keep in mind here. First, you probably already know that you can be charged with DWI if your blood-alcohol concentration (BAC) is at least 0.08 percent. But that is not the only way the state can prove driving while intoxicated. Texas law also defines intoxication as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances.” In other words, a prosecutor can prove you were drunk based on the testimony of a police officer who observed you during the course of a traffic stop and performed various field sobriety tests, even if your BAC ultimately tested below 0.08 percent.

The second thing to note is that DWI with a child passenger is a strict liability offense in Texas. That is to say, all the state needs to prove is you were driving while intoxicated and there was a child in the car. It doesn’t matter if the child was unharmed or you thought you weren’t intoxicated at the time.

Do Multiple Children Mean Multiple Charges?

One thing you might be wondering is, “What if there were multiple children in the car with me when I was arrested for DWI? Can I be charged with a separate felony for each child?” A number of Texas appeals courts have looked at these questions in recent years, and the consensus seems to be that a driver can only be charged once for the act of DWI with a child passenger regardless of the number of victims.

For example, in the 2016 case Gonzalez v. State, a woman was involved in a car accident with her three young children, ages 10 months to 7 years. Police officers at the scene noted the woman “had slurred speech and bloodshot eyes” and under questioning she “admitted to drinking several alcoholic beverages prior to the accident.”

The state charged the woman with three counts of DWI with a child passenger. She was convicted in the trial court and appealed her conviction. On appeal, she argued this violated her constitutional protection against “double jeopardy”–i.e., a person cannot be punished multiple times for the same offense. The appeals court agreed. Noting another Texas appeals court had recently reached a similar decision, the judges in this case held the “allowable unit of prosecution for DWI with a child passenger is one offense for each incident of driving or operating a vehicle,” not one offense for each passenger.

Contact Our Collin County Criminal Defense Lawyers Today

No matter how many children are in the car, if you are the driver and charged with DWI, you are facing serious consequences. Although many DWI with child passenger cases can be resolved without jail time–Collin County judges can sentence an offender to community supervision (probation)–you will also likely face a six-month suspension of your driver’s license. And conviction of a state jail felony can also impact your civil rights in a number of areas, from your ability to legally possess or own a firearm to the loss of child custody or visitation rights. So if you are charged with DWI and need assistance from an experienced Collin County DWI lawyer, contact Rosenthal & Wadas today.