DWI with Child Passenger in Texas

Understanding the enhanced penalties, felony charges, and specialized defenses when a minor is present during a DWI arrest.

Automatic Felony Charge

DWI with a child passenger under 15 years old is automatically charged as a State Jail Felony in Texas, regardless of your BAC level or prior history. This carries significantly harsher penalties than a standard misdemeanor DWI.

Legal Definition and Elements

Texas Penal Code 49.045
Elements Required for Conviction:
  • Operating a motor vehicle while intoxicated
  • Child passenger under 15 years old present
  • Child does not need to be related to defendant
  • Intent to harm child is not required
  • BAC level is irrelevant for felony charge
Enhanced Penalties
State Jail Felony Consequences:
  • 180 days to 2 years in state jail
  • Fine up to $10,000
  • Permanent felony record
  • Driver's license suspension
  • Child Protective Services investigation
  • Potential loss of parental rights

Child Protective Services Involvement

Automatic CPS Investigation

DWI with child passenger cases automatically trigger a CPS investigation for child endangerment, which runs parallel to your criminal case.

What CPS Investigates:
  • Home environment and safety
  • Other adults in the household
  • History of substance abuse
  • Child's current welfare and safety
  • Support systems available
  • Willingness to seek treatment
Potential CPS Actions:
  • Safety plan requirements
  • Temporary removal of child
  • Mandatory parenting classes
  • Alcohol assessment and treatment
  • Supervised visitation
  • Family services case plan

Defense Strategies

Challenge the DWI
  • Illegal traffic stop
  • Improper field sobriety testing
  • Breath/blood test reliability
  • Rising BAC defense
  • Medical condition defenses
  • Miranda rights violations
Child Presence Issues
  • Question child's actual age
  • Child not physically present
  • Child exited vehicle before stop
  • Mistaken identity of passenger
  • Child was not in defendant's care
  • Emergency circumstances
Mitigation Strategies
  • Voluntary alcohol assessment
  • Parenting classes enrollment
  • Character witness testimony
  • No prior CPS history
  • Stable home environment
  • Employment and community ties

Common Scenarios

Most Common Case: Parent or guardian driving with their own child present. CPS will immediately investigate living situation and may require safety plan or temporary placement with relatives while case is pending.

Enhanced Liability: Non-parental caregivers face additional civil liability and potential child endangerment charges. Parents may also face charges for entrusting child to intoxicated person.

Separate Charges: Each child under 15 constitutes a separate felony charge. Two children = two felony counts, potentially doubling the penalties and jail time.

Necessity Defense: Medical emergencies or immediate danger to child may provide defense, but burden of proof is high and circumstances must be genuinely life-threatening.

Long-term Consequences

Criminal Record Impact
  • Permanent felony conviction
  • Employment background checks
  • Professional license consequences
  • Housing application denials
  • Loss of voting rights (until restoration)
  • Firearm possession prohibition
Family Law Consequences
  • CPS case record (even if unfounded)
  • Custody modification requests
  • Restricted visitation rights
  • Mandatory supervision requirements
  • Future CPS investigations
  • Divorce proceedings impact

Immediate Actions to Take

Critical First Steps:
  1. Contact an experienced attorney immediately - Felony charges require specialized defense
  2. Request ALR hearing - You still have 15 days for license challenge
  3. Do not talk to CPS without attorney present - Statements can be used in criminal case
  4. Begin alcohol assessment - Shows responsibility and helps with both cases
  5. Document child's wellbeing - Medical records, school performance, stability
  6. Identify character witnesses - Family, friends, employers who can testify to parenting
  7. Consider family safety plan - May prevent child removal

Facing DWI with Child Passenger Charges?

Felony charges with CPS involvement require immediate, experienced legal representation. Don't risk your freedom and your family.

Get Attorney Referral Case Preparation Guide