Being charged with any driving while intoxicated (DWI) offense can leave you unsure where to turn. If the state claims someone under 15 was present in the vehicle, you may be charged with a more serious crime, DWI with a child passenger.
The lawyers at Austin Hagee Law Firm are here to help you defend against charges like DWI with a child passenger in Texas. We can help you respond to the charges against you and explain next steps. Our lawyers are well-practiced at identifying flaws in the prosecution’s case, like the techniques police use to investigate alleged intoxication and strategies the prosecution may use to spin facts. Contact our office to discuss your options.
What Is DWI with a Child Passenger in Texas?
In Texas, you commit DWI if you:
- Operate a motor vehicle,
- In a public place,
- While intoxicated.
You are legally intoxicated if your blood alcohol concentration (BAC) is 0.08 or higher or lack your normal mental or physical faculties due to the use of alcohol, drugs, or controlled substances.
You commit driving while intoxicated with a child passenger if you commit DWI while someone younger than 15 is a passenger in the vehicle with you.
What Is the Penalty for DWI with a Child Passenger in Texas?
If the child doesn’t suffer harm in the DUI incidence, the standard punishment for child endangerment according to laws is as follows: A minimum of six months in jail on top of the DUI jail time. An additional fine of not more than $1000 on top of the DUI fine.
A judge may order probation or community supervision instead of jail time if it is in the best interests of you, the public, and justice. To be eligible for community supervision, you must also complete an educational rehabilitative program. The judge may also order you to complete community service instead of paying a fine.
Driver’s License Suspension
The state may suspend your driver’s license when you are charged with DWI or refuse a field sobriety, BAC, or breathalyzer test. This suspension occurs automatically 40 days after your arrest. However, you can contest the suspension by requesting an Administrative License Revocation (ALR) hearing within 15 days.
This automatic suspension occurs based on the charge alone. Absent aggravating factors, the state may suspend your license for 180 days to one year if you are convicted.
Aggravating Factors
Certain aggravating factors may affect how the state treats your case, like:
- Having a BAC of 0.15 or higher,
- Having previous DWI or DWI-related convictions,
- Driving on a suspended or revoked license,
- Causing property damage, or
- Harming or killing someone.
If any of these factors apply, you may be charged with an additional offense or face increased penalties, such as jail time or fines.
How Might You Defend Against DWI with a Child Passenger?
When you defend against a charge like DWI with a child passenger, you and your lawyer may use several strategies. For example, you may:
- Argue that the facts do not support the charge,
- Raise constitutional issues, or
- Negotiate a plea bargain.
What these strategies look like and which may work best varies from person to person and case to case.
Facts Do Not Support Charge
Saying that the facts do not support the charge is a fancy way of saying you are innocent. But the state must prove you meet all elements to convict you, so you need not claim you are innocent of every element of the crime.
In a DWI with a child passenger charge, you might challenge several elements, including whether:
- You were operating a motor vehicle,
- What you were operating was a motor vehicle,
- You were intoxicated,
- You were in a public place,
- A child under 15 was a passenger, or
- Your passenger was 14 or younger.
You may argue the events are inconsistent with one or more of these elements.
Facts negate the charge
Some elements are simple factual matters. For example, if the only passenger in the vehicle was indisputably 15 at the time of the arrest, you could not have committed the offense.
Meaning of terms is arguable
Some elements may require you to rely on legal arguments about the meaning of words and court cases interpreting the meaning of terms used. For example, a 2021 case concluded an all-terrain vehicle (ATV) counted as a motor vehicle.
No intoxication
Although the state’s BAC measurement can seem indisputable, it may not be—especially if the number is at or near 0.08 or 0.15. Many of these tests are less accurate than the state readily admits, and officers or labs may improperly perform tests, leading to inaccurate results.
Subjective evaluations of impairment often leave even more room for error. Police officers often suspect intoxication based on:
- Physical symptoms like bloodshot eyes, flushed skin, or slurred speech;
- The scent of alcohol; and
- Repeating questions, slow responses, and difficulty following directions.
If an officer suspects intoxication, they may request a field sobriety test, typically including the:
- Horizontal gaze nystagmus test,
- Walk-and-turn test, and
- One-leg stand test.
These tests measure your balance, coordination, fine motor skills, and ability to focus.
Yet, there are other reasons you may fail these tests, like medical conditions or your emotional state. And, although the state does not like to admit it, police officers sometimes lie and claim you failed tests that you passed.
Raising Constitutional Issues
You have the right to refuse a breathalyzer or blood test. However, the state can use this refusal against you in court and imply you were intoxicated.
Still, you may challenge the constitutionality of the state’s actions related to the charge, including that the officer lacked reasonable suspicion to:
- Stop your vehicle,
- Suspect you were intoxicated, or
- Prolong the stop.
Whether and which of these grounds may apply depends on the unique circumstances.
Negotiating a Plea Bargain
If you agree to a guilty plea, the prosecutor may agree to reduce your charges. Although many would understandably prefer to avoid any conviction, plea deals can be a powerful tool.
For example, instead of charging you with DWI with a child passenger, the prosecutor may agree to charge ordinary DWI or public intoxication. DWI with a child passenger is a felony carrying more severe consequences than a misdemeanor, like ordinary DWI. Sometimes, settling for a misdemeanor rather than risking a felony conviction can be the option that presents the least risk.
Austin Hagee Law Firm Can Help
If you need a DWI with a child passenger attorney in San Antonio, TX, reach out to Austin Hagee Law Firm. Our lawyers have extensive experience handling DWI-related charges in many circumstances and can design an effective, tailored defense strategy.
Austin M. Hagee is a trusted and proven San Antonio trial lawyer who tirelessly defends his clients’ constitutional rights. As a former prosecutor turned nationally recognized criminal defense attorney, Austin has the knowledge and expertise to get the best possible outcome for his clients.
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