Driving While Intoxicated with a Child Passenger

Judges and juries are far more likely to be sympathetic to alleged offenders arrested for driving while intoxicated (DWI) when there are no aggravating factors. However, these views become much more critical and judgmental when an alleged offender is accused of DWI when a child was a passenger in his or her vehicle.

All drunk driving charges involve the very real belief that an alleged offender placed innocent people at risk, but these feelings are even stronger when it is believed that the driver acted so carelessly while transporting a defenseless child who was forced to place his or her trust in that adult. Texas takes this crime quite seriously, and a person accused of this offense will face felony charges—even if it is his or her first DWI.

An investigation by a Houston TV news station found Harris County prosecutors often take a “restorative justice” approach when it comes to DWI with a child case. In these instances, defendants can be issued probation, having their license suspended, attending alcoholic anonymous meetings, among other court-issued restrictions.

Houston DWI with a Child Passenger Lawyer

If you were recently arrested in Harris County or a surrounding area of the Lone Star State for allegedly driving drunk while a child was a passenger in your vehicle, it is in your best interest to immediately obtain legal counsel. Horak Law defends clients all over the greater Houston area, including Missouri City, Spring, League City, Galveston, Sugar Land, Pasadena, The Woodlands, Conroe, Richmond-Rosenberg, and Pearland.

As a former prosecutor, Harris County DWI attorney Matt Horak has more than a dozen years of experience handling these types of cases on both sides of the aisle. You can call our firm at (713) 225-8000 to take advantage of a confidential consultation that will allow us to review your case.

Harris County DWI with a Child Passenger Overview

• How is this charge different from a regular DWI arrest?
• What are the possible consequences if an alleged offender is convicted?
• Can police order a blood draw in these cases without a person’s consent?
• Where can alleged offenders find help following this type of arrest?

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DWI with a Child Passenger Charges in Texas

A person is generally charged with DWI in Texas under Texas Penal Code § 49.04 if he or she is intoxicated while operating a motor vehicle in a public place. Intoxicated is defined as either having an alcohol concentration of 0.08 or more or 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, or any other substance into the body.

This offense is ordinarily a Class B misdemeanor, unless the alleged offender’s alcohol concentration level was 0.15 or more, in which case the crime becomes a Class A misdemeanor. Under Texas Penal Code § 49.045, however, a person commits the offense of DWI with child passenger if he or she is intoxicated while operating a motor vehicle in a public place and the vehicle being operated by the alleged offender is occupied by a passenger who is younger than 15 years of age.

This crime is classified as a state jail felony, although additional aggravating factors may result in additional punishment. An offender convicted of a state jail felony can be punished for a third-degree felony if it is proven that:

• He or she used or exhibited a deadly weapon during the commission of the offense or during immediate flight following the commission of the offense;
• He or she has previously been convicted of a felony; or
• He or she has previously been finally convicted of two state jail felonies.

A state jail felony can also be enhanced to a second-degree felony if the alleged offender has previously been convicted of two felonies.

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DWI with a Child Passenger Penalties in Harris County

Because the offense of DWI with child passenger is classified as a state jail felony rather than a misdemeanor offense, alleged offenders face a bigger fine and longer minimum and maximum sentences of imprisonment. Some of the possible punishments a person could receive if convicted of this drunk driving crime may include any combination of the following:

• Fine of up to $10,000;
• Minimum of 180 days up to two years in state jail;
• Driver’s license suspended for 180 days;
• DWI school; or
• Installation of ignition interlock device.

These penalties will become more severe if the alleged offender is facing felony charges. A third-degree felony is punishable by up to 10 years in prison and a fine of up to $10,000, while a second-degree felony may result in up to 20 years in prison and a fine of up to $10,000.

Additionally, felony offenders can also be ordered to complete up to 1,000 hours of community service. Regardless of classification, all offenses can also involve various fees or court costs.

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Texas Blood Draws in DWI with a Child Passenger Cases

The implied consent statute found in Texas Transportation Code § 724.011 states that any alleged offender accused of operating a motor vehicle in a public place while intoxicated is deemed to have consented “to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.”

Refusal to submit to these tests will trigger automatic suspension of the alleged offender’s license.

State law used to enforce a mandatory blood draw in alleged DWI with child passenger cases. However, two recent court cases resulted in law enforcement no longer being able to utilize the blood draw statute:

• Missouri v. McNeely — A Missouri police officer stopped Tyler McNeely for speeding and crossing the centerline. McNeely refused to consent to breath or blood tests, and the officer directed a lab technician to take a blood sample which showed a blood alcohol concentration (BAC) of 0.154 percent. McNeely sought to suppress this evidence because the sample constituted an unreasonable search and seizure. A trial judge, state appeals court, the Missouri Supreme Court, and the United States Supreme Court all agreed that an involuntary blood draw violates the Fourth Amendment rights of alleged offenders, and the April 2013 U.S. Supreme Court decision essentially mandated that police officers obtain warrants in order to subject people accused of drunk driving to blood tests.
• The State of Texas v. David Villarreal — David Villarreal was arrested in Texas for an alleged traffic violation and suspected of DWI, but he refused to consent to any field sobriety tests or chemical tests. Again, police transported the alleged offender to a hospital and had a technician draw his blood over his objection. The 2013 Missouri v. McNeely decision factored into the Texas Court of Criminal Appeals concluding in a 5-4 decision in November 2014 that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.”

These decisions may have made it more difficult for law enforcement to obtain a blood sample from alleged offenders who refuse to consent to these tests, but it has not made it impossible.

Several judges in and around Harris County, TX, are on call 24 hours a day, seven days a week specifically to issue these kinds of warrants that authorize blood draws after a DUI arrest, especially for a felony DUI charge. This is also especially common in alleged DWI cases involving child passengers.

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Harris County DWI with a Child Passenger Resources

Houston Intergroup Association, Inc. — This is the official website for Alcoholics Anonymous (AA) in Houston. AA is a fellowship of men and women who share their experience, strength, and hope with each other that they may solve their common problem and help others to recover from alcoholism. The only requirement for membership is a desire to stop drinking, and there are no dues or fees for membership as the organization is self-supporting through its own contributions. There are meetings at various times of the day throughout the week all over the Houston area.

The Council on Alcohol and Drugs Houston — This is a 501(c)(3) nonprofit organization that receives its funding from the United Way of Greater Houston, the Texas Department of State Health Services, and various private contributions, special events, and program fees. The Center for Recovering Families provides family systems-based treatment for individuals and families who are experiencing problems related to their own or loved ones’ substance abuse and related issues.

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Horak Law – A DWI with a Child in the Car

Have you been charged with drunk driving in Texas with a passenger who was younger than 15 years of age? Matt Horak is a criminal defense attorney in Houston, TX who can fight to help you achieve the most favorable outcome to your case with the fewest possible penalties.

Horak Law aggressively defends clients in communities throughout Galveston County, Waller County, Liberty County, Fort Bend County, Brazoria County, Montgomery County, and Harris County. You can receive a initial consultation that will allow our firm to review your case by calling (713) 225-8000 today.

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