What To Do If You’re Arrested For DWI With A Child Passenger In Texas

What To Do If You’re Arrested For DWI With A Child Passenger In Texas

When law enforcement pulls you over on suspicion of driving while intoxicated with a child passenger, every detail counts. We understand how terrifying it can feel to see flashing lights in your mirror, especially knowing a minor is with you. In Texas, Penal Code § 49.045 makes it a state jail felony to operate a motor vehicle while intoxicated and have a passenger younger than 15 years old. That charge carries 180 days to two years in the state jail division of the Texas Department of Criminal Justice, fines up to $10,000, driver’s license suspension, mandatory ignition interlock, and possible Child Protective Services involvement. Knowing your rights and following clear steps immediately after arrest can protect your freedom and your relationship with your child.

From the moment you are stopped, the clock is ticking on deadlines that affect both criminal charges and administrative proceedings. You face not only a criminal case but also an Administrative License Revocation (ALR) hearing and potential family services consequences. Evidence—from officer reports to chemical test results—forms the backbone of the state’s case. We guide you through gathering the evidence necessary to challenge that case. Our goal is to secure the best possible resolution: dismissal or reduction of charges, preservation of your driving privileges, and protection of your parental rights.

Recognizing The Elements Of The Offense

Under Texas Penal Code § 49.045(a), the state must prove you (1) operated a motor vehicle in a public place, (2) while intoxicated, and (3) had a child under 15 in the vehicle at the time. “Intoxicated” is defined in § 49.01(2) as having lost the normal use of physical or mental faculties due to alcohol or having a blood-alcohol concentration of 0.08% or greater. Unlike a standard DWI, the presence of a child elevates the classification to a state jail felony, triggering much harsher penalties.

Requesting Your ALR Hearing

Texas Transportation Code § 724.011 imposes a statutory license suspension when you refuse or fail a chemical test. You have just 15 days from your arrest to submit a written request for an ALR hearing and pay the required fee. If you miss that deadline, you forfeit your right to challenge the suspension, and the Department of Public Safety automatically suspends your license for 180 days or longer. We act swiftly to file your request, ensuring you retain driving privileges through the hearing process.

Assessing The Traffic Stop And Arrest

Every DWI defense starts by evaluating whether the officer had reasonable suspicion to stop your vehicle and probable cause to arrest you. Reasonable suspicion must be based on specific, articulable facts—such as swerving, speeding, or traffic violations—not just the odor of alcohol. If the initial stop lacked justification under the Fourth Amendment, we will file motions to suppress all evidence obtained afterward, including field sobriety tests and chemical results.

Challenging Field Sobriety Tests

Standardized field sobriety tests (SFSTs) like the horizontal gaze nystagmus, walk-and-turn, and one-leg stand are meant to indicate impairment, but they are highly subjective. Factors like poor lighting, uneven surfaces, or medical conditions can cause false positives. NHTSA itself notes significant error rates with these tests. We analyze video recordings and officer testimony to point out deviations from administration protocols and environmental factors that render the results unreliable.

Contesting Chemical Test Reliability

The breath and blood testing devices must be maintained, calibrated, and operated by certified individuals.  Under Texas Health and Safety Code § 724.018, all information concerning the analysis of the specimen must be provided to defense counsel.  We inspect maintenance logs, calibration records, and operator credentials for any gaps. Blood tests require a strict chain of custody; any break can cast doubt on sample integrity. If calibration certificates are expired or technicians are improperly trained, we challenge the admissibility of chemical test results.

Handling Child Endangerment Allegations

Beyond DWI, Texas Penal Code § 22.041(c) addresses child endangerment by criminal negligence when a person places a child in imminent danger. Proving this charge requires showing that your conduct created a risk of harm. We scrutinize whether the arresting officer’s conduct or the child’s actual exposure met the statute’s requirements. In many cases, aggressive policing tactics, rather than real danger to the child, form the basis for endangerment claims.

Managing CPS Involvement

When you’re arrested with a child passenger, law enforcement often contacts Child Protective Services. A CPS investigation can threaten custody or visitation rights. We partner with family-law attorneys to respond promptly to CPS inquiries, demonstrating that your home environment is safe. Providing CPS with proof of stable housing, employment, and completion of substance-evaluation programs can prevent formal removal actions.

Negotiating Plea Options

Prosecutors often offer plea bargains to standard DWI or lesser offenses in exchange for dropping the child-passenger enhancement. Accepting a reduced charge removes the felony designation but still carries penalties—fines, community service, probation, and license restrictions. We evaluate each offer against the strength of the state’s evidence and your personal circumstances, advocating for the least damaging resolution.

Preparing For Trial

If a favorable plea isn’t available, we prepare your case for trial. We subpoena records, retain expert witnesses on SFST conditions, and engage toxicology consultants. We craft jury instructions pursuant to the Texas Penal Code and Pattern Jury Charges to highlight the prosecution’s burden of proof and emphasize reasonable doubt. Our goal is a full acquittal on all charges, including child endangerment.

Protecting Your Parental Rights Post-Conviction

A DWI felony can trigger a family-law modification under Texas Family Code § 153.002, allowing the court to reconsider custody and visitation. We work with you to present evidence of rehabilitation: completion of DWI intervention programs, community service, and ongoing sobriety. Demonstrating stable parenting is essential to maintaining your relationship with your child.

DWI With A Child Passenger Frequently Asked Questions

What Immediate Steps Should We Take After A DWI Arrest With A Child Passenger?

First, we request the ALR hearing within 15 days to protect driving privileges. Then, we gather scene evidence—photos, witness statements, and video—and consult medical records if needed. We avoid making statements to the police before talking to our attorney. Every action in the first hours can affect the case.

Can We Refuse Field Sobriety Tests?

Yes, sobriety tests are voluntary. Refusal cannot be used against us in criminal court. However, refusal may lead to administrative license suspension. We weigh the risks and advise when refusal might help weaken the prosecution.

Does A Breath-Test Refusal Hurt Our Case?

Legally, breath-test refusal triggers automatic suspension but cannot be used as evidence of guilt at trial. We often refuse breath tests when the device maintenance is questionable or procedures weren’t followed, then challenge the suspension at the ALR hearing.

What Role Do SFST Videos Play In Defense?

Video recordings allow us to demonstrate to the jury how tests were administered, including lighting, officer instructions, or physical limitations that may have influenced performance. Judges and juries often find video more persuasive than officer testimony alone.

Will CPS Take Our Child After A DWI Arrest?

Not necessarily. CPS prioritizes safety. Prompt legal responses, demonstrations of a supportive home, and no prior CPS history usually prevent removal. We coordinate with family lawyers to present strong home-environment evidence quickly.

Can A Plea Bargain Remove The Felony Designation?

Sometimes. Prosecutors may offer to reduce the felony to a misdemeanor if we agree to terms such as probation, DWI education, and ignition interlock. We negotiate vigorously to secure the best plea when trial risks are high.

How Long Does A State Jail Felony Stay On Our Record?

Permanently, unless we qualify for expunction under Article 55.01. Eligibility requires deferred adjudication and no other convictions during probation. If we meet the criteria, we file an expunction to remove the record.

Will A DWI Affect Child Custody?

Felonies can prompt modification hearings under Family Code § 156.101. We prepare rehabilitation evidence—treatment completion, community programs, and stable living—to protect custody or visitation rights.

Is An Ignition Interlock Device Mandatory?

Under Transportation Code § 523.416, judges may require interlock devices for felony DWIs. We can request waivers in limited cases, but typically, an interlock is a standard condition of probation.

How Can We Demonstrate Rehabilitation To The Court?

Completion of DWI education programs, ongoing participation in support groups like AA, consistent employment, and clean drug/alcohol tests all demonstrate commitment to change. We compile certificates and affidavits for court filings.

Call Mark Diaz & Associates Today For An Aggressive DWI Defense

If you’re facing DWI charges with a child passenger, time is critical. Contact our Galveston DWI defense lawyers at Mark Diaz & Associates by calling 409-515-6170 to receive your free consultation. We represent clients in Galveston and across the greater Houston Area. Let’s protect your future together. Mark Diaz & Associates is ready to fight for your future!