Under any circumstance, a charge of driving while intoxicated is a serious crime in Texas that can greatly affect your everyday life. A DWI conviction may include possible jail time, steep fines, loss of driving privileges, and other consequences. However, the consequences for DWI are even steeper if you are convicted of driving while intoxicated with a minor passenger in the vehicle.
The consequences of a DWI with a child passenger are not limited to your DWI criminal case either. The Texas Department of Family and Protective Services (DFPS) could be called to investigate the incident as child abuse.
With consequences so severe, it is important you don't face these charges alone. The Law Office of E. Jason Leach is dedicated to defending the rights of the accused. If you're facing DWI charges in Odessa, Texas area, the Law Office of E. Jason Leach is ready to help.
What is a DWI With Child Passenger Under Texas Law?
A DWI with a child passenger is the same underlying crime as a standard DWI. The difference is primarily in the penalty phase of a case, given that a DWI with a child passenger carries steeper penalties. To be convicted of a DWI under the Texas Penal Code, the prosecutor must prove that you were operating a motor vehicle while intoxicated. Texas law 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, or any other substance into the body; or
- Having an alcohol concentration of 0.08 or more.
The state must also prove that there was a child passenger in the vehicle at the time the DWI occurred. For these purposes, the law considers anyone under the age of 15 as a child.
It is common for prosecutors to bring evidence of a driver's blood alcohol concentration (BAC) to prove intoxication. Most of the time, it involves test results from a sample of breath, blood, or urine. The absence of a testable sample doesn't mean a prosecutor can't bring a case, however. The prosecutor can rely on other evidence to prove intoxication, including failed field sobriety tests, the presence of an open container of alcohol, or even an admission by the driver of consuming drugs or alcohol prior to operating the motor vehicle.
Potential Punishment for a DWI with Child Passenger
If convicted of a DWI with a child passenger, you can expect a stiffer penalty than a standard DWI in some cases. A conviction will lead to incarceration in a state jail facility for between 180 days and 2 years. It also carries a maximum fine of $10,000. In addition to these penalties, a conviction for DWI with a child passenger may require:
- Community probation
- DWI school
- Community service
- Drug or alcohol education course
- Ignition interlock device
- Driver's license suspension
- Court costs and fees
Defenses for a DWI With Child Passenger Charge
For many crimes, there is a wide array of potential defenses. However, many common defenses like lacking the necessary intent don't apply in a DWI with a child passenger case. However, there are three major defenses that are commonly raised in these types of cases: traffic stop defenses, DWI testing defenses, and factual defenses.
Traffic Stop Defenses
The first element of a DWI case is whether or not you are operating a motor vehicle. And like most charges involving the operation of a moving vehicle, there are guidelines the police must follow when they attempt to detain or arrest you. A police officer may not pull you over without “reasonable suspicion” that you have committed a crime. That includes infractions outside of a DWI like speeding or failing to yield.
If a law enforcement officer stops your vehicle without reasonable suspicion of a crime, any evidence collected during the stop will be excluded from evidence through a legal doctrine known as “fruit of the poisonous tree.” Such evidence can include blood alcohol concentration tests, evidence of an open container, and even admissions of drunken driving. An experienced criminal defense attorney will be able to help hold the state to their burden of proving their case beyond a reasonable doubt and can leverage any mistakes the police may have made.
DWI Test Defenses
Proving that you were intoxicated at the time you were operating a motor vehicle is one of the major challenges for prosecutors. The strongest evidence of intoxication available to a prosecutor is typically a blood, breath, or urine test. However, there are strict guidelines that must be followed to ensure samples are not contaminated. Breath test machines must be calibrated properly, while blood and urine samples must be handled with care. If an experienced defense attorney can show these guidelines weren't followed they may be able to have those test results excluded from trial.
There are other elements to a DWI with a child passenger case that might not be immediately obvious to the untrained eye. Certain facts must be present for a conviction to be appropriate. Law enforcement officers make mistakes, and a defense attorney may be able to win the acquittal of their client if they can identify them.
For instance, if the state incorrectly believes a passenger in a vehicle was a minor at the time of the arrest the upgraded punishment range would not be appropriate. Additionally, there are often messy factual issues surrounding these cases. For instance, an attorney may be able to build a strong defense in a case where you were intoxicated but mistakenly believed to have operated a motor vehicle.
Finding the Right Texas DWI Defense Attorney
A conviction for DWI with a child passenger can follow you for the rest of your life. The Law Office of E. Jason Leach is ready to help. If you are facing DWI charges in Odessa, Texas, E. Jason Leach is ready to discuss your case and develop a defense strategy that will result in a favorable outcome. Contact the Law Office of E. Jason Leach today for a free consultation.