A DWI arrest with a child under 15 in your vehicle carries severe, automatic consequences under Texas Penal Code §49.045. Even for first-time offenders, the charge becomes a state jail felony, with mandatory jail time, heavy fines, CPS involvement, and long-term damage to your rights and family.
When the consequences are this serious, working with an experienced Dallas DWI Defense Lawyer is critical to protecting your future.
At the Law Offices of Richard C. McConathy, our Texas DWI defense attorneys understand how aggressively these cases are prosecuted and how to fight back.
Call (972) 528-0478 now for a free consultation.
Why Is DWI With a Child Passenger a Felony in Texas?
Texas Penal Code §49.045 Explained
Texas Penal Code Section 49.045 defines the offense as when “(1) the person is intoxicated while operating a motor vehicle in a public place; and (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.”
Prosecutors don’t need to prove intent to harm—the child’s presence during a DWI is sufficient for felony charges. This 2003 law reflects Texas’s commitment to protecting vulnerable children from impaired driving risks.
Penalties for a DWI With a Child Passenger
The consequences of a conviction under Texas Penal Code §49.045 are severe and life-changing:
| Criminal Penalties | Administrative Consequences | Long-Term Impact |
|---|---|---|
| 180 days to 2 years in state jail facility | Driver’s license suspension (90 days to 1 year) | Permanent felony record |
| Up to $10,000 fine | Mandatory ignition interlock device | Loss of voting rights |
| Up to 1,000 hours community service | Annual surcharges of $1,000-$2,000 for 3 years | Loss of firearm rights |
| Mandatory alcohol education classes | No eligibility for occupational license during suspension | Employment limitations |
Critical Fact: Unlike standard DWI charges, Texas law prohibits deferred adjudication for DWI with child passenger cases, meaning no path exists to avoid conviction through probation completion.
👨👩👧👦 Child Protective Services (CPS) Involvement
Texas law requires prosecutors to file a CPS report immediately upon charging someone with DWI involving a child passenger.
CPS investigation process:
- Home environment examination and family interviews
- Substance abuse history review
- Child safety assessment
- Possible removal pending investigation (can take over a year)
- Potential permanent custody loss if deemed unfit
Even criminal acquittal doesn’t prevent CPS investigations or custody impact in family court.
What to Do After a DWI Arrest With a Minor Passenger
If arrested for DWI with a child passenger, every decision in the following hours is crucial:
1. Remain Calm and Polite
Never argue or become combative. All behavior can be used in criminal court and CPS proceedings.
2. Invoke Your Right to Remain Silent
State: “I’m invoking my right to remain silent and want to speak with an attorney.” Avoid discussing arrest circumstances or the child passenger.
3. Avoid Child-Related Statements
Never discuss your relationship to the child, destinations, time in vehicle, or family circumstances.
4. Contact a DWI Defense Lawyer Immediately
Time is critical. You have only 15 days to request an Administrative License Revocation (ALR) hearing for driving privileges.
5. Document Everything
Record details about the stop: reason given, tests administered, officer behavior, weather conditions, and witnesses.
Legal Defenses to a DWI With a Child Passenger in Texas
Strong Defense Strategies Available
Strong defenses exist even in child passenger cases. Our attorneys examine every aspect for potential challenges:
Constitutional Violations:
- No reasonable suspicion for traffic stop
- Unlawful detention beyond stop scope
- Fourth Amendment violations against unreasonable search/seizure
Technical Defenses:
- Faulty breathalyzer calibration or administration
- Blood test chain of custody issues
- Improper field sobriety procedures
- Medical conditions affecting results
Factual Challenges:
- Age verification of passenger (must prove under 15)
- Insufficient evidence of intoxication
- Alternative explanations for observed behavior
Favorable Outcomes Possible
While deferred adjudication isn’t available, other opportunities exist:
Possible Charge Reductions:
- Dismissal with refiling as standard DWI
- Reduction to obstruction of highway/passageway
- Negotiation for lesser included offenses
Common Defense Strategy: Age verification challenges can be highly effective, as the prosecution must prove the passenger was under 15 years old at the time of the offense. Even a few months difference in age can mean the difference between felony and misdemeanor charges.
Trial Strategy: Our attorneys take cases to trial when appropriate, focusing on reasonable doubt about prosecution elements.
Why Choose Law Offices of Richard C. McConathy?
🏆 Local Experience That Matters
35+ years of combined experience defending DWI cases in Dallas County and surrounding areas provides unmatched insight into local courts, prosecutors, and judges. We understand jurisdictional handling of DWI with child passenger cases and tailor approaches accordingly.
Our track record includes:
- Extensive experience in DWI defense across North Texas
- Thorough understanding of both criminal and administrative procedures
- Strong relationships with local courts and prosecutors
🎯 Comprehensive Legal Strategy
We coordinate your entire defense:
- Criminal defense for DWI charges
- CPS case management and family law guidance
- ALR hearing representation
- Family law attorney coordination when needed
Hypothetical Scenario: Consider a parent arrested after a minor fender-bender. While the criminal case focuses on intoxication evidence, CPS simultaneously examines parental fitness, home environment, and child safety. Our integrated approach addresses both proceedings strategically, ensuring actions in one case support the defense in the other.
🚨 Critical Deadlines You Cannot Miss
| Deadline | Action Required | Consequence of Missing |
|---|---|---|
| 15 days from arrest | Request ALR hearing | Automatic license suspension |
| 30 days from release | Install ignition interlock device on all vehicles | Bond revocation and return to jail |
| Immediately | Contact experienced DWI attorney | Loss of critical evidence and defense options |
Contact a Texas DWI Lawyer Today
Time is critical in DWI with child passenger cases. Every day you wait:
- Evidence disappears and witnesses forget details
- Defense options diminish
- CPS investigations advance
Don’t face this alone. Call (972) 528-0478 now for your free consultation.
Our phones are answered 24/7. When you call, you’ll speak directly with an experienced attorney who can evaluate your case, explain your rights and options, begin protecting your interests, and coordinate with CPS if necessary.
Schedule your free consultation online or call (972) 528-0478 immediately.
FAQs About DWI With a Child in Texas
Is DWI with a child a felony in Texas?
Yes. Under Texas Penal Code §49.045, having a passenger under 15 while intoxicated makes any DWI a state jail felony—even for first-time offenders. This is automatic regardless of your criminal history.
What is the punishment for DWI with a child in Texas?
Penalties include 180 days to 2 years in state jail, up to $10,000 fine, mandatory license suspension, ignition interlock device installation, and thousands in additional surcharges. You’ll also face a permanent felony record and potential loss of constitutional rights.
Can I lose custody if convicted of DWI with a child?
Yes. A conviction triggers mandatory CPS reporting and investigation, which can result in temporary custody modifications, ongoing supervision, or permanent custody loss. Even if you’re acquitted criminally, the arrest itself can be used against you in family court.
How can a lawyer help me fight this charge?
An experienced DWI defense attorney can challenge evidence, negotiate with prosecutors, represent you at ALR hearings, coordinate with CPS proceedings, and protect your constitutional rights. Many cases involve constitutional violations or technical defenses that can lead to dismissal or significant charge reduction.
What if the child wasn’t hurt?
It doesn’t matter. Texas law makes DWI with child passenger a felony even without property damage or personal injury. The statute is designed to prevent harm by punishing the risk itself.
Can I get probation for DWI with child passenger?
While deferred adjudication is prohibited by law, judges and juries can still grant regular probation. However, you cannot avoid a conviction through probation completion like with other charges.