Texas Penal Code 49.045 – Driving While Intoxicated with Child Passenger

WHAT IS DRIVING WHILE INTOXICATED WITH CHILD PASSENGER (“DWI W/ CHILD”) IN TEXAS?

The Texas law against driving while intoxicated with a child passenger, commonly abbreviated as “DWI w/ Child,” prohibits driving while intoxicated with a passenger under 15 years of age in the vehicle.

• What is the legal limit for driving while intoxicated (DWI) in Texas? Texas Penal Code Section Section 49.01 defines “intoxication” in two ways: (1) a blood alcohol concentration (“BAC”) of 0.08 or more; or (2) 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.The subjective definition, or one’s loss of normal use of mental or physical faculties, does not require proof that a person’s blood alcohol concentration was above 0.08.

  For example, in Aguirre v. State, the defendant was arrested for DWI, and his blood test later showed a 0.075 blood alcohol concentration. But the other evidence showed he was going 102 miles per hour, had bloodshot eyes, slurred speech, and a can of beer in the car. The defendant also showed several clues of intoxication during the Standardized Field Sobriety Tests (SFSTs). Based on the evidence, the jury found him guilty, and the appellate court affirmed.

WHAT IS THE DRIVING WHILE INTOXICATED WITH CHILD PASSENGER LAW IN TEXAS?

Tex. Penal Code § 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER

(a) A person commits an offense if:

(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.

(b) An offense under this section is a state jail felony.

WHAT IS THE PENALTY CLASS FOR DRIVING WHILE INTOXICATED WITH CHILD PASSENGER IN TEXAS?

Driving while intoxicated with a child passenger in Texas is classified as a state jail felony, which carries a possible penalty of 180 days to two years in a state jail facility.

WHAT IS THE PUNISHMENT RANGE FOR DRIVING WHILE INTOXICATED WITH CHILD PASSENGER IN TEXAS?

The punishment range for driving while intoxicated with a child passenger, a state jail felony, is between 180 days and two years in a state jail facility, and a maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR DRIVING WHILE INTOXICATED WITH CHILD PASSENGER IN TEXAS?

A person charged with driving while intoxicated with a child passenger may be eligible for probation after a conviction for a period between two and five years, with the possibility of extending supervision for up to ten years.

A person charged with driving while intoxicated with a child passenger is not eligible for deferred adjudication to avoid a conviction.

• Will ignition interlock or other alcohol monitoring device be required after a DWI with child arrest? Texas Code of Criminal Procedure article 17.441 requires a person arrested for DWI with child to install ignition interlock on any vehicle a person owns or regularly drives within 30 days of release on bond. The accused will be required to pay all accompanying fees to the company contracting with the county that installs the device.

WHAT ARE THE DEFENSES TO DRIVING WHILE INTOXICATED WITH CHILD PASSENGER IN TEXAS?

The statute does not authorize specific defenses to driving while intoxicated with a child passenger. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.

• What is the necessity defense to driving while intoxicated in Texas? Texas Penal Code Section 9.22 authorizes a person to commit otherwise criminal conduct if it was immediately necessary to avoid imminent harm, and the urgency of avoiding the harm clearly outweighed the harm sought to be prevented by the criminal conduct.The necessity defense is available for a driving while intoxicated charge. In Maciel v. State, the defendant and her brother went out drinking. Her brother drove her vehicle, but stopped in the road and started vomiting. The defendant got into the driver’s seat to move the car, but smoke came from under the hood as she tried to move it. An officer saw her, and she was arrested for DWI. The defendant argued it was necessary, and that she was not operating the vehicle.

  The Texas Court of Criminal Appeals held the defendant was operating the car, but was entitled to the defense of necessity. She admitted to attempting to move the car out of the road due to safety concerns.

• Can a person be convicted of DWI in Texas if the car was parked? Yes, depending on the circumstances. The Texas law against driving while intoxicated only requires proof a person was operating the vehicle while intoxicated. Texas law does not define “operating,” but courts have interpreted the term to include sitting in the driver’s seat of a parked car with the engine running.For example, in State v. Espinosa, the defendant was asleep at 3:15 p.m. in her parked, running vehicle in a school pick-up line. She smelled of alcohol, and was never seen actually driving or moving her car, but was charged with driving while intoxicated. The Court of Criminal Appeals held she was operating her vehicle within the purview of the law.

• Is a person required to submit to a DWI blood test in Texas? Texas law permits a person to refuse a blood or breath test if arrested for driving while intoxicated. But pursuant to Texas Transportation Code Section 724.012, police may obtain a warrant based on probable cause to extract a specimen of an arrestee’s blood. The Transportation Code also requires a person’s license to be suspended for 180 days if the person refuses to consent to the taking of a blood or breath specimen. Learn more.In Mitchell v. Wisconsin, the U.S. Supreme Court held that unconscious drivers suspected of drunk driving are subject to warrantless blood draws due to exigent circumstances, and a compelling need of the State to promote the paramount interest of highway safety.

• What is a “public place” where a person can be arrested for DWI in Texas? Texas Penal Code Section 1.07(40) defines a “public place” as any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of school, hospitals, apartment houses, office buildings, transport facilities, and shops.Private parking lots have been upheld as public places within the Penal Code definition. For example, in State v. Gerstenkorn, the defendant was arrested for driving while intoxicated in a gated community, with a security guard and limited public access. The appellate court determined the gated community fell within the definition of a public place.

WHAT IS THE STATUTE OF LIMITATIONS FOR DRIVING WHILE INTOXICATED WITH CHILD PASSENGER IN TEXAS?

The limitation period for driving while intoxicated with a child passenger, a state ail felony, is three years.

DRIVING WHILE INTOXICATED WITH CHILD PASSENGER IN TEXAS

Texas law punishes driving while intoxicated with a child passenger under 15 years of age as a felony. A person may only be convicted for each incident of driving, not for how many child passengers are in the car.

TEXAS DRIVING WHILE INTOXICATED WITH CHILD PASSENGER COURT CASES

The case law regarding driving while intoxicated with a child passenger in Texas shows the wide range of consequences for violating the statute.

• In Bigon v. State, the defendant was driving home with his 8-year-old son when he hit another vehicle head-on, killing the two occupants. He had a 0.227 BAC an hour after the crash. He was convicted of felony murder with the underlying felony as driving while intoxicated with a child under 15 years old, and the appellate court affirmed.
• In Ex parte Cook, the defendant was convicted of two counts for driving while intoxicated with a child, because he had two child passengers in the car. The Texas Court of Criminal Appeals reversed, and vacated one of the convictions. The unit of prosecution is each incident of driving, not each child passenger in the car. He could thus only be convicted once for the single incident of driving while intoxicated with two child passengers.