DWI with Child Law Image

Driving While Intoxicated (DWI) with Child Passenger

Driving While Intoxicated with Child Passenger (aka “DWI with Child“) is an offense that you commit by driving “drunk” or under the influence of drugs while a child younger than 15 years old is in the car. Driving While Intoxicated with Child Passenger is a DWI offense that automatically turns a “simple” DWI into a state jail felony. Learn more about DWI offenses

DWI offenses are found in Chapter 49 of the Texas Penal Code. DWI with Child is not simply a DWI enhancement or subsection of the basic DWI offense. DWI with Child is its own offense.

How can I be charged with Driving While Intoxicated with Child Passenger?

DWI with Child is defined in Section 49.045(a) of the Texas Penal Code as follows:

(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.

Along with the four elements common of DWI offenses (intoxication, operation, motor vehicle and public place) the Driving While Intoxicated with Child Passenger offense requires the state’s attorneys to also prove that a passenger 14 years old or younger was in the car while the DWI was taking place.

What is the punishment for a Driving While Intoxicated with Child Passenger conviction?

The Driving While Intoxicated with Child Passenger offense is a state jail felony.1 Under Texas Penal Doe Section 12.35, a state jail felony is punishable by a minimum of 180 days in a state jail and a maximum of 2 years in a state jail and a maximum fine of $10,000. Learn more about DWI conviction penalties

What if the child passenger is my child?

If the child passenger in your car is your own child, the Texas Department of Family and Protective Services (DFPS) will likely get involved and accuse you of endangering the welfare of your child. If DFPS gets involved, your child could be removed from your custody pending the outcome of an investigation and welfare hearing that can take a year or more. It is also possible that CPS may remove your child from your home permanently if it determines that you are not a suitable parent. CPS cases are complex and separate from the criminal case, and your rights are very different than they are in criminal court. You will need to address these issues with a family law attorney.

Because Texas DFPS reasons that a Driving While Intoxicated with Child Passenger case places the child in danger of death or serious injury, DFPS classifies this offense as a form of neglect under Section 261.001 of the Texas Family Code.2

Does it matter if the child passenger was not injured?

You may be charged and convicted of Driving While Intoxicated with Child Passenger even if the child in the vehicle was not injured and even if you did not injure any one else at all.

What should I do if the Texas Department of Family and Protective Services gets involved in my Driving While Intoxicated with Child Passenger case?

If the Department of Family and Protective Services (DFPS) gets involved in your DWI with Child Passenger case because your child or children were in the car, you will need to hire an attorney who is experienced in handling child protective services cases in addition to a criminal lawyer. Criminal law and CPS-related family law are very different practice areas.

CPS is most often alerted about a possible case of child endangerment in a Driving While Intoxicated with Child Passenger case by the arresting officer or the prosecutor handling the case. Although CPS is not always alerted, professionals (including police and prosecutors) are mandated by law to report such cases3.

If CPS decides they want to get involved, they are able to remove children from a home quickly and without notice. 4 However, Texas law requires an “adversary” hearing within 14 days (with one possible 7 day extension) from the removal.5 You should make sure to be represented by an attorney at this hearing to contest the removal.

It is important to remember that you are not required to talk to DFPS should they get involved in your Driving While Intoxicated with Child Passenger case. However, you should make the decision about whether to talk with CPS or cooperate more fully only with the advice of an attorney.


Legal References:

1Texas Penal Code Section 49.045(b)

2 Texas Family Code §261.001(4) –

‘“Neglect” includes:
(A) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;
(B) the following acts or omissions by a person:
(i) placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child …’

3Texas Family Code 261.101

4Chapter 262 of the Texas Family Code governs the procedures of the Department of Family and Protective Services.

5Texas Family Code Section 262.201

Published by Criminal Defense Attorney on and last modified