Texas Driving While Intoxicated with a Child Passenger – Penal Code 49.045

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 What Are the Elements of Child Endangerment in Texas?

In Texas, child endangerment is any act that places a child under the age of 15 at risk of death, bodily injury, or physical or mental injury. Child endangerment in Texas can be an affirmative act or a failure to act. The act or failure to act can be done with intention, knowingly, recklessly, or negligently.

To be charged with child endangerment, one does not have to be the child’s parent. If a person is responsible for the well-being and care of a child but fails to fulfill that duty by knowingly or recklessly placing the child at risk of harm, they may be charged with child endangerment. A variety of different activities may qualify as child endangerment.

In Texas, the crime of child endangerment is what is referred to as a “state jail felony.” The range of punishment is 180 days to 2 years in state jail and payment of a fine of up to $10,000 fine or both. In Texas state, jail felonies are the least serious of felony criminal offenses. In some instances, a state jail felony can be elevated to a third-degree felony, which can lead to more jail time.

How Does Child Endangerment Relate to DWI Charges?

The Texas Penal Code section 49.045 provides that when a person operates a motor vehicle while intoxicated on a public road with a child under the age of 15 in the same vehicle, the person may be arrested for felony DWI with a child passenger. A DWI with a child passenger is a different offense than a simple DWI. A simple DWI, driving while intoxicated in Texas, is a Class B misdemeanor in Texas, whereas DWI with a child passenger is a state jail felony.

A person may be found guilty of DWI with a child passenger. If so, they face a driver’s license suspension for 180 days, a possible mandatory minimum jail sentence of 180 days with a possible maximum jail term of up to 2 years, and/or payment of a fine up to $10,000. In addition, the judge who sentences the perpetrator may add other penalties to the sentence. Some of these other penalties include the following:

  • Probation;
  • Community service for as many as 1,000 hours;
  • Required installation of an ignition interlock device;
  • Participation in an alcohol or drug education course;
  • Attendance at a DWI school or repeat offender DWI school;
  • Payment of extra fees as required by the judge.

In Texas, whether the perpetrator can be subject to these additional penalties depends on the following factors:

  • The impaired driver has prior felony convictions;
  • The impaired driver has prior DWI convictions, even if they are not for felony offenses;
  • The impaired driver causes an accident that results in serious bodily injury to the child passenger, another passenger of the same vehicle, a passenger in another vehicle, or a pedestrian;
  • The impaired driver causes an accident, and a passenger or pedestrian is killed.

Public intoxication is another criminal offense involving intoxication. A person commits public intoxication if they are present in public in a state of intoxication such that they present a danger to themselves or others. The crime is a Class C misdemeanor charge for an adult who is 21 years old or older. The punishment for this offender, who is 21 years or older, can also include a fine of up to $500.

For offenders under the age of 21, the punishment includes the suspension of their driver’s license for up to 30 days, mandatory attendance in an alcohol awareness class, and community service of as many as 2 hours in addition to a fine of up to $500.

How Is Driving While Intoxicated With a Child Passenger Defined in Texas?

Under state law, a person commits the offense of driving while intoxicated with a child passenger if they do the following:

  • Ingest alcohol or drugs to the point of intoxication;
  • Show impaired driving because of their intoxication;
  • Operate their vehicle in a public place;
  • With a minor under the age of 15 in the vehicle with them.

What Must the Prosecution Show to Prove Child Endangerment?

In general, the prosecution must demonstrate the following to prove the crime of child endangerment:

  • That the perpetrator knowingly or intentionally acted in a way that was likely to injure a child’s physical, moral, or mental well-being. A failure to act can also endanger a child;
  • The action, or failure to act, placed the child in imminent danger of serious harm or death;
  • The child was of the age that comes within the definition of child endangerment in Texas; and
  • The perpetrator was responsible for the child’s well-being.

Child endangerment does not require that the child was actually harmed. The prosecution must only show that the perpetrator placed the child at risk of harm. If the child was injured, the more outrageous the circumstances, the higher or lower the degree of the crime, which will dictate the punishment if the perpetrator is convicted.

What Blood Alcohol Content Is Required for Intoxication in Texas?

If a person has a blood alcohol content (BAC) of 0.08%, it can be presumed that the person is intoxicated and that their driving is impaired. However, a person can also be intoxicated and their driving impaired if their BAC is under 0.08%.

If a person’s BAC is under 0.08%, then the prosecution must prove that they were impaired in operating their motor vehicle. So, for example, the prosecution would have to have a police officer testify at trial that they observed the person’s driving, and it showed that the person was intoxicated and impaired.

Is DWI With a Minor Under 15 in the Vehicle a Misdemeanor in Texas?

As noted above, in Texas, this crime is a state jail felony.

What Is the Punishment for DWI With a Minor?

Again, if convicted, a person may be sentenced to the following:

  • A minimum of 180 days to a maximum of 2 years in jail;
  • Payment of a fine of as much as $10,000;
  • Both time in jail and payment of a fine.

It could also bring about the involvement of Texas Child Protective Services in an allegation of child endangerment.

What Kind of Punishment Might I Receive for a Second Conviction?

Texas state law makes DWI with a child under 15 in the vehicle a state jail felony. A second conviction is also a state jail felony, but the consequences might be more severe. In sentencing a person upon the occasion of their 2nd convocation, a judge may take any earlier DWI-related convictions into account and sentence the person to up to 2 years of incarceration.

If the perpetrator has a prior felony conviction, the judge may deem them a habitual criminal offender. As a result, they are at increased risk of being sentenced to the maximum of 2 years allowed under the law.

Are There Defenses to Charges of Child Endangerment?

A person may be able to raise the following defenses against child endangerment charges:

  • That the defendant did not or could not have known that their actions would endanger or injure the child;
  • That the results of their actions were not intended, could not reasonably be predicted, or were not of the kind that would normally occur in such instances;
  • That the defendant did not commit the crime;
  • That the prosecutor lacked evidence or failed to prove the elements of criminal child endangerment; or
  • That the defendant’s actions were accidental and not reckless, intentional, or willfully performed.

The defenses a defendant can raise against charges of child endangerment depend on the facts of the case.

Should I Contact an Attorney about My Charge?

If you have been charged with DWI with a child passenger, child endangerment, or any other DWI-related criminal offense, you want to consult a Texas DWI lawyer. LegalMatch.com can connect you to a lawyer who can identify any defenses that may be available to you and protect your rights.

Your lawyer may be able to negotiate a plea agreement, or they can represent you at trial if that is the best course of action for you.


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