San Antonio DWI with a Child Passenger Attorney

A DWI arrest is serious, but the charge becomes a felony when police allege that a child younger than 15 was in the vehicle. Texas treats DWI with a child passenger as a separate state jail felony, even when the driver has no previous DWI convictions.

A conviction can expose a person to state jail time, a fine of up to $10,000, driver’s license consequences, ignition interlock requirements, and possible involvement from the Texas Department of Family and Protective Services. The arrest could also affect employment, professional licenses, family court matters, and child-custody arrangements.

However, an arrest does not automatically result in a conviction. The prosecution must prove the underlying DWI allegation and establish that a qualifying child passenger was in the vehicle. The traffic stop, arrest, field sobriety tests, chemical testing, video evidence, and age of the passenger should all be investigated.

If you are facing this charge in Bexar County, Thornton Criminal Defense’s San Antonio DWI with a child passenger attorney can review the allegations, explain the potential consequences, and determine which defenses may apply.

What Is DWI With a Child Passenger in Texas?

Under Texas Penal Code Section 49.045, a person commits DWI with a child passenger when the person:

• Is intoxicated while operating a motor vehicle in a public place; and
• Has a passenger in the vehicle who is younger than 15 years old.

For this particular offense, a child passenger means someone who has not yet reached age 15. A 15-year-old passenger would therefore not satisfy the child-age element under this statute, although other charges or circumstances could still apply.

The State must prove the passenger’s age. Relevant evidence may include identification records, birth records, witness testimony, or statements made during the investigation.

How Does Texas Define Intoxication?

The prosecution may attempt to establish intoxication by alleging that the driver:

• Did not have the normal use of mental or physical faculties because of alcohol, drugs, a controlled substance, another substance, or a combination of substances; or
• Had an alcohol concentration of 0.08 or higher.

This means a breath or blood result of 0.08 is not required for the State to file a DWI charge. Prosecutors may rely on driving behavior, officer observations, statements, video recordings, field sobriety tests, and other evidence.

Likewise, the presence of a child does not by itself prove intoxication. The State must still establish the underlying DWI allegation.

Is DWI With a Child Passenger a Felony?

Yes. DWI with a child passenger is ordinarily classified as a state jail felony in Texas. This is true even if the person has never previously been convicted of DWI.

A standard first DWI is normally a Class B misdemeanor unless an aggravating circumstance applies. By contrast, an allegation that a passenger younger than 15 was in the vehicle creates a separate felony offense.

The felony classification can produce consequences that extend well beyond the immediate sentence, including problems with employment, housing, firearms, professional licensing, and family court proceedings.

What Are the Penalties for DWI With a Child in Texas?

A state jail felony is punishable by:

• Between 180 days and two years in a state jail facility; and
• A fine of up to $10,000.

Other possible consequences and requirements may include:

• Community supervision, when legally available;
• An ignition interlock device;
• Community service;
• DWI education or substance-abuse treatment;
• Alcohol monitoring;
• Court costs and supervision fees;
• A driver’s license suspension;
• Restrictions imposed as conditions of bond; and
• Possible family-services or child-custody consequences.

The actual sentence depends on the evidence, criminal history, additional allegations, court, and final resolution. Probation or another alternative outcome may be available in some cases, but it should not be assumed.

Will an Ignition Interlock Be Required?

An ignition interlock device requires a driver to provide a breath sample before the vehicle will start. It may also require additional samples while the vehicle is being operated.

Texas law ordinarily requires a magistrate to impose an ignition interlock condition when releasing a person on bond for DWI with a child passenger, unless a statutory exception applies. This means an interlock requirement can begin while the criminal case is still pending, before any conviction.

An ignition interlock may also be required as a condition of community supervision or restricted driving privileges. The person may be responsible for installation, calibration, monitoring, and maintenance costs.

Will Your Driver’s License Be Suspended?

A DWI with a child passenger arrest can create more than one potential license issue. These consequences should be evaluated separately.

Administrative License Revocation

Texas DPS may initiate an Administrative License Revocation proceeding when a person allegedly refuses or fails a breath or blood test. The ALR matter is separate from the felony criminal case.

The administrative suspension period depends on factors such as:

• Whether the driver refused or provided a specimen;
• The reported alcohol concentration;
• The driver’s age;
• Prior qualifying alcohol-related enforcement actions; and
• Whether a hearing was requested on time.

Conviction-Related Suspension

A criminal conviction may also lead to a separate driver’s license suspension. The child-passenger allegation does not automatically mean that every defendant will receive the same suspension period. The applicable period can depend on the person’s record, sentence, and relevant license laws.

How Long Do You Have to Request an ALR Hearing?

In many cases, a request for an ALR hearing must be received within 15 days after the suspension notice is served. Different notice procedures may apply when blood-test results are received later and the suspension notice is mailed.

If the applicable deadline is missed, DPS may deny the hearing request and allow the administrative suspension to take effect. Learn more from Thornton Criminal Defense’s San Antonio suspended license attorney.

Can CPS Become Involved After the Arrest?

A DWI arrest involving a child may be reported to the Texas Department of Family and Protective Services. This can lead to an investigation into the child’s safety and the circumstances surrounding the arrest.

Possible steps may include:

• Contact with the child’s parents or guardians;
• Interviews with family members;
• A review of the child’s living situation;
• A request for a safety plan;
• Temporary placement with another responsible adult; or
• Additional court proceedings in serious cases.

CPS involvement is not automatic in every case, and an investigation does not necessarily mean a child will be removed from the home. The response depends on the facts, the child’s immediate safety, whether another caregiver is available, and any prior history.

Because statements made during a family-services investigation could affect the criminal case, a person facing both matters should speak with an attorney before providing detailed accounts of the incident.

Can the Charge Affect an Existing Custody Case?

A DWI with a child passenger allegation may become relevant in a divorce, custody, or visitation proceeding. The other parent may raise the arrest as a safety concern or ask the family court to modify possession, transportation, or supervision arrangements.

A family court may consider:

• Whether the child was in the vehicle;
• Whether an accident occurred;
• The child’s condition after the incident;
• The driver’s alcohol or drug history;
• Compliance with bond conditions;
• Participation in treatment or education; and
• Any findings made by CPS.

The criminal and family cases may proceed separately. An arrest does not establish guilt, but the allegation can still create immediate family-law concerns.

What Should You Do After the Arrest?

1. Save all paperwork. Keep your bond documents, court notices, temporary driving permit, DIC-24, DIC-25, property receipts, and ignition interlock instructions.
2. Review your bond conditions. Make sure you understand all alcohol-monitoring, interlock, reporting, travel, and contact restrictions.
3. Write down what happened. Record the reason given for the stop, questions asked, tests administered, specimen requested, and what happened to the child after the arrest.
4. Preserve information about the passenger’s age. The age of the passenger is a required element of the felony charge.
5. Do not discuss the case publicly. Avoid posting about the arrest, alcohol consumption, the child, or interactions with police on social media.
6. Be careful when communicating with CPS. Do not ignore an investigator, but consider obtaining legal advice before making detailed statements.
7. Address the ALR deadline. Review any suspension notice immediately.
8. Contact a defense attorney. Early investigation can help preserve video, witness accounts, testing records, and other evidence.

What Defenses May Apply?

A child-passenger allegation does not eliminate the defenses that may apply to the underlying DWI case. The State must still prove each required element beyond a reasonable doubt.

The Traffic Stop Was Not Lawful

Police generally need a lawful reason to stop a vehicle. An attorney can examine dash-camera footage, body-camera recordings, dispatch information, witness accounts, and the officer’s stated reason for the stop.

If the stop violated the law, the defense may ask the court to suppress evidence obtained as a result.

The Officer Lacked Probable Cause to Make an Arrest

The defense can compare the officer’s report with available video and witness evidence. Recordings may show that the driver’s speech, coordination, behavior, or responses did not match the written description.

Field Sobriety Tests Were Unreliable

Field sobriety testing may be affected by uneven pavement, traffic, weather, footwear, fatigue, anxiety, injuries, medical conditions, or unclear instructions.

Learn more about how Thornton Criminal Defense evaluates field sobriety testing in San Antonio.

Breath or Blood Evidence Is Questionable

Breath-test evidence may raise questions about maintenance, calibration, operator qualifications, testing procedures, mouth alcohol, medical conditions, and environmental interference.

Blood evidence may involve issues concerning the warrant, collection procedure, labeling, storage, chain of custody, contamination, laboratory analysis, and interpretation of the reported result.

The State Cannot Establish the Passenger’s Age

The child-passenger statute applies when the passenger is younger than 15. If the State cannot prove the passenger’s age, it may be unable to establish this particular felony offense, even if prosecutors continue pursuing an underlying DWI allegation.

The Defendant Was Not Operating the Vehicle

The State must prove that the defendant operated the motor vehicle. Cases involving parked vehicles, multiple occupants, unclear driving evidence, or an accident discovered after the fact may raise questions about who was operating the vehicle.

Can DWI With a Child Passenger Be Reduced or Dismissed?

The charge may potentially be dismissed, reduced, negotiated, or contested at trial, but no result can be guaranteed. Available options depend on the evidence and circumstances.

Factors that may influence the outcome include:

• The legality of the traffic stop and arrest;
• The strength of the evidence of intoxication;
• The reliability of breath or blood testing;
• The contents of body-camera and dash-camera footage;
• The passenger’s age;
• Whether an accident or injury occurred;
• The defendant’s criminal history;
• Compliance with bond and interlock conditions; and
• Mitigation presented to the prosecutor or court.

An attorney should review the evidence before advising a person to accept a plea or proceed to trial.

What Are the Long-Term Consequences of a Felony Conviction?

In addition to the criminal sentence, a state jail felony conviction may affect:

• Employment and background checks;
• Professional licenses;
• Housing applications;
• Firearm rights;
• Insurance costs;
• Immigration status for noncitizens;
• Child-custody and visitation proceedings; and
• Future criminal cases.

The specific collateral consequences depend on the person’s occupation, immigration status, family circumstances, and criminal record.

Why Work With Thornton Criminal Defense?

Brad Thornton is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Before becoming a defense attorney, he served as a Chief Prosecutor and worked with a District Attorney’s vehicular-crimes team.

His experience includes DWI cases involving breath and blood evidence, field sobriety testing, crash investigations, injuries, and serious felony allegations. He uses that background to anticipate how prosecutors may evaluate the evidence and identify weaknesses in the State’s case.

Depending on the circumstances, Thornton Criminal Defense may:

• Investigate the legality of the traffic stop and arrest;
• Obtain body-camera and dash-camera footage;
• Review the evidence concerning the passenger’s age;
• Evaluate field sobriety testing;
• Examine breath or blood-test evidence;
• Address ignition interlock and bond conditions;
• Request an ALR hearing when applicable;
• Coordinate the defense around possible CPS concerns;
• Negotiate with prosecutors; and
• Prepare the case for trial when appropriate.

Talk to a San Antonio DWI Lawyer About a Child-Passenger Charge

DWI with a child passenger is a felony accusation that can affect your freedom, driver’s license, employment, family relationships, and future. However, an accusation is not the same as a conviction.

Thornton Criminal Defense represents people charged with DWI in San Antonio, Bexar County, and surrounding South Texas communities. Brad Thornton can review the traffic stop, chemical testing, video evidence, passenger-age allegation, license consequences, and possible defenses.

For a broader explanation of Texas DWI law and the defense process, visit our complete San Antonio DWI defense guide.

Call (210) 439-5627 or contact Thornton Criminal Defense online to request a free, confidential consultation.

This article is intended for general informational purposes and does not constitute legal advice. Every case is different, and past results do not guarantee a similar outcome.