If you are charged with DWI with a child passenger in Houston, the State is alleging that you operated a motor vehicle in a public place while intoxicated with a passenger younger than 15. The offense is generally a state jail felony, even if it is your first DWI allegation and the child was not injured.
For many parents, the most frightening part is the possibility of losing driving privileges or facing questions from the Texas Department of Family and Protective Services (DFPS) about their child’s safety.
Texas Penal Code § 49.045 requires prosecutors to prove both the underlying DWI allegation and the child-passenger element. Note that the child need not be related to the driver. However, the State must prove that the passenger was under 15 at the time the vehicle was operated.
Houston DWI with a Child Passenger Lawyer
A Houston DWI with child passenger case can quickly turn from a traffic stop into a serious felony case. The criminal case will generally proceed in a district court in the county where the alleged offense occurred, but a separate driver's license case may be started by the Texas Department of Public Safety (DPS).
The magistrate may impose strict bond conditions, including alcohol monitoring, drug testing, travel restrictions, or limits on contact with children. If a child-safety report is made, DFPS may also get involved, and child custody could be at stake.
Because of this, it is important to understand the accusation, preserve evidence early, and avoid making uninformed decisions. At Michael & Associates Criminal Defense Attorneys, we prepare DWI cases by examining both the State's intoxication evidence and the separate facts needed to prove the child-passenger allegation.
Our internal 2025 data showed a 63.6% favorable outcome rate in DWI cases taken to or resolved during the jury-trial process, including acquittals, dismissals, and directed verdicts. But past results do not guarantee or predict the outcome of another case. We will need to carefully study your case and review all the evidence before determining the best strategy.
What Is DWI with a Child Passenger Under Texas Law?
Texas Penal Code § 49.045 says DWI with a child passenger occurs when a person:
- Is intoxicated while operating a motor vehicle in a public place; and
- Operates that vehicle while it is occupied by a passenger younger than 15.
Under Texas Penal Code § 49.01, intoxication can be proved in either of two ways
- A BAC of 0.08% or higher; or
- Loss of the normal use of mental or physical faculties because of alcohol, drugs, medication, another substance, or a combination of substances.
The offense is a state jail felony unless another law increases the punishment based on qualifying prior convictions. It is a much more serious accusation than a standard first DWI with no aggravating facts.
The State does not have to prove that the child was injured. It also does not have to prove that the child was the driver's son or daughter. The key question is whether the passenger was younger than 15 at the time of the alleged DWI offense.
Can You Get a DWI with a Child Passenger if Your BAC Is Under 0.08?
Yes. A BAC below 0.08 does not automatically prevent a DWI with child passenger charge.
Texas recognizes two ways of proving intoxication. A prosecutor can rely on a BAC of at least 0.08. But the State can also claim that alcohol, drugs, medication, or another substance caused the driver to lose the normal use of mental or physical faculties.
What Are the Penalties for DWI with a Child Passenger in Houston?
DWI with a child passenger is generally a state jail felony in Texas, punishable by 180 days to two years in a state jail facility and a fine of up to $10,000. Additional license, bond, and administrative consequences may also apply.
| Issue | Possible consequence |
|---|---|
| Classification | State jail felony |
| Confinement | 180 days to two years in a state jail facility |
| Criminal fine | Up to $10,000 |
| Additional state fine | May apply after conviction, depending on the offense and prior convictions |
| Driver’s license | ALR consequences and a separate conviction-based suspension may apply |
| Ignition interlock | Generally required as a bond condition, subject to a statutory exception |
| Criminal record | A felony conviction can affect employment, housing, licensing, firearm rights, and other opportunities |
What Happens to Your Driver's License?
DWI with a child passenger can trigger an ALR license case, separate from the criminal case. This administrative process can result from refusing a requested breath or blood test or providing a specimen at or above the applicable BAC threshold.
You can request an ALR hearing to challenge the license case. But you must request it before the deadline.
The ALR deadline can depend on how notice is given:
- If a suspension notice is served at the time of the arrest, you generally have 15 days to request a hearing.
- If you initially consent to a blood test and DPS later receives a result that triggers suspension, they will mail you a Notice of Suspension. In this case, you have 20 days from the date the notice is mailed to request the hearing.
A conviction under § 49.045 can also produce a separate court-ordered driver's license suspension. For a standard § 49.045 conviction, Texas Transportation Code § 521.344 generally provides a range of 90 days to one year. If the person is punished under a qualifying Texas Penal Code § 49.09 enhancement, the suspension range can increase.
For defendants under 21, Texas Transportation Code § 521.342 generally provides a one-year suspension following a qualifying § 49.045 conviction, subject to the community supervision or interlock exception.
See Related: Underage DWI
Note: Depending on eligibility, you may be able to apply for an occupational driver's license to operate a non-commercial vehicle during a suspension.
Can CPS or DFPS Get Involved After a Houston DWI With a Child Passenger Arrest?
Yes, DFPS involvement is possible. But an arrest does not automatically mean a child will be removed from the home.
The Child Protective Investigations program of the Texas Department of Family and Protective Services (DFPS) investigates reports of suspected child abuse or neglect involving a parent or another member of the household. Its investigation is separate from the criminal DWI prosecution.
A DWI arrest involving a child could result in a report to DFPS, particularly when the facts raise additional safety concerns. DFPS may then evaluate whether abuse or neglect occurred and whether there is a continuing safety risk.
If a criminal DWI investigation and a DFPS investigation are occurring simultaneously, statements made in one matter can affect the other. Therefore, the criminal defense strategy should account for any ongoing family or child protection proceedings.
What Should You Do After a Houston DWI with Child Passenger Arrest?
The first days after a felony DWI arrest can affect both the criminal case and driver's license case. You should:
- Read the bond conditions immediately.
- Check the DPS paperwork for the ALR deadline.
- Preserve evidence, such as videos, receipts, phone records, and other evidence that can disappear or become harder to obtain.
- Avoid detailed public discussions of the arrest. Social media posts, texts, and statements to third parties can become evidence.
- Tell your defense attorney about any contact from DFPS. A child-protection investigation should be considered when planning the criminal defense.
Possible Defenses in a Houston DWI with a Child Passenger Case
A felony accusation does not eliminate the State's burden of proof. The defense should examine whether the evidence actually proves each part of the charge.
Potential defense issues can include:
- An unlawful traffic stop
- Lack of reasonable suspicion
- Lack of probable cause for arrest
- Weak evidence that the defendant was operating the vehicle
- Body-camera footage that contradicts the police report
- Poorly administered field sobriety tests
- Medical, physical, or environmental explanations for alleged impairment
- BAC below 0.08% combined with weak impairment evidence
- Problems with a breath-testing procedure
- Errors in blood collection, storage, analysis, or documentation
- An unsupported or defective blood-warrant affidavit
- Problems linking the laboratory specimen to the defendant
- Disputes about when the person was actually driving
- Problems proving that the alleged passenger was younger than 15
- Witness statements that contradict the officer's version of events
Note: The strongest defense depends on the evidence in the individual case.
Texas DWI with a Child Passenger Case Outcome
Charge: DWI with a Child Passenger
Location: Harris County 232nd District Court
Allegations: The client was arrested at a fast-food drive-through and charged with felony DWI with a passenger younger than 15. A blood test reportedly showed a BAC of 0.142. Charles Pelowski emphasized the client’s age, lack of criminal history, and other mitigating factors to negotiate a reduction.
Result: Charge reduced to a Class B misdemeanor with two years of deferred probation
Note: Past results do not guarantee or predict a similar outcome in any future case.
Helpful DWI Resources
- Texas DPS Driver License Enforcement Actions: Review license suspensions, reinstatement requirements, and ignition interlock information.
- Texas DPS ALR Hearing Request Information: Learn about the deadline for requesting a hearing after a DWI-related license suspension notice.
- Harris County District Clerk Criminal Case Records Search: Find publicly available felony case information and court records in Harris County.
- Harris County District Clerk Bond Information: Review general information about criminal bonds, forfeitures, and related court procedures.
- Texas DFPS Child Protective Investigations Information: Review general information about what may happen after DFPS receives a report involving a child.
Speak With a Houston DWI with a Child Passenger Lawyer
A Houston DWI with child passenger charge is not a routine DWI case. It is a felony allegation that may affect your freedom, driver's license, family, job, reputation, and long-term record.
The word felony does not relieve prosecutors of their burden to prove the case. But the right response starts with a focused review of the evidence.
Led by Charles A. Pelowski, a Texas Board of Legal Specialization-certified criminal law specialist with advanced training in forensic science, our Houston DWI defense team reviews the evidence and challenges weaknesses in the State’s case. We work to preserve evidence before it disappears, protect your driver’s license when possible, and pursue the strongest available resolution. We can help identify weaknesses early, preserve evidence before it disappears, protect the client's driver's license when possible, and prepare the criminal case for the best available resolution.
