Collateral DWI consequences, such as loss of driving privileges and increased auto insurance rates, are sometimes worse that the probation, fines, and other direct consequences. That’s especially true with regard to Texas Penal Code 49.045 enhancement cases. If the defendant had a child under 15 in the vehicle, the DWI prosecution often has both criminal and civil consequences.
Quite frankly, these enhancements are difficult for even experienced DWI lawyers to defend. Any child in any passenger area, which includes places like a pickup truck’s bed, is sufficient to elevate the charges. So, it’s sometimes best to accept a harsher sentence for the DWI if the prosecutor agrees to drop the enhancement charge.
DWI child passenger convictions often lead directly to TPC 22.041 child endangerment charges. It is a state jail felony to “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engage in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.”
Note that the child must be in imminent danger of death or serious bodily injury. Unless the DWI also involved a collision or near-collision, this element is difficult to establish in court. Drunk drivers do cause about half of the serious injury and fatal car crashes in Tarrant County. However, the risk of such an incident in any given case is theoretical as opposed to imminent. That’s a big difference.
Here’s where it gets bad. The child DWI passenger could be any child. Relationship through blood or marriage is not a requirement. Endangering a child, even if the state does not bring separate criminal charges, could radically affect family law procedures. With something like that on your record, it’s almost impossible to get full custody of a child.
Additionally, child passenger DWIs stay on your record forever. After ten years, prosecutors cannot use the conviction for DWI enhancement purposes. But it is admissible for pretty much any other legal purpose. That includes a future divorce or child custody matter.
Assume Ben got pulled over for DWI when he was taking his 16-year-old son and his son’s 15-year-old friend home from a party. Even though Ben has no biological or legal relationship with the 15-year-old, and even if Ben does not know the boy’s name, the 49.045 enhancement applies. In any future family law proceeding, even something ten years down the road, that DWI child passenger conviction will almost certainly come up.
DWI child passenger enhancements are a very big deal. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. Convenient payment plans are available.