Facing a DWI with a Child Passenger Charge in San Antonio? Your Essential Legal Guide

If you have been arrested for Driving While Intoxicated (DWI) with a child passenger under the age of 15 in Texas, you are facing one of the state’s most severe and aggressively prosecuted criminal charges.

Under Texas Penal Code Section 49.045, this is not a standard misdemeanor DWI—it is a state jail felony from the outset, regardless of whether this is your first offense. At Barton & Associates, Attorneys at Law, we understand the overwhelming fear, shame, and confusion that follows such an arrest. The stakes are monumental: your freedom, your driver’s license, your parental rights, and your permanent record are all in immediate jeopardy. Prosecutors and judges treat these cases with extreme seriousness, driven by the desire to protect children. However, an arrest is not a conviction. With an immediate, strategic, and experienced defense from our team, you can fight to protect your future and mitigate the life-altering consequences of this charge.

What Constitutes DWI with a Child Passenger in Texas?

This specific offense occurs when two critical elements converge:

• The Commission of a DWI: You are legally intoxicated while operating a motor vehicle in a public place.
• The Presence of a Child: A passenger under the age of 15 is in the vehicle at the time.

Understanding how Texas law defines “intoxication” is crucial to your defense. The state can prove this element in two distinct ways:

1. Per Se Intoxication (BAC of 0.08 or Higher)

If a chemical test of your breath or blood shows an alcohol concentration of 0.08 or more, you are legally intoxicated. This is direct, scientific evidence, and the prosecution’s case becomes highly focused on validating the test results.

2. Loss of Normal Mental or Physical Faculties

Even without a BAC test, the state can secure a conviction by proving you did not have the normal use of your mental or physical faculties due to alcohol or drugs. This is proven through circumstantial evidence, which is often more subjective and open to challenge. Prosecutors may present evidence such as:

• Poor driving (swerving, speeding, erratic behavior)
• Slurred speech and bloodshot eyes
• The odor of alcohol or marijuana
• Poor performance on Standardized Field Sobriety Tests (SFSTs)
• Admission to drinking
• The presence of open containers in the vehicle

The key takeaway is that a DWI with a child passenger charge can be filed based on either scientific test results or the arresting officer’s observations and opinion.

The Severe Penalties for a Conviction

A conviction for this offense triggers a cascade of severe penalties, beginning with mandatory felony-level punishment and extending into every area of your life.

Direct Criminal Penalties (State Jail Felony):

• Incarceration: 180 days to 2 years in a state jail facility. Unlike prison, state jail focuses on confinement with limited rehabilitation programs.
• Substantial Fines: A maximum fine of $10,000, plus court costs and fees.
• Driver’s License Suspension: Automatic suspension of your Texas driver’s license.
• Ignition Interlock Device (IID): The court will likely require the installation of an IID on any vehicle you own or operate as a condition of regaining your driving privileges. You bear the cost of installation and monthly monitoring.
• Community Service: The court can order hundreds of hours of community service.

The Lifelong Collateral Consequences:

Beyond the courtroom, a felony conviction creates a permanent “civil death” that can devastate your future:

• Loss of Parental and Custody Rights: This is one of the most immediate and devastating consequences. In any family law proceeding—divorce, custody modification, or Child Protective Services (CPS) investigation—this conviction will be used as powerful evidence to argue that you are an unfit parent. It can lead to loss of custody, supervised visitation only, or termination of parental rights.
• Permanent Felony Record: This will appear on every background check for employment, housing, professional licensing, and loans for the rest of your life.
• Loss of Fundamental Rights: You will lose the right to vote (while incarcerated/on parole) and the right to own or possess firearms under federal law.
• Professional License Revocation: Careers in law, healthcare, education, real estate, and any state-licensed field will be terminated.
• Immigration Consequences: For non-citizens, this is a deportable offense and will bar almost all forms of future immigration relief.

How Barton & Associates Builds Your Defense Strategy

Facing this charge requires a defense that is both scientifically rigorous and strategically compassionate, acknowledging the unique personal stakes involved. We attack the state’s case at every vulnerable point.

1. Challenging the Traffic Stop and Arrest

The Fourth Amendment protects you from unreasonable searches and seizures. We file detailed motions to suppress evidence, arguing:

• The officer lacked reasonable suspicion to initiate the traffic stop.
• The officer lacked probable cause to arrest you for DWI.

If the stop or arrest was unlawful, all evidence gathered after it—including BAC tests and officer observations—can potentially be thrown out.

2. Attacking the Chemical Test Evidence

If the state’s case relies on a breath or blood test, we conduct a forensic-level investigation:

• Breath Tests: We subpoena the maintenance, calibration, and diagnostic records of the Intoxilyzer machine. We challenge the officer’s certification and the 15-minute observation period.
• Blood Tests: We scrutinize the entire chain of custody—from the phlebotomist who drew the blood to the analyst who tested it. We challenge the lab’s accreditation, methodology, and compliance with forensic standards. We may seek independent retesting of the blood sample.

3. Challenging the Officer’s Observations and SFSTs

We vigorously cross-examine the arresting officer on their subjective conclusions. We use the National Highway Traffic Safety Administration (NHTSA) manuals to demonstrate improper administration of field sobriety tests. We present alternative explanations for symptoms like slurred speech (nervousness, fatigue) or poor balance (medical conditions).

4. Negotiating for a Reduced Charge or Sentencing Agreement

Given the severe mandatory minimums, a key strategy is often to negotiate with prosecutors before a formal indictment. We leverage weaknesses in their case to argue for a reduction to a lesser offense, such as a misdemeanor DWI or reckless driving. While not ideal, this can avoid a felony conviction and its associated destruction of parental rights.

The Critical First Steps to Take Immediately After Arrest

Your actions in the first 24-48 hours are pivotal. The system will move quickly against you; you must move faster to protect yourself.

1. INVOKE YOUR RIGHT TO REMAIN SILENT. Do not answer questions from police, CPS investigators, or anyone else. Do not try to explain or justify the situation. Anything you say will be used to establish your guilt and may be used against you in a concurrent CPS case. State clearly: “I am invoking my right to remain silent and I want an attorney.”
2. DO NOT DISCUSS THE CASE WITH ANYONE. Assume all jail calls are recorded. Do not discuss details with family or friends, as they could be subpoenaed to testify.
3. CONTACT A DEFENSE ATTORNEY WITH EXPERIENCE IN FELONY DWI AND FAMILY LAW. You need an attorney from Barton & Associates immediately. We will intervene with law enforcement and, if necessary, with CPS to protect your rights from the start.
4. DOCUMENT EVERYTHING. As soon as you are able, write down a detailed timeline of the entire day and the arrest, while your memory is fresh.

Why Barton & Associates is Your Essential Defense Team

This specific charge requires a law firm with dual expertise in high-stakes DWI defense and the intersecting world of family law consequences.

• Former Prosecutorial Insight: Our attorneys include former prosecutors who have built these exact cases. We know their strategies, their evidence priorities, and where their arguments are most vulnerable.
• Board-Certified Criminal Defense Specialists: Our attorneys are recognized by the Texas Board of Legal Specialization for their expertise and experience in criminal law.
• Compassionate, Family-Focused Advocacy: We understand you are not just a defendant; you are a parent. We fight with equal aggression in the criminal courtroom and provide clear, steady guidance to help you navigate the parallel threat to your family.
• Resources for a Scientific Defense: We have the resources and network to hire top forensic toxicologists, accident reconstructionists, and medical experts to challenge the state’s technical evidence.

Your Future and Your Family Are at Stake. Act Now.

A DWI with a child passenger charge is a legal and personal crisis of the highest order. The state will seek to punish you as a felon and may seek to separate you from your child. Hope is not a strategy; proactive, expert legal defense is.

Do not speak to investigators. Do not wait for your court date.

Contact Barton & Associates, Attorneys at Law, immediately at 210-500-0000 for a confidential and urgent case evaluation. We will begin the critical work of protecting your rights, challenging the evidence, and fighting for the best possible outcome for you and your family.

Main Category: Criminal Defense
Practice Area Category: DWI & Intoxication
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000