What’s the Penalty for DWI with My Kids in the Car?

In most cases, a first-time DWI is a misdemeanor under Texas law. But if there was a child–i.e., a person under the age of 15–in your vehicle at the time of your arrest, prosecutors can charge you with felony DWI. Specifically, a state jail felony, which can lead to a jail term of up to 2 years.

Divided Appeals Court Affirms DWI Conviction

Despite “Inconsistent” Statements from Arresting officer

Child in Backseat of Vehicle

For example, a woman from Denton County was sentenced to one year in jail after she was convicted of committing a DWI while two young children were in her car. The woman challenged her conviction based on newly discovered evidence and inconsistent statements made by the arresting officer at her trial. But a divided three-judge panel of the Texas 1st District Court of Appeals nevertheless upheld the conviction.

This case began when a Lewisville police officer “noticed a disabled vehicle stopped in a turning lane,” according to court records. The officer decided to conduct what is known as a “community caretaking stop,” i.e., he stopped to see if the driver of the vehicle required assistance. The defendant was behind the wheel of the disabled vehicle. She told the officer that her tires had blown out. The officer confirmed the two left-side tires were flat.

A tow truck arrived at the scene to retrieve the defendant’s vehicle. The truck driver told the officer that, based on his observations, it was likely the defendant “had hit the curb,” and that was what caused the flat tires. At this point, the officer said he “began to suspect that [the defendant] was intoxicated.” The officer proceeded to administer a series of field sobriety tests, which led him to conclude the defendant was in fact intoxicated.

The defendant later consented to a blood test. The test reported back a blood-alcohol concentration (BAC) of 0.135 percent, which was above the Texas legal limit of 0.08 percent. Based on all of this, prosecutors charged the defendant with DWI with a child passenger.

At trial, the defendant challenged the officer’s decision to administer the field sobriety tests, as he did not have “probable cause” to believe she was intoxicated at the time. The defendant requested the judge instruct the jury it could disregard the officer’s testimony and the evidence he obtained–essentially, the prosecution’s entire case–if it believed or “had reasonable doubt” that his actions were unconstitutional. The judge declined to issue the instruction. The jury subsequently found the defendant guilty.

After the trial ended, the defendant learned that the device used to analyze the sample from her blood test was defective and taken out of use. Based on this new evidence, she asked for a new trial. The judge denied this motion as well, prompting the defendant’s appeal to the First District.

A majority of the First District panel found the trial judge did nothing wrong in either refusing to issue the requested jury instruction or denying the motion for a new trial. The third judge, Gordon Goodman, issued a dissenting opinion. Judge Gordon agreed with the defendant with respect to the trial court’s refusal to issue the requested jury instruction. He noted the arresting officer’s “own testimony” created doubt as to his credibility. Notably, the officer testified that the defendant “did not show any signs of intoxication” during their initial encounter. After he made the arrest, the officer later claimed he could smell a “faint odor of alcohol.”

Critically, Judge Goodman said the officer’s “testimony about the field sobriety tests was inconsistent.” On cross-examination, the officer conceded the defendant’s physical faculties were “normal” at the time of the tests, and that there was “nothing” wrong with her mental faculties. The defendant did fail to follow some of the officer’s instructions during the testing, but the officer again conceded this may have been due to the fact the defendant was “distracted” rather than intoxicated.

Charged with Felony DWI? Need Help?

Get Help from Houston DWI Lawyer Tad A. Nelson Today!

Police officers are not perfect. They are human like the rest of us. And it is important to challenge the accuracy and credibility of their statements, especially when you are facing a felony DWI charge.

If you or a loved one were arrested and charged with any drunk driving-related offense and need representation from a qualified criminal justice lawyer, contact Houston DWI Lawyer Tad A. Nelson today by calling 713-489-7373.

What’s the Penalty for Driving Drunk with My Kids in the Car?