In most cases, a first offense DWI in Texas is a misdemeanor. But there
are factors that can increase the severity of any DWI charge. One of those
is the presence in the car of a passenger under the age of 15. Under Texas law,
driving while intoxicated with a child passenger under 15 is a state jail felony. If a parent is convicted and sent to jail, the
entire family will suffer.
With this much at stake it is critical for anyone facing DWI with a child
passenger charges to put up an aggressive defense. Fortunately, fighting
these charges is very much like fighting any DWI charge.
One of the first issues in any drunk driving case is whether the arresting
officers had reasonable suspicion to pull the car over in the first place,
or sufficient probable cause to make the arrest. If not, the charges can
If field sobriety tests were given at the scene, their reliability can
be attacked in court. Tests like the walk-and-turn, one-leg stand and
horizontal gaze nystagmus all depend on the subjective observations of
the arresting officer. In addition, they fail to take into account factors
like age, physical or medical condition or fatigue, which can skew the
results and result in an improper arrest.
Finally, the accuracy of blood or breath tests can be questioned. If the
breathalyzer machine was not correctly calibrated prior to the test, or
if the officer administering the test failed to follow the proper test
protocol, the results can be inaccurate. A careful DWI defense lawyer
will scrutinize the test record to find any basis for a challenge.
Source: Tex. Penal Code § 49.045